Adding Insult to Injury: Automobile Accident Claims in New York City

By Carol A. Wood

New York State insurance laws provide medical coverage for victims of car crashes regardless of fault or state of residence. Yet these laws are not publicized and are little known. This article examines the lack of official guidance on handling a crash and its aftermath, and the unnecessary financial loss and risk of harm it causes.

Joseph Herzfeld

Joseph Herzfeld says the injury he received in a car crash, while minor, has never completely healed. Photo by Carol A. Wood.

Crash victims report that this uncertainty compounds the chaos and pain of a crash, and makes access to medical benefits and to full recovery a matter of chance rather than policy. The article suggests that public officials take simple, inexpensive steps to address the problem, such as publishing information on medical, legal and insurance procedures that crash victims need. Officials can similarly educate the public at large about what to do, and not do, at any of the 78,000 crashes in the city each year, to further reduce potential harm.

Riding her bike home from a Brooklyn cafe on a hot June afternoon, Sarah Phillips carefully signaled and waited before turning onto Prospect Place. Next thing she knew, she was in an ambulance, both right shinbones fractured. “Wherever you’re taking me, it has to be cheap,” the panicked, uninsured art student told paramedics.

Dan Finton, an uninsured bookseller, had his leg broken by a hit-and-run driver on Eighth Avenue in Manhattan one Saturday night. He says he had no idea how he was going to pay his medical bills. He engaged a lawyer, who told him about a state insurance program for hit-and-run victims — but hospital administrators said they knew nothing about the program.

A woman who asked to be named only as “Deborah,” a 30-something consultant, was crossing the street on the Upper East Side when a livery cab backed over her to get a parking space. A crowd of people gathered, urging her not to move. At the hospital, Deborah was diagnosed with a head injury; she was unable to remember her relatives’ names, let alone to navigate the insurance system. “Absolutely nobody explained these administrative things,” she says.

Severe traffic injuries by category

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ABOUT EVERY SEVEN MINUTES, a car crash occurs in New York City that’s serious enough to be reported to the authorities. Although fatalities have begun to fall lately, the number of car crashes and injuries continues to rise, according to the state’s latest full-year data. More than 11,000 pedestrians were injured in 78,000 NYC car crashes in 2010, up 6.1 percent from the previous year, along with 3,500 bicyclists — up 25 percent. And while the number of severe injuries has fallen, nondrivers account for a higher percentage of them — 36 percent in 2007, up from 30 percent of in 2002. (The city’s Department of Transportation did not respond to several requests for more recent figures.)

Under two state insurance laws, all of these pedestrians and cyclists are entitled to medical benefits, paid by the driver’s insurer or an industry fund. But frequently, the victims don’t know about the laws. That’s because no government authority publicizes their existence. And insurance companies aren’t required to explain the laws’ provisions until the crash victim files a claim.

Increasingly in New York, both city and state governments are taking bold steps to improve the safety of public streets. City efforts to tame traffic began more than a decade ago — including redesigns along the notorious Queens Boulevard — and intensified in 2008 under a new DOT commissioner, Janette Sadik-Khan, with widened sidewalks and expanded bikeways, among other projects.

The trend gained steam in August 2011, when the state enacted a “complete streets” law that requires roadway planners to “consider the needs of all users…including pedestrians, bicyclists, public transportation riders, motorists and citizens of all ages and abilities, including children, the elderly and the disabled.”

From a public safety standpoint, these measures have begun to reduce casualties and promise greater benefits in the future. Yet legions of current crash victims remain neglected, and neither the state nor the city ensure that they receive the benefits they’re entitled to.

The state and city could begin to correct this problem simply by making basic information available. Even small changes — such as identifying and linking the state insurance laws on the 311 and 511 information portals — would help.

The laws are these:

  • The “No-Fault Insurance Law” (NYIL 5101). Requires car owners to provide insurance coverage of at least $25,000 per person for bodily injury expenses, or $50,000 per crash, and $10,000 in property damage.
  • The “Motor Vehicle Accident Indemnification Act” (MVAIC [or EM-vayk]) (NYIL 5201). Provides medical benefits for victims of hit-and-run and uninsured drivers, and for other claimants denied or ignored by a driver’s No-Fault insurer. As “insurer of last resort,” this hard-to-pronounce and little-known program is funded by insurance carriers doing business in New York State.

Inadequate information

Map of most frequent crash locations

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The city’s emergency medical system is highly responsive. A phone call to 911 leads quickly to the dispatch of an ambulance to a car crash site. Hospital emergency rooms are required by federal law to stabilize any patients in trauma, regardless of their ability to pay.

But once the emergency is over — or if an injury doesn’t appear until later — the victim’s financial and medical outcomes are largely a matter of luck and his or her own resources. To find out what resources are available, you have to dig deep, long and hard.

As of early October 2011, a reporter found virtually no information on the websites of various government agencies and the five major New York auto insurers.

New York City’s front line of information, the 311 phone service, advises calling the 911 emergency line in case of a car crash. But its website and agents apparently don’t have any suggestions for after the crash. Asked what to do in a hypothetical accident, to ensure one’s legal rights and access to medical care, one 311 agent put a reporter on hold three times, then advised calling the NYC Bar Association’s lawyer referral service and the NYS Unified Courts. The agent, though quick-thinking, clearly had to improvise. The lawyer referral service would be useful to many victims. But knowing about No-Fault and MVAIC medical benefits is arguably more important — whether a lawyer is hired or not.

A spokesperson for 311 could not confirm that such information wasn’t available somewhere on the department’s vast website. But he added, “To the extent that we can make the site more accessible, we want to do that.”

Nor does any city website mention what to do in a car crash — not the NYPD, the Department of Transportation, or the Department of Health — apart from calling 911. By contrast, in tiny Waverly, Ill., with a population of 1,400, emergency instructions are posted prominently on its website (and quickly located under Home/Information/Car Accident Procedures).

New York City, however, is not responsible for overseeing car insurance. The state Department of Financial Services (DFS, until last October the Department of Insurance, or DOI) is. As of mid-September 2011, the department’s public website included only two hard-to-find mentions of the medical benefits available to pedestrians — buried in information for automobile owners. Additionally, their fractured phrasing makes them unlikely to surface on a Google search.

Searching the DFS site for “pedestrian” calls up a reference to a No-Fault FAQs page, which states that pedestrians should file a claim with the driver’s insurer, a household insurer, or MVAIC. This is accurate, but the claimant must figure out how to actually make the claim, and in a way that protects their interests. More useful would be step-by-step directions that could be easily found on the Auto Insurance home page.

NYC crash stats

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A DFS site search yields nothing for “bicyclist.” Bicyclists aren’t named in the law but are covered by it, the department confirmed in an email.

Asked how injured New Yorkers are supposed to learn of the medical benefits, the DFS responded that consumers should refer to its No-Fault FAQs page on the Web or call its consumer services bureau’s toll-free phone line on weekdays. The department noted that the driver’s insurer must provide this information — once the injured party presents it with a claim.

And there’s the Catch-22. Car crash victims must already know about the No-Fault and MVAIC programs in order to make a claim. But they must make a claim to be notified of the programs’ benefits.

Also, hit-and-run victims must report their crash to the police within 24 hours in order to qualify for MVAIC benefits. But if they’re struck on a Friday or Saturday night, and wait until Monday to phone the DFS for information, they’ll have already missed the reporting deadline.

Nor do insurers offer much help. Of the five largest auto insurers in New York, representing more than 50 percent of market share, none explains on its site how to make a No-Fault claim against an insured driver’s policy. Three require nonmembers to call an agent personally to make a claim; two allow claims to be submitted online, without explanation of the policies involved.

For the nonmember claimant, calling the insurer puts them at a legal disadvantage in discussing their case, especially if the caller has no other information about their rights under the No-Fault law.

Of the five insurers, only Geico describes No-Fault coverage on a glossary page. But it does so inaccurately, omitting mention of pedestrians and bicyclists. Progressive Group’s glossary mentions that pedestrians are covered under “personal injury protection” — a little-known name for No-Fault, which many people might not think to check; the entry omits bicyclists as well. Allstate discusses bicyclists among its informative tip sheets for drivers, but it says nothing of their right to make a claim in a crash.

The No-Fault law specifically entitles pedestrians and cyclists to “first-party” benefits. Yet claimants are in essence denied this parity by insurers’ strict control of information. Pointing to the inherent conflict, Scott Charnas, a plaintiff’s personal injury attorney, says, “It’s not in the insurer’s interest to inform the public as much as possible of their rights.”

The asymmetry puts New York City residents at a special disadvantage. An estimated 55 percent do not own automobiles, and often have little familiarity with the business.

Even if crash victims hire an attorney or possess unusual financial literacy they may not be able to penetrate the insurance system.

Laurie Cohen was in the crosswalk at Duane and Greenwich Streets when she felt a taxi hit her. She woke up as a good Samaritan was tying a tourniquet around her bleeding head and was taken by ambulance to the hospital with a head injury. But Cohen says her lawyer dropped her case when the self-insured cab company ignored his calls. Her health insurer rejected her medical claims as well. Because Cohen, a seasoned investigative reporter for The Wall Street Journal, had never heard about the state programs, she had no inkling that she should look into them.

Given the effective information blackout, how do ordinary people find out about these benefits? Two people interviewed for this article said they were told by ambulance workers or hospital staff. But most say they got no help.

Police are required to tell crash victims how to obtain an accident report, which in most cases is needed to file an insurance claim. (A state DMV form may also be used in some instances.) Several people interviewed said their responding officer did not tell them how to get a report, creating confusion and delays. But even if victim has the accident report in hand, without information on how to file a claim, the report is useless.

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