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 for Work Place Injuries; Workers’ Compensation Lost Income Rates

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 letters@seitelman.com.

Mark E. Seitelman, 8/23/12, www.seitelman.com.  

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.

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 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.

Getting a Recovery for Your Injuries in a Mediation; We Settled an Automoible Accident Case for $227,000 at Mediation

We recently settled a Bronx automobile injury in a  3 hour mediation before a private mediator. 

Mediation is an effective method of settling cases.   We have been using it for years.  See our prior post on mediation here.

Mediation is a settlement negotiation session.  Although it can be done by a judge in court, generally, mediation is done by a  private mediator hired by the parties.  In California it is popularly known as “rent a judge.”

For over a decade, private mediation has grown because  judges lack the time to settle a case at its early stages.  In our experience, most judges will spend the time  only after a jury is selected.  In a mediation, the mediator will spend whatever time is necessary.  

For example,

• In one of our larger cases the mediation lasted from 10 am to 5:30 pm.  This was an accident case arising out of a Brooklyn construction accident. 
• In another mediation, there were two sessions.  At the first meeting, lasting 2 hours, the issues were reviewed and discussed.  The mediator made a settlement recommendation to defendants.  Defense counsel had to review the case further with their insurance carriers in order to get more money.  We scheduled a second session, about 1 month later, when defense counsel obtained more settlement authority.  At the second session the case was settled.  This case involved a slip and fall at Fordham University in Bronx, New York.

If a case does not settle at the mediation, neither side is penalized.  Generally, both sides are in a “settlement mode” when agreeing to mediation. 

The parties must agree to a mediator.  Generally, mediators are retired judges.  However, some mediators are distinguished lawyers who have had track records as mediators.   In all of the above examples we  used lawyer-mediators.  Mediators are hired through various private services, such as JAMS and National Arbitration and Mediation.  Often, the service will also provide a meeting rooms or a suite of rooms at its offices.  For example, in a mediation at JAMS, the service provided a conference room and a separate, private room for plaintiff and his attorneys.

If you have been involved in an accident involving serious injuries, please feel free to call us for a free consultation at 800-581-1434 or write to us at letters@seitelman.com.

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 3/25/10,  www.seitelman.com.

Getting a Recovery for Disability Insurance Benefits; We Settled Client’s Case for $290,000

We recently settled a client’s disability insurance case for $290,000.

The client was a self-employed trucker, and he sustained permanent injuries in a truck accident in 2003.  He has been unable to work since that time, and due to his back injuries it is doubtful that the client would be able to return to work.

The client carried his own disability insurance.  His  insurance company failed to pay benefits since 2005.  Essentially, the insurance company kept stalling and gave one excuse after another for not paying.  For example, it had many physical exams over the course of three years even though it was clear that he was permanently disabled. 

We sued the insurance company, and in short order we obtained an excellent settlement which consisted of both past disability benefits from 2005 to the present and a lump-sum buy-out of the insurance company’s future obligations to pay on the policy.

If your disability insurance benefits have been denied or if the insurance company is stalling on making payment, please feel free to contact me for a free consultation at (800-581-1434) or write to letters@seitelman.com.

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 3/11/10, www.seitelman.com.