All drivers in the City of Buffalo and across New York State are required to carry automobile insurance.  When you sue the other driver involved following a car accident, your personal injury attorney will usually request a copy of the declarations page from your car insurance.  This page outlines the coverage that you have under your own automobile insurance policy.

There are many reasons your personal injury attorney will want to look at your car insurance.  In some cases, you may have purchased coverage that is available to you to protect you against uninsured or underinsured drivers.  If this occurs, your attorney will wish to take steps to protect your rights to pursue this additional coverage. 

Also, under specific circumstances, your insurance company may have a right to seek recovery of money it paid out for medical and unemployment expenses following your injury.  For example, under New York State Law your auto insurance company must pay you up to $2,000 per month in lost wages if you cannot work following a car accident.  If you have purchased Additional Personal Injury Protection (APIP), your insurance company may pay you additional lost wages in excess of the $2,000 limit required by law. 

These additional lost wages, however, may be recovered by your insurer as part of any damages you receive from the other driver.  In this situation, your lawyer will want to be aware of the potential impact of any claim on the damages you receive and make sure you fulfill all of your legal responsibilities to your insurer following an automobile accident.

Parents in Buffalo should be aware that the U.S. Consumer Product Safety Commission and Baby Matters LLC, of Berwyn, Pa., have issued a voluntary recall of an apparently dangerous product.  30,000 Nap Nanny® portable baby recliners sold between January 2009 and July 2010 have been recalled.  These items were sold in retail stores nationwide and online, including at www.napnanny.com. 

This recall follows a report of a four month old girl who died in a Nap Nanny® being used in a crib.  Preliminary reports indicate that she was found in her harness hanging over the side of the product, where she had become caught between the Nap Nanny® and the crib bumper.  Use of the product in a crib is against the product’s instructions.

CPSC and Baby Matters have received 22 reports of infants hanging or falling over the side of the product even though most of the infants were in the harness.  Infants can partially fall out or hang over the side of the Nap Nanny® even while the harness is in use.

More information can be found at www.cpsc.gov/cpscpub/prerel/prhtml10/10309.html.  The company’s recall hotline is (800) 638-2772.

If you have purchased this item, please discontinue using it immediately.  If you have lost a family member as a result of a dangerous product and wish to discuss your legal rights following a wrongful death, please feel free to call my office at 716-542-5444.  We would be happy to help you.

When a Buffalo resident suffers a personal injury in a car accident, whether that person can pursue a personal injury claim is governed by New York State’s No-Fault Law.  Under this system, the injured party must have suffered a “serious injury” before a personal injury case may be pursued.

The law defining what constitutes a serious injury was written many years ago, and there have been great advances in medicine since then.  As a result, the New York State legislature is in the preliminary stages of considering the addition of new categories to the legal definition of serious injury.

While the current definition of serious injury includes some clearly objective injuries such as dismemberment or fractures, it also includes much more vague definitions, such as “permanent consequential limitation” and “significant limitation.”  While the proposed changes do not eliminate these vague categories, they do add several new, more objective categories to the definitions.

These changes were deemed necessary by the sponsors of the bill because the current system often leads to seemingly unfair situations.  For example, a person with a broken toe may, by law, pursue a serious injury claim because he or she suffered a fracture.  In contrast, a person who has suffered several torn knee ligaments must prove that this injury fits within one of the more vague categories of serious injury, or the case may be dismissed.

The proposed new categories largely consist of injuries that were not easily detectible when the original law was written, but now are much more easily diagnosed by doctors.  The proposed new categories are:

• a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
• injury to any part of the spinal column that results in injury to an intervertebral disc;
• impingement of the spinal cord, spinal canal, nerve, tendon or muscle;
• surgery.

This bill is still in the very early stages of the legislative process and, if it survives at all, is likely to be modified before being passed.

Buffalo residents who have been involved in personal injury lawsuits may have heard the term “joint and several liability.”  Joint and several liability applies in many cases where more than one defendant is found responsible for causing an injury.  It refers to the terms under which the responsible parties must pay damages for the injury.

In New York State cases involving joint and several liability, the injured party may collect the full amount of any economic damages from any party found liable until the entire judgment is paid in full.  There is no requirement that the responsible parties pay an equal – or even a fair – share.  As a result, if one of the responsible parties does not have enough assets to pay its share of the award, the other defendants must make up the difference.

Joint and several liability only applies to economic damages, such as medical expenses and lost wages.  For non-economic damages (such as pain and suffering), a defendant who is found less than 50% liable is only required to pay that percentage of non-economic damages for which he or she was found responsible.

There are several exceptions where joint and several liability does not apply.  If you have any further questions regarding this subject, you should consult an experienced personal injury attorney.

Nearly all Buffalo personal injury attorneys have been involved in situations where an insurance company tried to deny coverage following a personal injury accident.  Sometimes this occurs early in a case, and the insurance company attempts to avoid involvement in the whole process.  Fortunately, New York State law addresses when an insurance company may refuse to defend an insured person in a personal injury lawsuit.

Whether an insurance company is required to defend an individual accused of causing a personal injury is determined by comparing the allegations in the complaint with the terms of the insurance agreement.  It does not matter if the insurance company believes the allegations to be untrue or frivolous, nor does it matter if it is ultimately determined that the defendant owes nothing.  If the allegations fall under the terms of the insurance contract, the insurance company must defend the insured person. 

Moreover, the New York State Court of Appeals has ruled that even if the allegations in the complaint do not fall under the insurance contract, but the insurance company has actual knowledge of facts establishing a reasonable possibility of coverage, it still must defend the insured person. 

Finally, any ambiguous language in an insurance policy must be interpreted in favor of the insured, not the insurance company.

If you have suffered a personal injury and have any questions regarding insurance coverage, please feel free to call my office at 716-542-5444.

When a person is injured as a result of a defective condition on a public sidewalk, who they can proceed against to recover monetary damages will depend on where they are New York State.  This is because who is responsible for maintaining a public sidewalk depends upon the laws of the municipality (for example, the local ordinances of the City of Buffalo) where the injury occurred. 

If there is no local ordinance regarding who is responsible for maintenance of public sidewalks, then the municipality is responsible for ensuring that sidewalks are properly maintained.  In this situation, the municipality may be sued when an injury occurs on a defective sidewalk.

When there is a local ordinance in place requiring property owners to maintain the public sidewalks abutting their property, who is liable becomes a little more difficult to determine.  If the ordinance merely states that the property owner is responsible for maintaining the sidewalk, this is not enough for the property owner to be held liable should a personal injury occur.  Instead, the ordinance must specifically state that if the property owner fails to maintain the sidewalk, he or she is subject to liability should an injury occur.

A property owner may also be liable under certain other circumstances, such as having created the defective condition of the sidewalk that led to the injury.  If you have suffered an injury in a fall and have questions about what to do, please feel free to call my office 716-542-5444.  We would be happy to help you.

When a Buffalo resident suffers a serious personal injury, he or she may need to see several different medical providers to receive proper treatment.  If there are different types of injuries involved, he or she may need to see a number of medical specialists.  Hospitals and rehabilitation services, such as physical therapists, may also provide medical attention.

So how is all this medical information submitted to the judge or jury if a case goes to trial?  Obviously, if a person has treated with a dozen or more medical providers, bringing all of them in to testify at trial would lead to a very long, complicated event.  It would also require these medical personnel to take time off from their practice to appear in court. 

As a result, while it is legally permissible to bring all of these people in as witnesses, it is not a common occurrence.  In the interest of conserving court time, the lawyers involved often choose the medical providers who they feel best represent the case and limit the testimony to these individuals.

In some cases, a lawyer may also ask to have medical records submitted as evidence without the person who prepared them actually coming in to testify.  This may be allowed if the records qualify as “business records” under New York State law.

Back and neck injuries are among the most common types of injuries arising from personal injury accidents in the City of Buffalo.  In some cases, these injuries may include what is called bulging or herniated disc in the spine.

The disc referred to in these types of injuries is the softer material between the individual vertebrae that make up the spine.  Its general purpose is to cushion the bones during movement so that they do not rub together or squeeze other material, such as nerve roots, between them during movement.

An intervertebral disc consists of thick fibrous tissue, called the annulus, which surrounds and gives shape to the softer, more jelly-like material inside.  This interior material acts to cushion the spine.  For various reasons, including aging and trauma caused by an accident, the annulus may be damaged. 

When the annulus is still intact but the material inside the disc is pushing out, causing the disc to have an asymmetrical appearance, it is usually considered a bulge. When the annulus is torn sufficiently to allow the interior material to break through the covering, it is usually referred to as a herniation.  Please keep in mind, however, that there is no clear cut defining line between a bulge and a herniation.  The terms just refer to different degrees of the same type of injury.

As a result, what one doctor may call a bulge, another may refer to as a herniation.  If you have suffered this type of injury, you should be sure to discuss the details with your medical provider so that you have a sufficient understanding of how to proceed.

Parents in Buffalo know how difficult it can be to see their children suffer, even from minor problems.  Personal injury and medical malpractice cases involving children can be among the most difficult emotional experiences for all parties involved.

In a recent medical malpractice case, Lizzette Cain brought a claim against the medical providers who oversaw the birth of her now four year old son, Jayden.   During the first two years of his life, Jayden suffered from Erb’s palsy in his right arm.  Erb’s palsy is a condition caused by stretching of, or damage to, nerves in the shoulder that leads to limited strength and mobility in the arm.

During Jayden’s birth the medical personnel had applied traction to his head to relieve entrapment of his right shoulder.  In her case against the medical providers, Jayden’s mother claimed that this traction was the cause of Jayden’s condition and, given his size at birth, he should have been delivered by Caesarean section instead. 

The medical providers did not concede that they had made any mistakes in the delivery of Jayden, and the case proceeded to trial.  The jury apparently agreed with Jayden’s mother and awarded Jayden $485,000 in damages for his condition following his birth.

When explaining to our Buffalo personal injury clients how their case will be handled, we find that much of our time is spent explaining the terms that the legal system uses to define various things and events. 

So why do lawyers use so many difficult terms?  Well, as is typical of the law, there is no one easy answer.  Part of the problem is that the legal system we use in personal injury cases has been developed over several hundred years, and during that time, some of the terms that people may use in everyday conversation, such as “serious injury” or “negligence,” have been refined over the years to take on a very specific meaning within the context of the legal system.   

As a result, a word that has one meaning in everyday language may have a slightly different meaning when used in a legal sense, which can be confusing for clients.

A second problem related to the length of time over which are legal system has developed is that some archaic words, or even foreign terms, have continued to be used by lawyers long after they have fallen out of normal use in the English language.  In other words, lawyers sometimes use words that nobody else understands anymore.  For example, “tortfeasor” is a term used to refer to the responsible party in a civil case.  It is derived from an Old French term that translates as “wrongdoer.”

Recently, there seems to have been an informal shift away from the use of archaic and foreign words in the legal community.  Hopefully, this trend will continue and it will become easier for clients to understand what is happening in their cases in the future.