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 Injuries from Domestic Animals; New York’s Unique Rule

April 16, 2012

New York is unique regarding recovery from injuries from a domestic animal.

New York requires that the injured person prove that the animal had prior, violent propensities.  It is of no moment if the animal’s owner were negligent.

This rule has been repeated in two recent cases from the Appellate Division, Third Department.

In Hastings v. Savueplaintiff was injured when her car collided with a cow.  The cow had wandered from defendant’s farm, and the injured plaintiff claimed that the owners were negligent in allowing the cow to wander onto an adjacent highway. 

The court dismissed the case on the basis that there was no showing that the cow had vicious or abnormal propensities that caused the accident, such as a history of escape.  The court noted “discomfort” with the rule, but, nonetheless it was constrained to dismiss the case based on the law. 

In Bloomer v. Shauger, a distraught horse injured plaintiff.  In an unusual set of facts, Whiskey’s companion horse of more than 20 years, Topper,  was unable to stand and had to be put-down.  Defendant put-down Topper in view of Whiskey.  During the burial, Whiskey was distraught and upset.  It was pacing back and forth searching for Topper.  Plaintiff, a next door neighbor, heard the commotion and agreed to help.  Plaintiff tried to comfort and pet Whiskey.  The owner went to get a lead line.  Whiskey was calming, but the owner reappeared with a lead line, and Whiskey abruptly pulled-back his head.  Plaintiff’s finger was injured when it was caught in the halter.

The court dismissed the case.  It noted that there is no liability for injury from a domestic animal unless the animal displayed prior, violent propensities.  The court noted that there may have been negligence by the owner in allowing Whiskey to witness the death and burial of Topper, however, there still must be proof that the animal had a violent history.  Whiskey’s nervousness or agitation before the accident was not evidence of prior, violent propensities.  In this case, the horse’s conduct was typical for a horse. 

It is noteworthy that the courts treat large, domestic farm animals in the same manner as household dogs and cats.

If you have been injured in an animal attack, please feel free to contact me for a free consultation at either 800-581-1434 or

Mark E. Seitelman, 4/16/12,

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 Bicycle Injuries; Get a Police Report

April 6, 2012

The New York Police Department has started to track and report bicycle accidents in the same manner that it writes-up motor vehicle accidents.

This is good news for injured clients.

First, the NYPD and the Department of Traffic can study bicycle accident patterns regarding present and future bike lanes.  It will also allow study of the interaction of cyclists with pedestrians.  This will help traffic planning.

Second, this is good news in that injured bicyclists and pedestrians will have their accidents recorded in a detailed manner.  As we discussed many times before regarding motor vehicle accidents (see our prior post), the police report will prove the happening of the accident as well as identifying defendant.  

Therefore, if you have been injured in a bicycle-bicycle or bicycle-pedestrian accident, be sure to call the police to the scene so that a full accident report can be taken.

If you have injured in a bicycle accident, please feel free to call me 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,

Getting a Recovery for Cruise Ship Accidents; Are Cruise Ships Safe?

March 19, 2012

Are cruises safe?

The answer is a qualified “yes.” 

The cruise ship industry says that safety is its main concern.  The Costa Concordia wreck will be thoroughly investigated.   Emergency drills will be increased.

However, the Costa Concordia sinking revealed that the cruise industry has much to do.  

First, crews must be trained to handle the worst ship emergencies, such as fire and shipwreck.  At present, the majority of the crew are actually hotel workers, such as maids, busboys, waiters, and cooks.  They receive scant safety training.   They do not have the same safety culture as former navy sailors and  merchant marines who know the perils of the sea.  This culture and level of training must be imparted to the hotel staff.

Second, each major cruise ship needs a portion of its crew dedicated to ship safety and evacuation.  That means that these employees stand ready for these emergencies, and they have no other duties.  They should not be a waiters or maids pulled into service in an emergency.

The Costa Concordia was an extraordinary event due to extraordinary carelessness.   Although shipwreck is rare, the cruise industry must do more to prevent furture disasters.

Mark E. Seitelman, 3/19/12,

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