June 23rd, 2017

NY Leg Advances Change to “SUM” Legislation

The last two days I covered action in the New York Legislature to change the medical malpractice statute of limitations and make a modest change in where lawsuits can be brought (both of which still need the signature of the Governor).

Today, I cover a third piece of legislation, which while exceptionally important is virtually unknown to most. These posts come in a flurry because that’s how our Legislature works, passing bills  in a frenzy in the closing days of the annual January-June session.

This particular legislation refers to Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

Stop!!! Don’t leave!!!  Trust me, while the issue sounds boring, it could be the difference between bankruptcy or not to anyone seriously injured.

In New York, we have particularly crappy minimum levels of insurance, known as 25/50 on non-commercial vehicles. That means that, if you are injured by someone with such minimal insurance, no matter how badly, the most you can obtain from that insurance policy is $25,000. (The 50 refers to the aggregate of all claims from the collision.)

And if badly injured, you can’t work and pay your bills. Which is why bankruptcy is not uncommon amongst those victimized. Unless you protect yourself.

Unbeknownst to most folks, there may be a second policy at play — your own — if you own a car. This is the SUM insurance if the car that plowed into you and broke your back has that minimal insurance.

Now here’s the catch, and the reason I write: The default on the SUM policies is a mere 25K. So even if you are a high earner, bringing home the family bacon, and have a $500K bodily injury policy of  your own, it won’t matter if you don’t read the fine print. Because that $500K is only to protect the person that you injure. It isn’t for yourself.

Yeah, it’s in the fine print. Most don’t know about it. Even one legislator I spoke to a couple of years ago was so unaware of it that, when her child was injured, was stuck with that minimal policy. She had no idea.

And, before I get to the legislative fix, one more point. That SUM policy only comes into play if your own policy is larger than the car that hit you. So, in other words, if the car that ran the light and clobbered you had a 25K policy, and you have a 25K SUM policy, you don’t get an extra 25K, because you would only be entitled to the difference between the two.

OK, now on to the fix. The New York Senate passed a bill (S5644A) in the waning hours of the legislative session to change the default from 25K SUM insurance for yourself to be the same as the amount of bodily injury coverage you have selected to protect others.

So if you have a 500K bodily injury policy, your default would be 500K SUM. You can, of course, decline it if you want. But most people who feel the need to buy insurance at higher levels aren’t the types of people who generally would decline.

This bill passed, as had the medical malpractice bill and the venue bill, with wide bipartisan support. And by wide I mean 62 out of 63 votes.

Unfortunately, the legislature adjourned for the session as the Senate passage came too late for the Assembly to vote. It will only come to the Assembly floor if they are called back into session, a possibility given that there is a large, unresolved issue of mayoral control of NYC schools.

Otherwise, it is wait till next year.

In the meantime, if you are renewing your auto policy, look for that part about SUM coverage and make sure you get as much as you can. It is, relatively speaking, dirt cheap, which is why your broker may not even bother to mention it to you. But it can make all the difference in your life if some underinsured car clobbers you.

And one day I’ll come back to discuss our ridiculously low 25/50 auto insurance policies.

 

 

June 22nd, 2017

NY Legislature Amends Venue Law for Lawsuits

New York’s counties

As the New York Legislature raced to a close yesterday, I wrote about a change in the statute of limitations for medical malpractice cases.

But that wasn’t the only change that affects the personal injury field. There was also a change as to where lawsuits can be brought.

Currently, a lawsuit can generally be brought either in the county where the plaintiff resides, or the county where the defendant resides. Thus, if someone from Manhattan and someone from Suffolk were involved in an auto collision in Nassau — which sits between the two for you non-local readers — the plaintiff could choose either Manhattan or Suffolk as the venue for the lawsuit. But not the county in between where it actually happened.

But late yesterday both the Senate and the Assembly passed a bill to amend that to include also the place where that collision took place, adding the words in all caps to CPLR 501(a):

Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; THE COUNTY IN WHICH A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS GIVING RISE TO THE CLAIM OCCURRED; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.


While this provides a bit more flexibility for the individual that chooses the forum, the practical application is that one may now bring suit where important eye witnesses are most likely located, thereby increasing the chance one will be able to get them into court for trial.

A good tool for the lawyer’s toolbox. The bill passed with very wide bipartisan support and now goes to the Governor for signature.

 

June 21st, 2017

NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases (Updated!)

A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the date of discovery in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.

The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.

The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.

A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.

While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.

This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.

Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.

The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.

This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.

Updated: The Assembly has now passed the same bill. It goes to the Governor for signature.  He had previously been a supporter of the law.

 

June 1st, 2017

Crashing Through the House

Daniel Sajewski drover his mother’s Mercedes right through a house

When I write a headline entitled “Crashing Through the House,” it’s most likely because the car and driver literally crashed through a house.

We start our little story back in 2012 when 23-year-old Daniel Sajewski, Jr. crashed his father’s Mercedes in through the front picture window of a home and right out the back. You can see the picture here — in through the front and right out the back.

Ya’ think there might be some law out of this? That’s why I’m here. You’re welcome. Let’s get started.

First off, and coming as no great surprise to anyone, Sajewski was bombed out of his mind, blowing .30 on the breathalyzer, more than a wee bit over the limit in any jurisdiction that has any laws at all. (Depending on which story you read, he was downing shots of Jack Daniels, tequila and drinking beer.)

And then there was the part about Sajewski asking his then-girlfriend Sophia Anderson to take the rap, and claim she was the driver. He promised, according to news reports, to cover her legal bills and take her on vacation.

I’m betting you’ve already guessed that this deal, shall we say, came apart.

Sajewski had, at the time, six outstanding warrants on six different cases, suggesting he was not exactly a leading light in his community. He’d been charged with drinking on the subway, possession of marijuana and failure to complete community service for a previous conviction.

He had a record for petty theft and other drug possession charges, as well.

Sajewski ultimately pled guilty to driving while intoxicated, reckless endangerment and making false statements. He was sentenced to one-and-a-half to three years behind bars.

Now this is the part where I come in, the civil side. State Farm, which insured the house, coughed up 180K in insurance proceeds resulting from Sajewski’s demolition derby. (The two 90+ year old sisters who lived there were both unharmed.)

State Farm wanted its 180K back, and sued the driver, Sajewski, Jr. as well as his father, Daniel Sajewski, Sr., as Papa actually owned the car.

Papa Sajewiski said, in effect, let me out of this suit because my ne’er-do-well kid took the car without permission.  Not my fault!

Junior Sajewski supported his papa, and agreed that he took the car without permission. (I know! You’re shocked that Junior would help out his papa after wrecking the house of a couple of 90+ year old sisters and wrecking dad’s fancy car!)

But. Not so fast. In New York, it’s not just drivers of cars that are liable for the damage, but the you see, the owners also. (VTL 388(1)). This makes sense because owners are in the best position to evaluate the competence of the people they lend their cars to.

In the trial court, the judge said in legally sounding language, no way, no how, you ain’t getting out of this suit. Owners are responsible too.

But Papa pointed out that, while there is a strong presumption of permissive use of the vehicle, that presumption is rebuttable. And look here at the two affidavits of Papa and Junior, both saying that there was no permissive use.

Papa appealed. And yesterday, he got shot down again, this time by the Appellate Division, Second Department.

The court was pretty clear about this. For even though the testimony of no permissive use was un-rebutted by any other source, that is not always enough. While the court didn’t write the back story with four-part harmony (and feeling), it had the briefs. And they noted that the improbability of a story, or the interests of the witnesses, could effect how a jury perceives the evidence. The court wrote that:

 [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury’

So the question will, one day, go to a jury, where it belongs. Because questions of fact aren’t for the court.

And given the long history of legal trouble that Junior’s been in, I’m willing to bet that a jury will wonder why Papa didn’t hide the keys if he really didn’t want Junior to drive. And I’m not the only one to wonder why, as the court noted:

Daniel [Junior] had access to the appellant’s [Papa] residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant.

Just remember this story the next time you loan a car to someone that might be somewhat less than reliable. Because you can be on the hook.

 

May 25th, 2017

Some Advice for Trump’s New Lawyer

Marc Kasowitz

As the rapidly burgeoning #TrumpRussia scandal moves forward, with evidence piling up that Trump is trying to obstruct congressional investigations into collusion between his campaign and Russia, Donal Trump has picked some personal counsel.

Trump, of course, has picked many attorneys before, he being involved in over 3,500 lawsuits. And today’s “winner” of the competition for the job is Marc Kasowitz, of Kasowitz Benson Torres.

This is the same firm that employs former Senator Joseph Lieberman, who was rumored to be in line to be FBI chief. Whether it was an obvious conflict of interest to keep considering Lieberman, or Lieberman thought the 10-year gig might not actually provide the job security it once did, nobody has (yet) leaked.

But rather than go down that rabbit hole, I wanted to focus on this tidbit from one of Trump’s former  lawyers, Patrick “Paddy” McGahn. Mcgann had represented Trump many,  many times, and testified when Trump’s Taj Mahal casino went belly-up.

If the McGahn name sounds familiar, it’s because his nephew Donald McGahn is now White House Counsel. That’s another Trumpian rabbit hole I’ll try to avoid.

No, the place I’m going is this little piece of deposition testimony from Paddy McGahn over the Taj bankruptcy proceedings: It seems that the lawyers decided they could never meet with Trump one-on-one. The rule was that there always had to be a second lawyer in the room.

Why a second lawyer? To run up the bills? Hell no, to protect themselves.

Trump, Paddy McGahn testified, always had a practice of having two lawyers present when meeting with Trump to avoid problems with his lying. He and another attorney would meet together with Trump because “Donald says certain things and then has a lack of memory.”

So the lesson for Kasowitz is this: Make damn sure there are no one-on-one meetings with Trump. Record anything that can be recorded and have someone take explicit notes while it happens.

This is the only way to protect yourself when making representations about Trump, as he has a penchant for tweeting or saying something completely opposite later on. It’s a a habit.

#ProtectYourReputation