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 Work Place Injuries; Workers’ Compensation Lost Income Rates

March 23, 2012

People injured at work are entitled to lost income under workers’ compensation.

These are the maximum weekly income rates:

For accidents occurring within these dates:

7/1/07 to 7/1/08            $500.00

7/1/08 to 7/1/09            $550.00

7/1/09 to 7/1/10            $600.00

7/1/10 to 7/1/11            $739.83

7/1/11 to 7/1/12            $772.96

For example, if your accident occurred on August 1, 2007, your maximum weekly income rate would be $500.   If you accident occurred on July 10, 2010, your maximum weekly rate would $739.83.

Unfortunately, the weekly rate does not increase during the worker’s life.  In other words, a person receiving $500 per week based on an August 1, 2007, accident would receive the same rate today as well as the future.  

The rates effective July 1, 2012, have not been set by the Workers’ Compensation Board.  The rates are based on the weekly average wage of New Yorkers.

Sadly, there has been no similar increase in lost income for no fault and state mandated disability.  In an automobile accident, the no fault income rate has been fixed at the lower of either $2,000 per month or 80% of the person’s monthly wages.  On the disability side, New York State disability is still set at the shockingly low rate of $170 per week. 

Ironically, the workers’ compensation rates were changed to keep-up with no fault.  The compensation rates had lagged behind no fault’s rates, and working men and women could not survive on the low weekly wage of $400 per week under the old law.  Now, the compensation rate exceeds no fault.  We look to the legislature to correct this inequality of lost income for victims of accidents.     

If you have been injured in an on-the-job accident, please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 8/23/12,  

I would like to acknowledge our workers’ compensation counsel for providing this information.  Thank you, Robert Bergman of Fogelgaren, Forman & Bergman of New York City.

Getting a Recovery for Your Injuries; the ERISA Healthcare Lien

March 21, 2012

The injured client’s attorney has two jobs.

First, he must obtain the best monetary recovery possible based on the facts and the law.

Second, he has to get as much as possible of the settlement into the client’s hands.  He has to either fight or negotiate liens.  Such liens include Medicare, Medicaid, Public Assistance, workers’ compensation, and private health insurance.

Once an injured client gets a settlement, governments and insurance companies swarm around the money like a flock of buzzards over a dead animal.  These liens pick away at the settlement.  Sometimes, the lien holders seek to leave nothing to the client.

The unfairness of liens, particularly healthcare insurer liens under the ERISA law, is discussed in Professor Roger M. Baron’s excellent law review article, “The Revictimization of Personal Injury Victims by ERISA Subrogation Liens,” 45 Creighton Law Review 325 (2012).

Professor Baron is correct.  The injured client is “revictimized” by the healthcare insurer’s lien.  The health insurer has done nothing to get the recovery, but it stands ready to take money out of the client’s hands.  Sometimes it wants the entire settlement. 

There is hope.  Public Justice, the public interest law firm, took-up the injured clients’ cause in the recent case of US Airways, Inc. v. McCutchen,  663 F.3d 671 (3d Cir. 2011).  In this case the injured client’s health insurer sought the entire net settlement to pay-back its alleged lien.  The client, who was very seriously injured, would have received nothing!  The court ruled that this is inequitable, and the trial court must hold a hearing as to whether the health insurer is entitled to any share of the net settlement.

We see the McCutchen case as a first victory on the war on liens.

Mark E. Seitelman, 3/21/12,

Being Prepared for an Automobile Accident; Getting Non-Owned Auto Insurance

March 14, 2012

If you do not own a car you should consider buying non-owned automobile insurance.

This insurance will protect you in the event of an automobile accident with either a vehicle which is uninsured or unknown (the “hit and run”) or a vehicle which carries less insurance than your coverage.

We recommend this insurance in order to provide the best insurance protection to you and your family.  If you can afford this coverage we recommend it so that you are provided an extra measure of protection in the event of a very serious auto accident.

For example,

Assume that you did not own a car, therefore, you had no auto insurance.

Further assume that as a pedestrian you are injured by a hit and run vehicle.  You sustain a herniated lumbar disc, and you undergo back surgery.  You cannot return to work.

Under the minimal, required coverage of Motor Vehicle Indemnification Corp. (MVAIC), the most that you could recover is $25,000 from MVAIC.

However, let us assume that you purchased a non-owned auto policy with uninsured motorist coverage of $500,000.  You could recover the full $500,000 from your own insurance carrier.

The non-owned policy also protects you when you rent a vehicle or borrow someone else’s car. 

I recently purchased a non-owned automobile policy for my wife and me with $500,000 Supplementary Uninsured/Underinsured Motorist coverage as well as $500,000 bodily injury coverage.   The price?  A mere $99.

If you are able to afford non-owned automobile insurance, it is very wise purchase.

Mark E. Seitelman, March 14, 2012,

Getting Covered and Late Notice to Your Insurance Company

January 27, 2012

The Appellate Division, First Department, recently ruled that if the insurance company is to assert a late notice defense, it must do so as soon as reasonably practicable.  The insurer cannot delay in asserting this defense until after it completes its investigation.  See George Campbell Painting v. National Union Fire Ins. Co. of Pittsburgh, PA.

In this case the insurance company first asserted its defense of late notice many months after being notified.  The the insurer issued a letter asserting the defense of late notice many months later and after it had completed its investigation.  The court stated that this is too late, and this defense is deemed waived.

If you have a claim or lawsuit against you, be sure to notify your insurance company in writing as soon as possible.  The policy obligates you to provide notice as soon as reasonably practicable.  See Insurance Law sec. 3420.

If the insurance company does not assert the late notice defense promptly, it will not be able to disclaim coverage.

Therefore, after you have provided notice in writing look-out for any coverage letters or reservation of rights letters issued by your insurance carrier.  This will determine if there will be a problem with insurance coverage later down the road.

If you have an insurance coverage problem, please feel free to contact me for a free consultation at either 800-531-1434 or

Mark E. Seitelman, 1/27/12,

Getting a Recovery for Your Automobile Accident; New York Court Upholds 30 Day Rule on Reporting Accidents

October 14, 2011

New York’s highest court, the Court of Appeals, has upheld the rule that an injured client must provide to the insurance company within 30 days of the accidents.  This is necessary in order to get medical coverage under no fault.  See New York Presbyterian Hospital v. Country Wide Ins. Co.  (No. 216, October 13, 2011).

In this case the injured client was hospitalized for 7 days immediately after the accident.  He did not furnish the insurance company notice of the accident.  The insurance company first received notice of the accident about 36 days after the accident.  This occurred when the hospital sent its $48,000 bill to the insurance company for payment.

Although the hospital was timely in sending its bill (i.e., 45 days from the date of service), the insurance company had no obligation to pay because it did not receive notice of the accident within 30 days.

Therefore, it is clear that the 30 day rule will be applied strictly.  We have written previously about the 30 day rule.  An accident victim must hire an attorney immediately after an accident.  A client’s failure to file within the 30 days can result in the denial of all of his medical claims.

If you have been injured in an auto accident, please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 10/14/11,

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