BILL NUMBER:S880               REVISED 01/04/13

TITLE OF BILL:
An act
to amend the insurance law, in relation to the definition of serious
injury and determining the sufficiency of the evidence with respect
thereto

PURPOSE OF BILL:
To provide fairness, guidance, clarity and consistency in the
application of the law. determining "serious injury", to more
accurately and equitably administer the original intent of the
No-Fault law.

SUMMARY OF PROVISIONS: OF BILL:

Section 1:
Amends section 5102(d) of the Insurance Law to adjust the
definition of "serious injury" to read as follows "...a personal
injury which results in death; dismemberment; significant
disfigurement; a fracture; 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; loss of a fetus; permanent total or partial loss of use of a
body organ, member, function or system; any injury resulting in the
              

need for a surgical procedure; any permanent consequential limitation
of use of a body organ, member, function or system; any significant
limitation of use of a body organ, member, function or system; or any
medically determined injury or impairment of a permanent or
non-permanent nature which prevents the injured person from
performing substantially all of the material acts which constitute
such person's usual and customary daily activities for not less than
ninety days during the one hundred eighty days immediately following
the occurrence of the injury or impairment. A finding of serious
injury under any of the above enumerated categories
in this definition shall be a sufficient basis for an award for past
and/or future damages."

Section 2:
Amends the Insurance Law by creating a new section, § 5102-a,
as follows "Issues of fact and sufficiency of the evidence. Whether
an injury qualifies as a serious injury pursuant to subdivision (d)
of section five thousand one hundred two of this article shall be a
question of fact. Where evidence is offered as to (a) whether an
injury qualifies as a serious injury pursuant to subsection (d) of
section five thousand one hundred two of this article, or (b) the
causation of such an injury, the sufficiency and weight of evidence
offered, including but not limited to that pertaining to qualitative
and/or quantitative assessment of injury, shall be reserved for the
trier of fact."

Section 3: Effective date.

JUSTIFICATION:
When the Legislature originally passed N.Y.S. Ins. Law § 5102, it


never intended that New York's citizens would be deprived of their
constitutional right to a trial by jury where they actually sustained
a serious injury. The judicial transformation and interpretation of
this statute has produced overwhelming obstacles never intended by
the legislature and has clogged the courts with boilerplate
"threshold motions" which monopolize judicial resources.

Over the past twenty years developments in technology have enabled
medical practitioners to identify injuries to ligaments, tendons,
tissue, nerves and other non-bony structures through the use of CT
Scans, MRIs, EMGs and other methods. Prior to these advances in
technology significant injuries would not have been revealed or
adequately appreciated, but they are now readily identifiable, and
the seriousness of their effects are understood far better than ever
before.

Unfortunately, current law has not kept pace with modern medicine. As
a result numerous cases where a serious injury was clearly present
have been dismissed because the existing law does not clearly and
specifically list and identify such injuries as actionable,
regardless of how the injury affected the accident victims' lives.

The proposed amendments would curtail summary dismissal of legitimate
cases involving significant injuries not objectively verifiable when
the law was originally enacted in 1977. The Courts have been flooded
with countless motions and extensive appellate practice on the issue
of whether a serious injury was sustained, resulting in unfair and
contradictory decisions and the dismissal of meritorious claims.
Injured parties in one
Judicial Department may have their case dismissed as "non-serious"
while in another Judicial Department a case with similar facts is
permitted to proceed.

In all of the following New York Cases, the courts ruled that based on
the current definition and interpretation of "serious injury" that a
jury was precluded from determining whether a serious injury was
sustained and therefore the case was dismissed:

* MATRA V. RAZA - a
person suffered injuries requiring surgery to both
knees as a result of an automobile accident (Matra v. Raze -AD3d-2008
NY Slip Op. 06289 [2"d Dept. 2009]);

* TAYLOR V. AMERICAN RADIO DISPATCHER. INC. - an
accident victim
sustained a tear of the anterior talo-fibular ligament of her ankle
and a tear of the meniscus of her right knee confirmed by MRI
requiring surgery (Taylor v. American Radio Dispatcher-AD3d-2009 NY
Slip Op. 0427 [1" Dept. 2009]);

* BYRD V. LIMO - a
person suffered a tear to the musculature of their
shoulder requiring surgery (Byrd v. Limo-AD3d-2009 NY Slip Op. 09637
[2"d Dept. 2009]);

* DANVERS V. NEW YORK CITY TRANSIT AUTHORITY, - a
victim of a motor


vehicle accident sustained a torn ligament to the ankle that required
surgery (Danvers v. New York City Transit Authority AD3d-2008 NY Slip
Op. 09637 [2"d Dept. 2009]);

* CARTHA V. QUIN - a
person sustained injuries to their elbow requiring
invasive surgery (Cartha v. Quin-AD3d-2008 Slip Op. 03714 [151 Dept.
2008]);

* VALENTIN V. POMILLA - a
person suffered herniated discs to their
spinal column with consequential nerve damage, which were confirmed
by objective and positive EMGs, and sustained injury to their right
knee, which required surgery (Valentin v. Pomilla. 59 AD3d 184 [1'
Dept. 2009]).

These and countless other cases like them have all been dismissed by
our courts for the same reason: despite clearly evident and
debilitating injuries being present, these types of injuries have all
been denominated as "non-serious" by current judicial interpretations
of 5102(d) of the Insurance Law.

Moreover, the judiciary has seemingly usurped the authority of the
Legislature by unilaterally imposing "requirements" for proof of a
serious injury. While the existing statute does not require proof of
contemporaneous quantitative testing or require non-stop medical
treatment for all victims of vehicular negligence the judiciary has
created these as additional hurdles for an injured person to leap
over to prove that they are seriously injured.

Decisional law has repeatedly provoked courts to dictate medical
practices to physicians by imposing these requirements in to the
vagaries of treatment every time a "threshold" motion is interposed.
However, not all judges have approved of this judicial expansion into
usurping the roles of the Legislature, physicians, and juries. The
judiciary has repeatedly asked the Legislature for clarification of
the statute and firm guidance as to its application, to ensure
fairness and consistency in applying the "serious injury threshold"
and ease the enormous burden the current law inflicts on the bench
and upon citizens that have suffered serious injuries.

The amendments proposed by this bill would remedy these problems by
clarifying what qualifies as a "serious injury" and promote fairness
and consistency in its application, taking into account modern
medicine and technology which have enabled medical practitioners to
identify with more specificity and clarity those injuries having real
and serious consequences. These amendments would further call for
jury determinations on factual issues surrounding the nature and
extent of the claims, rather than continuing to hamstring an already
overburdened judiciary with myriad "threshold" motions. Most
importantly, these amendments would promote fair, swift, consistent,
rational, just and easily comprehensible results, in keeping with the
intent of the original law.

LEGISLATIVE HISTORY:


S.3790 of 2012: Died in Senate Insurance, Died in Assembly Insurance
S.3790 of 2011: Died in Senate Insurance, Died in Assembly Insurance
A.10739 of 2010: Died in Assembly Insurance

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to: (i)
all actions and proceedings commenced on or after the effective date
of this act; and (ii) all actions and proceedings commenced prior to
the effective date of this act and pending on the effective date of
this act, where as of such date a trial of the issues thereon has not
yet commenced and a dispositive motion has not yet been filed.