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

April 19, 2012

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,


Getting a Recovery from a Bankrupt Corporation; Good Luck!

April 6, 2012

If you have had the misfortune to get injured by a major corporation in bankruptcy, we have a bit of advice:  good luck!

We have a score of clients who have been injured by A & P, Food Emporium, Pathmark, St. Vincent’s Hospital, and Interstate Bakeries.  All of theses defendants are bankrupt even though they are still doing business (with the exception of St. Vincent’s).  Our clients injured by these corporations have little possibility of a recovery.

A case example is Hostess Brands.  We recently read that Hostess Brands, formerly known as Interstate Bakeries, has filed for bankruptcy protection for a second time on January 11, 2012.  Hostess makes many of America’s iconic breads and cakes, such as Wonder Bread, Twinkies, and Ding Dongs.

It seems that Hostess Brands is unable to compete.  It seeks further relief from its obligations.  Essentially, it wants to pay its debtors and retired employees less.  Otherwise, it threatens to liquidate the company.  

Its move to file for a second bankruptcy has delayed all settlements.  We had two clients injured by Interstate Bakeries trucks back in 2004, and we settled their cases almost six years ago.  We have yet to see a dime! 

Therefore, if a corporate defendant goes bankrupt, your recovery may either be delayed greatly or vanish. 

It is highly ironic that an injured person has less of a chance of getting a fair recovery from a bankrupt A & P than from a bankrupt Mom & Pop Grocery, Inc.   This is because A & P self-insures.  In other words, it has no insurance, and it can settle for pennies on the dollar.  In comparison, if Mom & Pop has an insurance policy, it is more likely that the injured client will get a fair recovery.

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  

Mark E. Seitelman, 4/6/12,

Getting a Recovery for Emotional Injury from Mishandling a Dead Fetus

February 2, 2011

Generally, the law is skeptical in allowing recovery for emotional injuries without an initial physical injury.

However, there is an exception:  the mishandling of a dead body.  We wrote about it previously here.

       The law allows the next of kin to recover for the mishandling of the corpse of  a deceased family member.  The plaintiff need not show that she sustained any physical injury.  Indeed, the claim is solely for emotional injuries.  The injured party need not show medical treatment, such as care by a psychiatrist.

The law is not limited to adult dead bodies.  The law allows a mother to recover for the emotional injury for the mishandling or destruction of her fetus.

Here is an example:

Mary had a stillborn baby in the hospital.  She told the hospital personnel that she wanted to bury the child.  Mary intended to bury the fetus next to the grave of another child who died shortly after birth.   

The hospital told Mary that it had to do an autopsy and various tests before releasing the body.  Mary persisted in trying to reclaim her baby’s body.  She got the a runaround, but after 4 weeks she finally got an answer.  The body was discarded accidentally.

Mary was allowed to recover for the injury of not having her child go to a proper burial as she had planned. 

If you have been injured due to the mishandling of the dead body of a loved family member, please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 2/2/11,

Mark E. Seitelman Is in Super Lawyers

October 1, 2010

    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.  

The New York Times     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,

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

July 28, 2010

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

Mark E. Seitelman, 7/28/10,

Getting a Recovery for Your Injuries When Defendant Becomes Bankrupt

July 14, 2010

A defendant’s bankruptcy could end your personal injury case.  It all depends upon the facts.

As a general rule, a corporation’s bankruptcy is a bad thing if you have a bodily injury claim or lawsuit..  It can either delay or end the case.

Here is a recent bankruptcy problem:

Our client was injured in a Bally’s gym.  We settled the claim before filing suit.  The client initially refused the settlement, but he re-considered and accepted it two months later.

At the time that we mailed the release to Bally’s, it filed for bankruptcy.  The payment of the settlement was stayed along with all other matters affecting Bally’s.  The settlement would not be paid until the bankruptcy court determined the amount that would be paid.

Finally, after about 1.5 years later, the bankruptcy court ruled that our client will be paid only 1% of the settlement offer that he accepted! 

In this case, as in all bankruptcies, the court has the power to determine how much of a settlement will be actually paid.  This is because the court must dole-out a bankrupt corporation’s limited, remaining assets on a fair and equal basis to all creditors, including landlords and suppliers.  Generally, an injured client could expect to collect only pennies on the dollar.

Also, in this case the defendant was self-insured.  There was no insurance to pay the claim.  All settlement funds had to come out of Bally’s very shallow pocket.

Also, a bankruptcy will greatly delay the payment of a settlement.  In another case involving another national company, Continental Bakeries, we had two clients in two different cases.  We  settled almost 4 years ago.  We have yet to be paid.

Therefore, a defendant’s bankruptcy can have a terrible impact on your case.  The individual facts of your case will have to be reviewed with your attorney.

Mark E. Seitelman, 7/14/10,

Getting a Recovery for Your Injuries When You Have Declared Bankruptcy

July 13, 2010

When filling for bankruptcy, be sure to list your personal injury case as an “asset”.

In the event that you fail to list your claim, then you could be guilty of bankruptcy fraud.  The ultimate penalty can be dismissal of the personal injury case.

For example:

Josh Jones has a mountain of hospital bills from his illness  as well as other debts, such as a car loan and credit cards.  He decides to file for bankruptcy.

Jones also has a potential claim for medical malpractice against the hospital.  He claims that his poor health is due to the hospital’s medical malpractice.

Jones files for bankruptcy to gain protection against the hospital bills and other debts.  However, he fails to mention his potential medical malpractice claim to his attorney.  The potential medical malpractice claim is not listed as an asset in Jones’s bankruptcy filing.

Jones’s petition is granted, and his debts to the hospital are discharged along with other debts, such as credit cards.  He then files a medical malpractice lawsuit against the hospital.

In the malpractice lawsuit, the hospital claims the defense that the hospital’s obligations to Jones were discharged in the bankruptcy.  Furthermore, by reason of the bankruptcy, any claim for malpractice belonged to the Trustee appointed by the bankruptcy court.  The hospital claims  that Jones cannot sue in malpractice.

In the malpractice case the court dismisses the case on the ground that Jones was precluded from bringing the malpractice suit due to his failure to disclose the bankruptcy.

Therefore, if you are going to file for bankruptcy be aware that:

  1. A failure to disclose your personal injury claim can result in you being precluded from recovering on your accident or malpractice case;
  2. You must disclose actual claims as well as potential claims (of which you are aware);
  3. A failure to disclose may be corrected if the correction is made before the debts are discharged; and
  4. You must be truthful with your bankruptcy attorney regarding any potential claims.

For a further discussion see “The Bankrupt Patient and Malpractice Litigation.” 

IMark E. Seitelman, 7/13/10,

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