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How Does the Marriage Equality Act affect New York Accident Victims?Posted On Sep 30, 2011
Same-Sex Marriages and Personal Injury Cases
Same-sex marriages changes New York personal injury law in three?areas, loss of consortium and services, wrongful death,?and the ?zone of danger? in negligent infliction of emotional distress.
?A.? Loss of Services for Spouses
It is well established law in New York that the non-injured spouse of an accident victim can have a claim for loss or consortium or loss of services.
Loss of services is the damage that the non-injured spouse sustained, such as loss of society and companionship, changes in their social life, changes in the management of the household and the children, and interruption and changes in sexual relations.? For example, if the non-injured spouse must take-up all of the household duties, such as cooking and cleaning, then the jury can consider this as damage.? If the non-injured spouse had to take-up all child-rearing responsibilities (such as taking the children to school, picking them up, and taking them to after-school activities), the jury can consider this and can assign a monetary loss.
In the classic case, one spouse is involved in a car accident.? That individual would have claims for his injuries.? However, even though the other spouse was safe at home when the accident happened, the non-injured spouse would have a claim or cause of action for loss of services if the injuries affected their relationship.? For example, if sexual contact ceased, this would be damages to the non-injured spouse.? The non-injured spouse could also claim damage if he or she had to assume all of the heavy housework duties that their spouse used to do.? The plaintiffs would be John Doe and John Doe or Jane Doe and Jane Doe.
The loss of services claim can only be interposed by a spouse.? It cannot be claimed by a ?partner? or ?significant other? or ?companion.?? Similarly, the loss of services claim cannot be made by a domestic partner who is registered with the City Clerk as part of a Domestic Partnership.
B.? Wrongful Death
Under New York law a ?significant other? or a ?domestic partner? or a ?mistress? or a ?companion? would have no inheritance rights.? However, now same-sex spouses have full inheritance rights.
In a wrongful death case, a surviving spouse (whether same-sex or not) would have certain rights of survival and lost support due to the death of the spouse.? Therefore, a surviving spouse from a?same-sex marriage would have certain survival rights and standing to prosecute a wrongful death case for?the deceased spouse:?a surviving spouse from a same-sex marriage could bring the lawsuit as well as share in the estate.? Often, where there are no children, the surviving spouse may take the entire estate.
C.? ?Zone of Danger? and Emotional Distress
In the situation where a loved one is injured, the courts have limited recovery to relatives who witness the injury and who are not injured.? The relative must be in the ?zone of danger.?? Additionally, the relative must have sustained a psychological injury.
For example, assume that the father is on the second floor of her house watching his child play outside.? The child goes into the street, and the father witnesses her child being struck and killed by a speeding automobile.? Even though the father suffered great psychological injury in witnessing the death of his child, the father would have no claim for the negligent infliction of emotional distress against the motorist. ?Under the law, the father was outside the ?zone of danger.?? However, let?s change the hypothetical and assume that the father is pushing a baby stroller across a street.? A speeding and reckless driver?goes through the light and kills the infant who is being pushed by the father.? In this case the father would have been within ?zone of danger?, and he would have a case against the motorist for the negligent infliction of emotional distress.? The father would have this claim even though she suffered no physical injury.
If we were to assume that a same-sex couple had a child (either biologically or through adoption), then it could be argued that either one of the parents would have a negligent infliction of emotional injury claim.
Of course, every case is different and the facts of your case may not fit neatly into the three scenarios as described above. ?However, as the laws change, your legal rights change as well.
Dos and Don'ts in Speaking With an Insurance Adjuster or Investigator about your Personal Injury casePosted On Sep 23, 2011
If you have been in an automobile accident you will be interviewed by both an adjuster from your own insurance company and by an adjuster from the other party's insurance company. You may also be interviewed, at some point, by an investigator. The adjusters/investigators are trying to minimize the amount of money that their company will be obligated to pay.
When you contact your insurance company following an accident, or if a representative from the insurance company contacts you, follow these tips to make sure you do not jeopardize your no-fault or personal injury claim during these phone interviews.DO:
Write down the name, address, and phone number of the insurance adjustor and insurance company.
Provide your full name, address and telephone number. Take notes and of the conversation.
Ask the adjuster if they are aware of any witnesses.
Be very general when you describe your injuries.
Tell the adjuster you will provide a complete, detailed, medical description of your injuries after you and your doctors have done a full assessment.DON?T:
Do not agree to an audio tape recording of the conversation. Insurance adjustors will engage you in an informal conversation in an effort to relax you and get as many details about the accident as possible.
Do not discuss anything but the basic facts of the accident: a) where the accident occurred; b) Date and time of the accident; c) type of accident ? motor vehicle, slip and fall.
You do not need to provide details about your work, such as income, schedule or details of what you do at your job. Do not agree to anything.DO NOT SIGN ANYTHING.
Don?t answer family questions. You are under no obligation to give any information about your family.
You are not obligated at this point to identify witnesses.
You are not obligated to give the adjuster the name of your doctor.
What to Do If You're in a Motor Vehicle AccidentPosted On Sep 18, 2011
After an accident you need to keep two things in mind. First, take actions that will prevent further injuries or damages from occurring. Anyone who is injured should get medical treatment as soon as possible, as injuries may worsen if treatment is delayed. If possible, move your vehicle out of the roadway to avoid being hit by another car. Second, you need to take actions that will preserve evidence of the accident and any resulting injuries or damages.
The very first thing to do after an accident is to stop your car. The situation can only be made worse by leaving the scene. You may be subject to criminal prosecution for leaving the scene of an accident, so if you are tempted to bolt, don?t.
Pull your vehicle over to a safe spot, out of traffic, if possible. If not, use cones or flares to direct traffic away from the stopped vehicles. It?s always a good idea to have these items in your car so you?ll have them if you ever need them.
Call for an ambulance, if necessary to treat any injuries incurred by anyone involved. You should avoid moving anyone who is injured if you are not trained in how to do so properly. This is because some injuries may be worsened if the person is moved improperly.
You should also call the police so that they can investigate the accident and file a report. Information in the police report may be valuable evidence later on. You need not rely solely on the police report for an investigation of the accident, though. You should record as much as possible about the accident on your own as well.
Take pictures of the accident scene. If you have a camera available to you, take pictures of the vehicles involved and any other property damage immediately. If not, come back to the scene as soon as possible with a camera to take pictures before skid marks or other evidence disappears.
You should also take pictures of the damage to vehicles or any structures with which the vehicles collided. Take plenty of pictures and take them from multiple angles. You don?t know now which pictures may be most helpful to you if you are sued, or if you sue the other driver. Take pictures of injuries as well, so that you will have visual proof of the extent of bruising, etc. You may wish to continue to photograph injuries over time to show the length of the recovery.
Make sure you get the names and addresses of everyone involved in the accident, as well as the names and addresses of any witnesses. It may be impossible to locate witnesses later on if you do not get their names and addresses at the time of the accident.
Get the advice of an attorney as soon as possible after the accident. The attorney can evaluate the evidence that you have gathered and determine what else may be needed. Don?t wait too long to contact an attorney as you only have 30 days to file a claim for No Fault benefits.
Smart Car Receives High Safety Ratings From IIHSPosted On Sep 14, 2011
By now, most of us living in the Long Island area have seen these cute little Smart Cars, which I?m sure will soon become the mode of transportation du jour for the college-age set. They seat two and are lighter in weight than the Mini-Cooper. Of course, with a car so small (it?s actually designated as a microcar) the first question that comes to mind is ?how safe can this car possibly be if I get into an accident??
Good news: the Insurance Institute of Highway Safety recently tested the 2008 Smart ForTwo for its ability to protect drivers in front and side crashes. The Institute?s test results generally demonstrate how well vehicles stack up against others of similar size and weight. The Fortwo, which is reported to be the smallest car for sale in the US market, earned the top rating of good for front and side crash protection. Its seat/head restraints earned the second highest rating of acceptable for protection against whiplash in rear impacts. Read the entire story from IIHS Here
Important to note is that the car was not crashed into heavier cars, SUV?s and minivans, which continue to dominate the LIE. When you stack the possibility of injury in one against the other, the beasts of the road will most surely win out.
Nursing Home Neglect | AbusePosted On Sep 10, 2011
As our population ages, ever-increasing numbers of seniors find that they are unable to care for themselves. Because friends and family are not always able to care for the needs of seniors,?nursing homes and assisted living centers have experienced a major surge in growth and in the number of seniors they care for.
Unfortunately, in some such facilities, elders are falling victim to neglect and abuse, both physically and emotionally. Oftentimes, nursing homes attempt to save money and maximize profit by using inadequately trained or unqualified help.? Some examples of the results of nursing home neglect include: injury due to a fall; bedsores, pressure sores, and decubitus ulcers; malnutrition/dehydration; and insufficient medical care. nursing home neglect may also result in inadequate supervision, which is especially dangerous for any patients suffering from dementia who may wander away from the home.
If your loved one has been the victim of abuse or neglect in a nursing home or an assisted living facility anywhere in New York State, contact the Law Office of Belil & Varriale, P.C. for a freeconsultation.
Please Don't Drive With Your Pooch on Your LapPosted On Sep 05, 2011
Recently, a bill was proposed in California that would make it illegal for motorists to keep pets on their laps.? It makes sense.? I was in a supermarket parking lot over this past weekend and pulled up near a car in which a poodle was licking the face of a woman who was attempting to steer her car into a space.? It was cute, but she was creating an extremely dangerous situation for herself and others.In the same way that a driving while eating and putting on makeup can lead to distractions while driving, so too, can a pooch.? Even worse, a dog can jump down to where the brake and gas pedals are situated causing you to potentially lose control of your car.? This is not safe for you, other drivers on the road, or for Fluffy.
Overview of New York Uninsured and Underinsured Motorist LawPosted On Sep 01, 2011
New York State requires every motor vehicle registered in the state to carry personal injury liability insurance with a coverage amount of at least $25,000 per person and $50,000 per accident however, many vehicles on our roads carry no insurance at all.? If you are involved in a motor vehicle accident with a vehicle which does not carry insurance, you may be able to file a claim against your own insurance company under your uninsured motorist policy, which is automatically a part of your insurance for a minimum amount of $ 25,000 per person and $ 50,000.00 per accident. Another situation in which you may be able to file for uninsured motorist benefits is if you are involved in a hit-and-run accident. These benefits take the place of a claim for pain and suffering against the uninsured responsible party.
Please note that if you are involved in an accident involving multiple vehicles, you can make a claim for uninsured motorist benefits as long as one vehicle involved in the accident is found to be uninsured.
In either of the above situations, certain conditions must be met under your policy or benefits may be denied.? These include timely notice to your insurance company and appearances at Medical Examinations or Examinations Under Oath, which may be requested by the insurance company.
If you are involved in an accident with a hit-and-run vehicle, it is important that you follow the policy conditions very closely.? For example, you must file an accident report with the police within 24 hours. In addition, you must file a sworn statement with your insurance company indicating that you cannot identify the hit and run vehicle.
Belil & Varriale, PC have extensive experience in handling Uninsured motorist arbitration and litigation and will assist you in obtaining the benefits you are entitled to.? Call now for a free consultation 631-828-5552.
If you were seriously injured in an accident caused by a driver who was carrying only the minimal amount of insurance coverage, the most you could receive for your? injuries, no matter how extensive would be only $25,000.? Since no one knows when an accident will happen, or what insurance coverage, if any, the responsible parties have, you need to make sure that your vehicle is properly insured.
To protect ourselves and our loved ones in the event of serious injury, make sure? that you have sufficient insurance coverage by purchasing supplementary uninsured and underinsured coverage.? This additional coverage is available on any auto insurance policy in which the liability limits are higher than the $25,000/$50,000 minimum.? Under New York law, every insurance company must offer this type of insurance with up to at least $100,000 per person and a total of $300,000 per accident.? Since the law does not permit you to insure yourself in amounts higher than you provide for others on the road, you must provide as much coverage for others as you have in uninsured and underinsured coverage for yourself.? The small cost in additional premiums is well worth it.
Take a look at your current auto insurance coverage.? Be sure to review the declarations sheet of your insurance policy which lists the type and amounts of insurance coverage you have on your vehicle(s)? If you have more than $25,000 in liability coverage, but do not have supplementary uninsured and underinsured coverage, contact your insurance company and purchase this insurance.? If you have only the minimum required coverage limits, ask your agent about increasing your limits and adding the supplementary uninsured/underinsured coverage to your insurance.? Even if you already have more than the minimum coverage limits, consider increasing your coverage to the maximum amount available.? You will be surprised as to how little this coverage costs.
Just as with uninsured motorist claims, you must comply with certain conditions under your policy or benefits may be denied.? These include timely notice to your insurance company and appearances at Medical Examinations or Examinations Under Oath.? In addition, if you receive an offer of settlement from the negligent party, you must give notice to your own insurance company of the settlement.
Belil & Varriale, PC have extensive experience in handling underinsured motorist arbitration and litigation and will assist you in obtaining the benefits you are entitled to.? Call now for a free consultation 631-828-5552.
This Week's Jury Verdict Pick - July 17, 2008Posted On Aug 28, 2011
PREMISES LIABILITY ? New York County Plaintiff awarded $17 Million for paralyzing trip on doorway saddle.
Santa Barbara v. Migdol Realty Management, LLC
A jury awarded nearly $17 million to a man who sustained a paralyzing spinal injury after he tripped through the entrance of his Bronx residence. The plaintiff, Juan Santa Barbara, tripped on a door saddle, fell through his doorway, over a small wall and down a stairway, fracturing his spine. Santa Barbara sued his landlord, claiming that the saddle was unreasonably tall and constituted a tripping hazard. The landlord argued that the area was safe, and it also noted that Santa Barbara was intoxicated at the time of the incident. The jury assigned 70-percent liability to the landlord and 30-percent liability to Santa Barbara. It awarded $24,162,000, but that award was reduced by 30 percent, to reflect Santa Barbara?s share of the fault.
Received from VerdictSearch New York