BILL NUMBER: S3752

SPONSOR: BRESLIN
 
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 applica-
tion 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 seri-
ous injury under any of the above enumerated categories in this defi-
nition 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 ques-
tion 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 constitu-
tional 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 technol-
ogy 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 modem medicine. As a
result numerous cases where a serious injury was clearly present have
been dismissed beCause the existing law does not clearly and specif-
ically 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 contra-
dictory 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. Raza -AD3d-2008 NY
Slip Op. 06289 (2"" 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 vehi-
cle accident sustained a torn ligament to the ankle that required
surgery (Danvers v. New York City Transit AuthorityAD3d-2008 NY Slip Op.
09637 (rd Dept. 2009));

*CARTHA V. QUIN - a person sustained injuries to their elbow requiring
invasive surgery (Cartha v. Quin-AD3d-2008 Slip Op. 03714 (1" Dept.
2008));

*VALENTIN V. POMILLA - a person suffered herniated discs to their spinal
column with consequential nerve damage, which were confirmed by objec-

tive 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 denomi-
nated 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 seri-
ous injury. While the existing statute does not require proof of contem-
poraneous 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 prac-
tices 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 determi-
nations 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:

2017-2018: S2082 Died in Senate Insurance, Died in Assembly Insurance

2015-2016: S1609 Died in Senate insurance, Died in Assembly Insurance

2013-14: 5880 Died in Senate Insurance, Died in Assembly Insurance

2011-12: S3790 Died in Senate Insurance, Died in Assembly Insurance

2010: A10739 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.