The Rogak Report: 04 Feb 2008 ** No Fault - Covered Accident **
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DRIVING INTO A POTHOLE IS AN "ACCIDENT" THAT QUALIFIES FOR NO-FAULT BENEFITS FOR RESULTING INJURY, SAYS ARBITRATOR
[Un-named Applicant] v. Regional Transit Service Inc., AAA Case No. 412007029036, AAA Assessment No. 17 991 17812 07 (Thomas J. McCorry, Esq., Arbitrator)
Edited by Lawrence N. Rogak
In a "novel and unique" decision, a No-Fault arbitrator has held that when a vehicle strikes a pothole, any injury resulting to a driver or passenger qualifies for no-fault benefits.
The Applicant, a bus driver for Regional Transit Services, a self insured bus company, was involved in an accident on 4/25/06, when the bus that she was driving struck a pothole, causing an injury to her left shoulder.
On 10/11/2006 following a hearing before the Workers Compensation Board the claimant received an award indicating that she had a work related injury to her left shoulder.
The claimant then sought the income that she would be entitled to under No-fault, after the credit for the Workers Compensation payment.
"Respondent argues... as the basis of its denial, that the Applicant `should not be able to proceed against R-GRTA in this claim because Applicant was not involved in an `accident' as required by the No-fault law."
"A loss," according to the Respondent, "must occur as result of an accident in which ownership, use , operation or maintenance of a motor vehicle is involved."
"It was argued further that, hitting a pothole while driving, while unfortunate, involves no extraordinary factors distinguishing accidents from other merely unexpected events."
The Arbitrator held, "I respectfully disagree. In addition to testifying to hitting the pothole, Applicant indicated that there had been numerous complaints, by other drivers, as to what was described as problems with the steering and suspension system, on this series of buses."
"While that issue of a maintenance problem, by itself could create coverage under Nofault, I find it difficult to distinguish this accident, from the striking of any road hazard, such as a car, a train, a tree or a deer."
"Counsel sites the definition of the term `accident' as used in automobile policies, to refer to an event involving some trauma ,violence, or casualty, or application of external force in which the auto is involved. See, Michaels v City of Buffalo 85 NY2d 754 ,651 N.E 2d 1272 . I find however, that the striking of a pot hole is an event, which involved trauma to the vehicle and to the operator and as such, should be considered an accident under the No-fault regulations."
"Both sides agree that the questions raised in this Arbitration were novel and unique."
Comment: I think that a decision like this opens potential floodgates for fraud. All someone would have to do is to identify any pothole on any public street, then claim they drove their car into it and start treating. No damage to the car would have to be demonstrated, because in most cases no damage results from hitting potholes (and at most, a blown tire or dented rim results). Nor are police accident reports usually generated when a car hits a pothole.
Be on the lookout for enterprising claimants to begin submitting this type of claim en masse.