RE: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry Legislature Proposes Expansion of "Serious Injury" Threshold
- The Military healthcare system (Tricare) says to go outside of the system with serious injury it has to be “ loss of life, limb or sight”, now that is narrow serious injury. Julia
Well, Julia, the military has different priorities. New York's laws are written primarily for the benefit of lawyers. -- Larry Rogak
New York's Assembly and Senate have each introduced proposed legislation that would expand the definition of "serious injury" (as currently defined in Insurance Law section 5102), and for all practical purposes eliminate summary judgment "threshold" motions.
The Assembly bill expands the list of injuries legally considered "serious" by adding these four categories:
- 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
- a surgical procedure to any injured part of the body
A new Section 5102(a) basically says... well, forget "basically," it literally says "Whether an injury qualifies as a serious injury... shall be a question of fact."
A question of fact. That means no summary judgment motions can be granted, or at least, any judge who wants to avoid granting them gets carte blanche.
If passed, what would this mean? Well, for one thing, it would mean the same thing to New York's personal injury lawyers (both plaintiff and defense) what the end of Prohibition meant to the beer manufacturers. Happy days are here again! Yes, ever since "Prohibition" began with Pommels v. Perez , the 2005 decision where the Court of Appeals severely tightened the definition of "serious injury" (and a herniated disc without a resulting disability no longer qualified), the throats of New York personal injury lawyers have been very dry. The ambulance chasing business has all but dried up, leaving hordes of attorneys desperately scratching walls for mold and bits of ancient lead paint for nourishment.
The new law, if passed, would be like a rainstorm in the desert. Long-dormant seeds would burst into bloom. Mud-lawyers, hibernating for years beneath the soil, would awaken as the life-giving waters of litigation stimulated their little hearts, and they would begin their chorus of croaking, as they began their instinctive search for clients with whom to mate.
Yes, the proposed law would make the desert bloom. And given the fact that New York has the most corrupt, self-serving Legislature this side of North Korea, I think chances are very good that the law will pass, because the Legislature is full of lawyers who do personal injury work in their practices.
Stay tuned for further developments and rain dances.
A tip of the hat to Roy Mura's Coverage Counsel for bringing this to light.
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