New York is a “no-fault” insurance state, meaning the insurance associated with the car you were driving, a passenger in, or were struck by as a pedestrian, reimburses economic damages, such as, medical expenses and lost wages. Generally, no-fault insurance, personal injury protection (PIP) coverage, will cover the first $50,000 in economic damages (medical expenses). If the insurance policy carries additional personal injury protection (APIP) and Optional Basic Economic Loss (OBEL), medical expenses and lost wages in excess of $50,000 can be covered through APIP and/or OBEL.

However, if you have suffered serious injuries in New York, in excess of the no-fault insurance policy which covers you,  you may a personal-injury lawsuit against the at-fault driver. However, before you can file a lawsuit, you must meet the legal threshold of a “serious injury”.

According to Insurance Law § 5104, serious injury is defined as personal injury which results in one of the following: 

• Death
• Dismemberment
• Fracture
• Loss of  a fetus
• Permanent loss of use of a body organ, member, function, or system
• A significant limitation of the use of a body function
• Medically determined injury or impairment of a 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

If you were injured in a motor vehicle accident, a portion of your lost wages will be covered through no-fault insurance.

Basic No-Fault auto insurance covers 80% of lost earnings from work, up to $2,000 per month.

If you have experienced lost earnings from a serious injury, no-fault requires that you file for New York State disability through your employer. New York State disability will cover lost wages for up to 26 weeks.

Generally, no-Fault benefits cover a maximum 80% of your lost earnings. New York State Disability, through your employer, will contribute the additional 20% of your lost earnings.

You may be entitled to damages in the form of lost earning capacity if you are either unable to return to work or if your injuries will reduce the amount of income you can now earn.

Damages in the form of lost earning capacity is the quantifiable difference between the earnings that you will actually make compared to the earnings that could have been made had you not been injured.

A variety of factors should be considered in assessing an individual’s lost earning capacity, such as age, general life expectancy prior to the injury, the severity of the injury, the current job market, length of recovery, expected return to work, health history prior to the accident, prior earning history, rate of advancement within the company, and company policies toward raises, promotions, and other benefits.

Pain and suffering refers to the physical discomfort and emotional distress that are compensable as noneconomic damages.

Noneconomic damages refers to the pain, discomfort, anguish, inconvenience, and emotional trauma that accompanies an injury. In New York, the term “pain and suffering” includes all items of nonpecuniary damages and includes the loss of enjoyment of life. Damages for the loss of enjoyment of life compensate for the frustration and anguish caused by the inability to participate in activities that once brought pleasure such as a loss of consortium.