Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12, www.seitelman.com.

Getting a Recovery in a Bus Accident with a Discount Bus Line

Our last post discussed the safety of discount bus lines.  This post examines recovery problems.

There was an old Johnny Mercer lyric, “something’s gotta give.”  When a cut-rate bus company charges dirt cheap fares, the company will scrimp and save on insurance.  This can affect your recovery.  In other words, you may not have the same rights of recovery as you would against the more established, full price carriers, such as Greyhound.

First, let us look at No Fault insurance.  An off-price bus may be registered and insured in another state which does not require No Fault as does New York.  That means the passenger may not be entitled to medical and lost income insurance.

Second, the discount bus line may carry inadequate insurance in view of the risk of carrying 30 or more passengers.  The bus company may carry $1 to $2 million in insurance, which would be adequate for one person injured.  However, in the recent spate of accidents there have been numerous fatalities.  Where there are multiple passengers injured and killed, that amount can prove to be inadequate.  In the fatal bus accident in Bronx, fourteen people were killed, and in a recent accident in Virginia, four people were killed. 

Third, discount bus lines are mom and pop businesses with as little as one or two buses which are often leased.  They do not even own their buses!  There is little chance of collecting above and beyond the insurance.  However, national carriers, such as Greyhound and American Trailways, not only have more than adequate insurance, but the assurance that they can pay any judgment.

We have handled many different kinds of bus accidents.  If you have injured in a bus accident, please feel free to call us to discuss your case.

Mark E. Seitelman, 6/10/11, www.seitelman.com.

Discount Bus Accidents; What Price Safety?

In view of the rash of fatal bus accidents, a consumer should give serious thought as to safety.

Dirt cheap bus fares mean that buses and the drivers must work three times as hard to make a small profit.  That means overworked buses and drivers. 

Consider the following examples:

• Assume that Greyhound charges $40 for a one way ticket from New York to Philadelphia.  With 30 passengers, Greyhound makes $1,200 per run.  Greyhound can have the bus make one round trip a day with a revenue of $2,400  for the bus.  Also, the driver can take an adequate rest and meal break.  Generally, there will be a mid-trip rest break.  Cleaners and mechanics check the bus at both the New York and Philadelphia terminals. 
• Assume a discount bus line, Happy Go Lucky, charges $10 for its one way ticket.  If there are 30 passengers, then the revenue per trip would be $300.  The bus makes four round trips that day to achieve the same revenue of $2,400 that Greyhound earned.  The driver works a straight sixteen hour day with few rest and meal breaks; the bus does not take a mid-trip rest stop in order to save time.  There are no mechanics and cleaners checking the bus at the beginning and end of each trip.

In view of the cut-rate, unregulated nature of the discount bus business, it is a miracle that there have not been far more fatal accidents.

A future post will examine problems of recovering against discount bus companies.

Mark E. Seitelman, 6/7/11, www.seitelman.com.

Gettting a Recovery for New York City Bus Accidents; The Importance of the Incident Report

If you have the misfortune of getting injured on a New York City Transit Authority bus, the first rule is get an incident report.

We have had to refuse many potential cases because the clients did not have accident reports.  As a general rule, an unreported accident will result in either no recovery or a very limited recovery.  Generally, NYCTA will refuse to settle a case where there has been no report.

Here is an example of a case that we had to decline due to the lack of a report:

A pedestrian was injured while waiting to board a bus.

She was waiting on the sidewalk for the automated handicapped ramp to be pulled back onto the bus.  A piece of the ramp came loose and struck the client. 

Although it appeared that the NYCTA operator was negligent, we could not take the case because the client did not insist on medical assistance.  No incident report was taken, and the client had no way of proving an accident.  We had to decline this case. 

NYCTA’s rationale for refusing settlement is that without a report evidencing an accident, there is no independent proof that an accident has happened.  In other words, NYCTA will question whether the accident occurred.  By its own internal rules NYCTA bus operators must stop and have accidents reported.  Therefore, a bus operator will deny the accident because his failure to follow the procedures of getting the incident report is a rule violation and can result in discipline.  

Here is the NYCTA procedure:

• In an accident involving either bodily injury or property damage, the bus operator must stop the bus and call his dispatcher/supervisor for assistance.
• The bus will be taken out of service to await the NYCTA supervisor and NYPD police and an ambulance.  The non-injured passengers will be allowed to leave unless they are witnesses.
• An NYCTA supervisor will come to the scene and take a report as well as conduct some investigation, such as collect witness statements. 
• The NYCTA incident report will consist of many pages and will be separate from the NYPD accident report.  The NYPD report is a public record and can be obtained shortly after the accident.  However, the NYCTA report is a private accident report available only during the course of the litigation. 
• The injured person will be taken from the scene by ambulance.

One positive element of having the NYCTA and NYPD report to the scene is that the happening of an accident will not be an issue.  However, there may be issues as to how the accident occurred and whether NYCTA has ultimate responsibility.

If you have been injured by an NYCTA bus, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman Is in Super Lawyers

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

1. plaintiffs’ personal injury (general);
2. medical malpractice; and
3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

Mark E. Seitelman, 10/1/10, www.seitelman.com.

See an Attorney Early; Do Not Let Time Deadlines Pass

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10, www.seitelman.com.

Getting a Recovery for Your Personal Injury or Property Damage Against New York City Transit Authority

On cable news station NY1 there was a story showing the traps for an injured person in going without an attorney against New York City Transit Authority.  See story here.

       The motorist and his damaged vehicle.

Apparently, a NYCTA bus caused the front end damage.  The vehicle owner claims that it was an open and shut case against NYCTA, and he  was told so by a NYCTA supervisor at the scene.

The owner tried to settle his $3,800 collision bill.  He got nowhere by calling NYCTA and leaving numerous voicemails.  Finally, he sent a notice of claim to NYCTA by Federal Express 2 days short of the 90 day deadline.  NYCTA returned the notice as invalidly served.  NYCTA says that the statute clearly states that service must be made either by personal delivery at its office or by certified or registered mail.  Fedex does not count.

Therefore, the owner’s claim was denied as being improperly served.  He called the consumer reporter, “NY1 for You”, to air his story.  

 Here are some valuable lessons:

• Do not try to handle your own case.  It is little technicalities, such as this, which will trap a regular person.  A failure to properly serve a notice of claim will foreclose any recovery no matter the merits of your case. 
• Statutory requirements, such as the notice of claim on NYCTA, MTA, New York City, and other government entities, are strictly applied and are most unforgiving.  This case is an example.  Another example is timing.  A notice of claim served as much as 1 day late is invalid.
• A typical mistake in serving the notice of claim is serving it on wrong place.  The notice must be served at a specially designated office.  For example, a notice of claim served on an NYCTA garage would be invalid.  The notice must be served on NYCTA’s main office on Livingston Street, Brooklyn, New York.
• Another mistake is naming the wrong entity.  For example, the subways are owned and operated by NYCTA and not New York City.  The notice of claim must be served on NYCTA offices on Livingston Street.  A notice served on New York City at its Comptroller’s Office would be invalid.
• If you decide to handle the case on your own, call the Legal Referral Service (212-626-7373) for an initial consultation with an attorney who can provide some guidance.  The Legal Referral Service is a non-profit group supported by the bar associations of New York City.  It charges $35 for an half hour consultation with an attorney.   

If you have been injured as a result of an accident with NYCTA, MTA, NYC, or any other governmental entity, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 7/28/10, www.seitelman.com.

Hiring a Lawyer from the Internet; Questions to Ask

Before looking for an accident attorney on the internet, you should consider the following:

Can I get a referral of lawyer from a trusted relative or friend? 

We always recommend this route especially if the relative or friend has had a similar case and has been happy with the results.  In a sense, this attorney has been “pre-screened” or “pre-qualified” by your referrer.

If you cannot obtain a recommendation, then we suggest that you do some research and ask some questions before hiring an attorney found through the internet.  Although most of the best attorneys have a web presence, the best attorneys do not always turn-up on page 1 of Google.  Often, a law firm’s appearance on page 1 is solely the result of a concerted advertising and marketing effort, such as Google ad words (advertising) and Search Engine Optimization.  In other words, an attorney’s appearance on the first page of Google or Yahoo does not assure excellence.

Here are some questions to ask: 

• Does the attorney have credentials which set him apart from other attorneys?  For example:

Does the lawyer belong to a group which rates lawyers?   I am listed in New York Super Lawyers which lists the best lawyers in our region.  The Super Lawyers organization lists lawyers across the country.  I am also rated as Preeminent which is the highest rating given by Martindale-Hubbell, the leading directory of law firms in the nation.  I am also a member of the Million Dollar Advocates Forum which is limited to attorneys who have obtained verdicts and settlements in excess of $1,000,000.

Is the attorney a leader in his speciality?  For example, I am a  member of the Board of Directors of the New York State Trial Lawyers Association, and I am an active lecturer and writer in its Continuing Legal Education Programs.

• Has the attorney handled similar cases with some degree of success?  
• Has the attorney and his associate tried cases?  Many cases must be pushed to the courthouse door before there is a reasonable settlement. 
• Does the attorney have the resources to try my case?  It can take anywhere from $10,000 to $50,000 to try a case.  Does the attorney have the resources to finance my case?  Or will he settle short?
• How will the attorney respond to my questions and concerns during the life of my case?  Does the attorney have adequate staff, such as associate attorneys and paralegals, who can answer questions as well as move along the case.
• What is the lawyer’s operation like?  Check the attorney’s office.  Although it may not be luxurious, there should be a certain level of attractiveness, comfort, and order.  If the attorney is unwilling to replace a ripped chair, will he spend the necessary resources on your case?  If the office is a mess or seems disorganized, then your case will be handled in this manner.
• Are the attorney and his staff courteous and respectful?  You may be “living” with the attorney and his staff for a long time.  If they are not courteous and respectful at the beginning, then they will only get worse as time goes on. 

If you have been injured in an accident, please feel free to call us at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 6/14/10, www.seitelman.com.

Getting a Recovery in Your Accident Case; Exceptions to the New Health Insurance Lien Law

New York enacted General Obligations Law section 5-335 which abolishes health insurance liens in personal injury settlements.  See our prior post.

   The new law provides that a health insurer will not have a lien on the client’s net recovery.  In the past, the client’s health insurance company sought to recoup its medical bills paid for injuries and treatments arising from the accident.

This post discusses exceptions to the law.

I.  Cases that go to verdict

If a case goes to verdict, the health insurance company will have a lien.  This is because the injured plaintiff can prove and recover the medical bills, and that recovery gets passed along to the insurance company.

II.  “Self-funded” health plans under ERISA

A “self-funded” plan provided by the client’s employer would still have a lien under the federal law of ERISA which controls employee benefits, such as pensions and medical insurance.  The ERISA statute creates a lien.  The new New York law cannot overrule this lien.

The rationale for this lien is that the plan’s recouping of medical bills will keep the costs down of the medical plan for both the employer and its employees.

A “self-funded” plan is a health plan which the employer funds.  There is no insurance company although the plan may be administered by an insurance company, such as Aetna or Cigna.  This insurance company is called a Third-Party Administrator.  In a “self-funded” plan, the employer pays the employees’ medical bills.  The employer is not buying a group insurance policy with an insurance company, such as Empire Blue Cross/Blue Shield.

Generally, only very large national employers with thousands of employees provide healthcare through a “self-funded” plan.  Large employers, such as JP Morgan Chase Bank and Walmart, have the numbers and economies of scale to “self-fund” their employees’ medical bills.  It is safe to say that only employers with at least 5,000 employees will have the ability to “self’-fund” its medical plan.  It is also safe to say that small employers who employ less than 1,000 employees will have a “self-funded” plan.

III.  Medicare

If the client’s medical bills were paid by Medicare, then Medicare would have a lien for such bills.  Again, federal law creates the lien, and the new New York statute cannot overrule it.

         A recent federal rule mandates that insurance companies, defendants, and their counsel advise Medicare of a settlement involving an injured client receiving Medicare.  Therefore, many insurance companies refuse to make a settlement payment unless the issue of the Medicare lien is resolved.

IV.  Medicaid

The new statute provides that liens created by statute will not be affected.  This includes medical bills paid by Medicaid.  The New York City Human Resources Administration can have a lien for its medical bills under the Social Services Law.

Conclusion

At the end of a client’s case we have to consider either a healthcare lien, a Medicare lien, Medicaid lien, or any other liens against the recovery (such as public assistance).  Often, these liens can be negotiated and reduced. 

In every case, we attempt as negotiation and lien reduction as possible.

If you have been injured in an accident, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/26/10, www.seitelman.com.

Getting a Recovery for Your Personal Injuries; Do I Need the Judge’s Approval?

A client has asked:

I heard that the judge presiding over the World Trade cases involving injured volunteers and workers has refused to approve a proposed settlement.  I read that the settlement was recommended by both plaintiffs’ and defense counsel.

In my accident case if we reach a  settlement, mus it be approved by the judge?

The answer is no.  A judge does not have to approve an accident case settlement made by an adult.

The exception is where the client is either an infant, incompetent person, or the estate of a dead client.  In those situations, the court has to make sure that the settlement is in the best interests of the client.  See our prior posts discussing the settlement of a child’s case.   See parts I, II, III, and IV.  Another exception is a class action lawsuit.

In many instances the judge will handle negotiations in your case.  However, the judge does not have to approve the settlement.  If the case on trial, the court will want the client to agree to the settlement on the record in open court.  However, in no way is this an opportunity for the judge to approve or disapprove the settlement.

If you have been involved in an accident, please feel free to contact me for a free consultation at either 800-591-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/17/10, www.seitelman.com.