Albany Lobby Day – May 17 2016

Together with other plaintiffs’ lawyers who are members of the New York State Trial Association, I went up to Albany to speak with lawmakers and advocate for the following changes in the law:

Car insurance

A family struggling to make ends meet can ill afford to bear the costs of an accident, which can include medical bills, lost income or property damage. Medicaid and other State benefits should not have to cover costs that should be addressed by automobile insurance. NYSTLA supports bills that address the need for adequate insurance and protect consumers, including, but not limited to the following bills:

• Increased protection to injured drivers passengers and pedestrians by increasing insurance liability limits to require minimum insurance coverage for limousines to be a single minimum requirement of $1.5 million for bodily injury or death for one or more persons and property damage. Currently New York is far behind the times (requiring coverage of only $120,000 for two or more injured passengers if the vehicle seats 13-20 passengers.)
• Increase insurance liability limits on rental cars to $1 million.
• Increase the minimum required coverage for automobiles to $250,000 for a bodily injury and $500,000 for a death, and to $500,000 for bodily injury and $1 million for death of two or more persons in a single accident, plus $25,000 for property damage, as proposed in (Increased from the current $25,000/$50,000.00 coverage currently in effect.)
• Institute a requirement that insurers include with the policy supplemental spousal liability coverage equal to the bodily injury insurance coverage, but notify consumers that they may decline such coverage in writing. Provides a more useful, modern definition of what constitutes “Serious Injury” under the NY No Fault Threshold law, and clarify that serious injury is a question of fact, thus allowing a seriously injured person to seek justice in court.
• Sunshine Act: A bill that would require greater transparency from Insurance Companies and provide the public and policy makers need readily available, detailed and transparent information on auto insurance claims and costs to make informed policy decisions and purchasing choices, and to monitor the industry for fair treatment.

Pass fair claims settlement legislation

A proposed fair claims law would give policy holders some extra peace of mind. When a fire or extreme weather damages a home, it’s common for the insurance company to dispute the amount of the claim – especially in New York.

New York’s consumer-unfriendly insurance laws give insurers an incentive to drag out the settlement process. That’s because claimants have to pay out of their own pockets when they need expert help to resolve a dispute. If they hire an architect or engineer to support their claim or a lawyer to fight the insurance company, those costs are effectively subtracted from the final settlement. The result: Even when they win, they are not made whole.

In 42 other states, the added costs of reaching a fair settlement can be tacked onto the insurance payout. In those states, insurance companies are motivated to quickly and fairly settle disputed claims, according to advocates for reform of New York’s insurance laws. Here, it’s often so difficult and costly to challenge a low-ball settlement offer that many consumers just take what money they can get and walk away.

Advocates of reform legislation introduced in the state Senate and Assembly say that’s why insurance companies that do business in New York are so profitable. They return only 43 cents on each dollar of collected premiums, compared to the national average of about 65 cents paid out to policyholders.

This bill would create a civil remedy for New Yorkers who are harmed by an insurer’s delay or denial of a claim when the delay or denial was “not substantially justified”. For example, the bill would hold an insurer accountable if they:

• Fail to settle a claim promptly and fairly where the insurer’s responsibility is clear;
• Fail to provide a written denial of claim that explains the reason for that denial
• Fail to determine the value of, and responsibility for, a claim within 6 months
• Compel a policyholder to bring a lawsuit to recover on a legitimate claim by offering a low- ball settlement

In addition, this proposed bill would forbid the insurer who has to pay compensatory damages to a policyholder from passing on those costs to consumers in higher premiums.

Date of discovery

This bill would provide that a medical malpractice action accrues when one knows or should have known of the alleged negligent act or omission and knows or should have known that said negligent act has caused an injury and not the current law which provides that an action for medical malpractice must be commenced within two years and six months of the alleged negligent act, even if the patient is unaware that the negligent act has occurred.

• This proposed bill provides that the 2 1/2 year statute of limitations begins to run when the patient knows or should have known an alleged negligent act has caused injury. However, the bill prevents any malpractice claim from being filed more than 10 years after the negligent act. This is a fair, common sense rule.
• The current statute provides exceptions for continuous treatment and foreign objects wherein the statute of limitations starts to run after the last treatment or discovery of the object, although both exceptions are limited in scope and have been narrowly construed by the courts.
• The current statute prevents seriously injured individuals from receiving just compensation simply because they did not discover the negligence or the injury until after the statute of limitations has expired. This injustice manifests itself in cancer cases where x-rays are misread and patients are advised they are fine.
• The current statute of limitations is an archaic rule, 44 other states apply some form of discovery rule. New York, together with Arkansas, Idaho, Maine, Minnesota and South Dakota are the only states with no discovery rule.

Grieving families

New York’s Wrongful Death Law was enacted in 1847 and has not been updated to reflect the greater value we now place on human life. NY currently allows grieving families to recover only for the lost income from a family member who died. This values the lives of high wage earners over those who earn little or nothing, such as children, homemakers and senior citizens. The Grieving Families Act would allow families to be compensated for the profound emotional loss and grief caused by a wrongdoer caused by a loved one’s death.

Many other states allow grieving families to be compensated for their profound emotional loss, and several other states are considering legislation to allow families to be compensated for grief and emotional pain. We want to bring NY to the 21st century.