By Scott D. Bergin.
When it comes to personal injury lawsuits, depending on whether the client is a plaintiff or defendant, the frequently asked questions can be different. McCabe & Mack LLP Managing Partner, Scott D. Bergin answers some of these questions.
If you have been involved in an accident, you probably have a lot questions:
Let’s try to answer a few of these questions:
A. There are two parts to every case, liability and damages. You need both to recover. The liability is who is at fault for the accident. Someone, other than you, must be at fault for the accident and your injuries. The damages in a personal injury case are the injuries you suffered and can also include things like lost wages and medical expenses.
If you are involved in a car accident, Section 5102(d) of the Insurance Law requires that you have a “serious injury” in order to be able to recover. Unfortunately, not every injury sustained in a car accident is a compensable one under the Insurance Law.
A. Generally the statute of limitations for an automobile or slip and fall case is three years from the date of the accident. The statute of limitations can differ if the case is against a municipality or involves an infant but generally, it is 3 years.
A. Whether right or for wrong, injuries have a certain value. Experienced practitioners know what the general value of injuries are. While not an exact science, there is a value range for most injuries and we can usually evaluate that range once we understand the liability issues and the injuries and medical treatment.
The amount the plaintiff receives from a settlement or verdict depends on what type of contingency retainer agreement is signed with counsel. The New York State Office of Court Administration permits two types of contingency agreements in personal injury matters. In the first type, the client agrees to be responsible for the disbursements and the client receives a third of the net recovery. For example, if the settlement is $100,000 and the expenses are $10,000, the plaintiff would receive $60,000 and the law firm would receive $30,000.
In the second type, the law firm agrees to be responsible for disbursements and the calculation changes slightly. Using the same example of a $100,000 settlement, the fee is calculated from the gross settlement of $100,000. The attorney fee would be $33,333.33, but the disbursements of $10,000 are then deducted from the net recovery leaving the plaintiff $56,666.67.
Personal injury settlements are not taxable.
A. The average personal injury case, whether it is a slip and fall, construction site accident or motor vehicle accident, typically takes anywhere between two to three years to resolve.
If liability is clear and the injuries are more than the coverage available, the case usually settles relatively quickly, sometimes within months. However, if liability and/or the injuries are questionable, there can be considerable litigation which may take years to resolve. Also, depending on where the case is sued, the court calendar can dictate how long a case will take to resolve. Some courts are backed up more than a year and with COVID, the backlog has only gotten worse.
As a result of the delays in the court system, many times it makes sense to try to mediate or arbitrate the case. This is called Alternative Dispute Resolution (“ADR”). The benefit of ADR is that the case will be decided more quickly with less costs and expenses incurred, while still producing a fair result. On many occasions I have acted as a mediator or arbitrator in personal injury matters and it has proven to be a very effective way of resolving those cases.
The decision to settle a case or proceed to trial rests solely with the plaintiff. As the plaintiff’s attorney, I can only counsel you as to what I think the case is worth and whether an offer is reasonable given the particular circumstances. Ultimately, you need to decide if you want to wait and take your chances with a jury, or settle for the amount offered.
When representing a defendant, I make it clear that the insurance carrier makes the decision to resolve a case or not. Sometimes a defendant is unhappy that insurance carriers resolve cases. This is especially true when the defendant feels they have either no or limited liability and/or they feel the plaintiff’s injuries are not genuine. Insurance companies often resolve cases for a nominal amount instead of taking the case to trial because it makes economic sense.
Most experienced litigators will tell you that settling a case is preferable to trying it. It is always better for the parties to resolve the matter for a sum that they can both live with versus putting their fate in the hands of six jurors. Settling the case also removes the possibility of appeals and other situations which can prolong a case.
A. In the case of an automobile accident, your insurance company will assign defense counsel, like McCabe & Mack LLP, to represent you. Your insurance company will pay the cost of defense and you are covered up to the amount of the liability limits of your insurance policy. You are required to cooperate with your assigned counsel. In the vast majority of cases, the plaintiff’s counsel is only interested in recovering from the insurance policy. It is extremely rare that a plaintiff’s counsel will go after the personal assets of a defendant. In the majority of cases the defendant has more than enough insurance coverage to satisfy any recovery.
A. Whenever there is any chance of exposure to personal assets, we advise our clients that they can have their own personal counsel involved, at their own expense, to monitor the case.
A. It is always best to consult with an insurance broker. However, with regard to insurance coverage, it is always better to have more coverage than less. The minimum coverage in New York is only $25,000.
If you have $250,000 or more in coverage, you are able to purchase an umbrella policy. Umbrella coverage typically starts at a coverage amount of $1,000,000 and is quite inexpensive in comparison to the underlying coverage. As the name might imply, umbrella coverage is over and above your auto and homeowners policy and can provide additional coverage in the event of a lawsuit. I encourage my clients to purchase as much coverage as possible and if possible, to purchase an umbrella coverage.
We hope you never need our legal services for a personal injury case, however if you do, we are here to help.
If you have any questions, please feel free to reach out to me personally at 845-486-6854 or by email.
Scott D. Bergin, a managing partner with McCabe & Mack LLP, is a graduate of Hamilton College and Albany Law School of Union University. An experienced trial litigator and mediator, Scott has more than two decades of successful verdicts and settlements in hundreds of personal injury-plaintiff, insurance defense, and environmental cases. He is a member of the NYS Trial Lawyers Association, the Defense Research Institute (DRI), and DRI of Northeastern NY. In the community, he serves as a board member with Astor Services for Children & Families/Astor Learning Center, the Rhinebeck Zoning Board, and the Rhinebeck Chamber of Commerce, where he was also a past president.
Scott and his wife Renee, a pharmaceutical representative, make their home in the Town of Rhinebeck with their children.