The buck stops here

Ultimately, the crash victim’s fortunes rest on the conduct of the insurer. Some companies deal fairly with claimants, says White, the attorney, while others make a “business model of delay and deny.” Those firms make it so difficult that the claimant walks away — and they make a lot of money that way, he adds.

The crash victim, however, has no way to know these practices in advance. This uncertainty provides another incentive to hire an attorney, to ensure that they receive medical care.

Deborah, for instance, says she had to engage a lawyer to navigate the insurance system during the year following her head injury. The driver’s insurer periodically rejected her medical bills, which her attorney then challenged before benefits were reinstated.

Sarah Phillips feels lucky that she did not lose her life in her crash. But the Toronto native received no advice on how to handle the bills, insurance claims or follow-up treatment for her double fracture. When insurance agents began visiting her at home, she was grateful for the attention at first. A “nurse” told her to take laxatives for the constipation caused by her painkillers.

But the visits came to feel like surveillance. Within three months, the insurer had begun the cycle of denying her treatment claims. Phillips had hired an attorney by then. Her claim for medical treatment became a liability lawsuit that took two years to settle.

When an insurer denies a claim, the injured person can file an appeal with the insurer, lodge a complaint with the state, or, as a last resort, submit a claim to the MVAIC. The state insurance department wrote in an email that it follows up complaints, and that it performs “market conduct examinations” to ensure insurers’ compliance with the law. The department declined to provide more detailed information on how these examinations ensure compliance. Also unknown are the number of claims that never get made by victims who don’t know they’re available.

No-fault in New York and Massachusetts

“In theory, New York’s No-Fault is a wonderful system. But in practicality, it operates poorly,” says Scott Charnas, the personal injury lawyer, who is licensed in both New York and Massachusetts. He credits New York’s No-Fault system with reducing the number of lawsuits, as intended. He recalled hearing about protracted cases over minor matters, such as neck strain, when he began practicing 30 years ago. “Those cases have been wiped out,” he says.

But in the process, New York’s system has become more inaccessible to people with legitimate claims that don’t fit into its strictures. For instance, if a claim isn’t filed within 30 days, it will be rejected, Charnas says, while in Massachusetts, that 30-day deadline is generally relaxed to within two to three months of the crash. Depending on the extent of injuries and the victim’s personal circumstances, 30 days can pass quickly.

And minor injuries can still be litigated in New York, Charnas adds, as long as they are deemed to be “serious” (a “verbal threshold” that includes fractures, disfigurement, loss of limb and so on). This might be as little as a “fractured pinky finger.” Yet a person whose life-altering injury is not on the list — say a herniated disk that causes extensive pain or reduces mobility — will be denied the right to sue for pain and suffering.

In Massachusetts, by contrast, victims may sue for damages if they have a “serious” injury or if they incur $2,000 or more in medical bills (a monetary threshold). This permits recovery for a wider variety of injuries. The trade-off is that the maximum No-Fault payoff is $8,000 in Massachusetts, compared with $25,000 for New York, where costs and crash severity are arguably higher as well.

Perhaps most instructive for New York is Massachusetts’ standard auto policy, which Charnas cites as exemplary for its step-by-step explanation of what claimants need to do. He believes that New York should require insurance carriers to include a similar list, for both No-Fault and liability claims.

Like New York, Massachusetts’s government website includes no instructions on how to file an auto claim. However, a Google search for “how do I file an insurance claim in Massachusetts” quickly turned up instructions from the state Bar Association, through the Massachusetts Trial Court Law Libraries.

Finally, many Massachusetts residents have their own auto insurance and thus insurance agents to turn to for information. Per capita auto ownership ranges from a low of 60 percent in Cambridge to over 100 percent in many other towns. This is comparable to New York State outside of the five boroughs, where per capita ownership among adults is about 88 percent.

A better world is possible

The “major benefit” of New York’s No-Fault insurance is that “a number of people without insurance in traffic crashes have been able to get the care that they need,” says Steve Vaccaro, a Manhattan tort lawyer with the firm Rankin & Taylor.

“But most people aren’t aware of what to do if injured,” Vaccaro adds. “It’s not written down anywhere.” Indeed.

The State of New York could start to fix the situation by creating a clearly marked portal on its insurance website for injured cyclists and pedestrians, and easy-to-follow instructions for filing a claim. The state’s Department of Financial Services, and insurance companies, should be required to publicize the programs and how to access them.

New York City, in turn, could make this information abundantly available on its websites. The NYPD, hospitals, and other agencies should refer people to it as well. Printing a Web link on the NYPD and DMV crash report forms — the basis for an insurance claim — would help crash victims immediately.

At a minimum, the city websites should link to existing state Department of Financial Services Web pages, such as they are. Its 311 agents should be given access to clear, brief instructions on how to handle a crash and obtain insurance benefits.
The most effective solution, of course, is for the city to marshal its resources to quickly lower traffic casualties to negligible levels. At present, the DOT’s extremely modest target aims to halve traffic fatalities by 2030.

But until someone takes responsibility for informing today’s crash victims, their financial and even medical outcomes will continue to rely significantly on luck and the kindness of strangers, adding to total costs, pain, and confusion of the city’s 78,000 car crashes per year.

This article was submitted in fulfillment of the requirements for the Degree of Master of Arts in Business Journalism at Baruch College, City University of New York, October 2011. It has been updated with the latest statistics available as of January 2012.

The resources used in writing this article can be viewed on a public interest Web site created by the reporter, www.NycCarAccident.net.

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