Today’s cars have many advanced safety features to help protect individuals during a car accident. But despite these technological breakthroughs, there were still over 2 million people injured last year on US roadways.¹
The State of New York has its fair share of car accidents. Last year over 140,000 people were treated in hospital emergency rooms for injuries stemming from New York car accidents.²
What You Need to Know if You’ve Been in a New York Car Accident…
Car accidents happen in the blink of an eye. In the aftermath, you will have to deal with accident reports, car repair shops, the police, insurance companies, and more. Knowing what to do and say is vital. Making the correct decisions will help build a powerful property damage and personal injury claim. It will also help avoid the pitfalls and frustration often associated with car accidents.
Below are 10 steps we’ve created to help guide you through the maze of decisions following a New York car accident. We’ve also provided answers to the most frequently asked questions.
Accident scenes are messy – broken glass, leaking fluids, disoriented drivers, and traffic passing ominously close.
Despite this chaos, New York law requires drivers involved in an accident to immediately stop at the scene or as close as possible. Once stopped, it’s imperative to check if anyone has been injured. Then call 911 and report the accident.
What information will the 911 operator need?
Avoid giving your opinion of who caused the accident and why. The 911 operator needs specific information to determine whether police, paramedics, and tow trucks need to be dispatched.
Give the 911 operator the following:
Location: Look for street signs, highway mile markers, and landmarks. Giving the 911 operator a specific location helps s/he dispatch emergency services without delay.
Description of the scene: Accident scenes are inherently messy. Be sure to clearly describe what the scene looks like. Be sure to include any potential traffic hazards or things of immediate concern.
Injuries: Most car accidents today are fender benders, resulting only in property damage. However, many accidents result in injuries to drivers, passengers, or pedestrians.
Injuries can be obvious like fractured bones, serious burns, abrasions, contusions, etc. Some injuries may not be so obvious, as symptoms may take hours or even days to appear. Tell the 911 dispatcher if anyone is clearly injured, or complaining of pain or discomfort.
Will police respond to the accident scene?
Law enforcement agencies have their own policies governing when police will be dispatched to an accident scene. In most cases when the accident is merely a fender-bender and no one is injured, the police will not be dispatched. However, emergency personnel will be dispatched to the scene when there are injuries or the accident is blocking traffic.
What are my legal duties after an accident?
If you’ve just been involved in an accident on a New York roadway, you must stop immediately as close to the scene as possible. Once stopped, you’re required to give to the other driver(s) the following:
- Your name and address
- Vehicle registration
- Drivers License information
- Insurance Card and information (including the effective date of the policy)
- License plate number
What if I’m injured?
If you’re in pain, dizzy, bleeding, bruised, experiencing numbness or nausea, or you’re having trouble breathing, you may be seriously injured. When the paramedics arrive do not refuse medical assistance. Let the paramedics evaluate you and determine whether your injuries are serious enough to require transporting you to the local emergency room.
Some injuries like swelling, strains, and sprains to tendons, ligaments, and muscles, can take several hours or even days before symptoms are manifested.
Note: Seeking medical attention promptly after a car accident can be crucial in the pursuit of your personal injury claim. The longer you wait after an accident to seek medical attention, the greater the probability the insurance company will deny your claim, taking the position that your injuries occurred from an entirely separate event.
What if I’ve been injured and can’t report the accident?
If you’ve been injured in a New York car accident and you are physically unable to immediately contact the police to report the accident, you can wait until you’re physically able to do so. Waiting until you’re physically able will not violate New York law.
Do I have a legal duty to render assistance to anyone injured?
New York State law does not require drivers involved in car accidents to render assistance to those who may have been injured. However, common sense dictates helping comfort the injured is the right thing to do.
Does the State of New York have a “Good Samaritan” law?
Yes. If a New York car accident results in injuries, a person who “voluntarily and without expectation of monetary compensation” renders first aid to a person who is unconscious or injured, they will not be liable for damages or injuries sustained by the injured person.
What if the car I struck was unattended and I can’t find the owner?
If you have hit another car and you’re unable to locate the owner, you must contact the nearest police station and report the accident. While not required by New York law, leaving a note with a brief description of how the accident occurred, along with your name and contact information is also a good idea.
What if I hit a dog, a cat, or other animal?
If you hit a dog, cat, horse, or cattle, you must stop immediately at the scene. You’re required to take “reasonable and appropriate action” so that the animal may have necessary medical attention. You must also promptly report the accident to the owner of the animal. If you can’t locate the owner, you must report the accident to the nearest police station.
Do I have to file an accident report?
There are certain situations where you’re required by New York law to file an accident report. If you’re involved in a car accident which resulted in injuries to any person or where the damage to property is in excess of $1,000, you must file a report. This report needs to be sent to the New York State Department of Motor Vehicles within 10 days.
Submit your report on Form MV-104 – Report of Motor Vehicle Accident.
Once completed, Mail Form MV-104 to:
Crash Records Center
6 Empire State Plaza
PO Box 2925
Albany, NY 12220-0925
Where can I obtain a copy of the accident report filed by another driver?
To obtain a copy of the Motor Vehicle Accident Report go to this page of the New York State DMV website.
If police respond to the accident do they have to create an accident report?
Yes. When police respond to an accident scene, the investigating officer is required to create an accident report. To obtain a copy of the report, contact the local police agency which investigated the accident or submit a request to the New York State Department of Motor Vehicles.
For a list of all police agencies in the State of New York, download the Directory of New York State Criminal Justice Agencies.
The minutes following an accident can be crucial in developing your property damage and personal injury claim. The accident scene is the best opportunity for you to access evidence you’ll need to build your case.
How can evidence I gather at the accident scene help?
Accident scenes are fluid. Before long cars will be driven or towed away, and the people involved will be gone. Don’t waste time. To support a claim for compensation, you will need evidence of the other driver’s fault and your damages.
- Car repairs
- Medical bills including diagnostic tests such as X-Rays, CT Scans and MRIs
- Out-of-pocket expenses for items like prescription medications, slings, crutches, wheelchairs, costs of travel to treatment, hospital parking fees, etc.
- Lost wages
- Pain and suffering
- The other vehicles’ Make, Model, Year, License plate number, Registration expiration date, and Vehicle identification number (VIN)
Note: The VIN can normally be found on the car’s dashboard in the left corner at the bottom (where the dashboard and windshield meet), on the driver’s insurance card, or inside the door jam of the driver’s side door
- Information about the others involved, including:
– Drivers’ and passengers’ full names
– Home and business addresses
– Telephone numbers and Email addresses
– Dates of birth
– Driver’s license numbers
Note: If the driver isn’t the owner of the vehicle, you’ll need the owner’s information as well.
- Witnesses’ names and contact information
- Witness statements
Note: While witnesses aren’t legally required to remain at the scene, convincing them to stay will give you time to speak with them to determine if what they saw will be helpful to your claim.
- A diagram of the accident scene, noting the location of the cars immediately before and after the collision. Be sure to note the following:
– What direction each car was traveling in
– Time of day the accident occurred
– Approximate speed of the cars immediately before the collision
– Current road and weather conditions (Note obstacles, potholes, and obstructions on the road. Was it snowing, raining, foggy? Were the roads icy? Was it a full moon?)
Are photographs and video important?
Yes. Photos and videos of the accident scene can be very important. Using your digital camera, cell phone or other electronic device, take multiple photos and videos of the accident scene. Be sure to include sound and get shots from multiple angles.
Photographs and videos identify the cars’ position immediately after the collision, weather conditions, potholes, road obstructions, traffic and street signs, and more. They can also reflect the demeanor of the drivers, passengers, and others involved at the time of the accident.
Sound is important for documenting admissions of fault, intoxication, statements about insurance, and other statements. By taking photographs and video, it makes it difficult for anyone involved in the accident to later change what they did or said.
Are witness statements important?
Witnesses are not under any legal obligation to speak with you or give you a written statement. However, if you can find witnesses who are willing to talk, they could be integral in building your claim. Their opinions of what caused the accident could be the one thing that identifies the other driver as being at fault.
There is no right or wrong way to take a witness statement. Just find some paper and ask the witness to write down what they saw and heard. Make sure the witness signs and dates each page of their statement, and make note of their name and address.
Promptly report the accident to your insurance company. The company will open an investigation and a claims adjuster will contact you.
Most car insurance policies have within them a “Cooperation and Notice of Occurrence” clause. This clause refers to the contractual obligations between the driver (insured) and the insurance company (insurer).
The clause requires the insured to notify the insurer of an accident, regardless of fault, and to cooperate throughout the investigation.
Example of a standard Cooperation and Notice of Occurrence clause:
“The Insured (you) agrees to notify the underwriter (your insurance company) of any accidents and thereafter to provide all the information, assistance and cooperation which the company reasonably requests. The insured also agrees that in the event of a property damage or personal injury claim, the insured will fully cooperate with his/her insurance company and do nothing that shall prejudice the insurance company’s position in the property damage or personal injury claim….”
I didn’t cause the accident. Why do I have to notify my own insurance company? Won’t my premiums rise?
By promptly notifying your own insurance company after an accident, you give them sufficient time to investigate. Your insurance company needs to hear your side of the story as soon as possible after the incident takes place. This is especially important if the other driver decides the accident was your fault.
The investigation may show the other driver is fully or partially at fault for the accident. The driver may have been texting, speeding, following too closely, or engaged in some other form of negligent behavior.
Do I have to I report the accident to my insurance company if no one was injured?
Yes. If the accident was only a “fender bender” with no injuries, you may be tempted not to report the accident to your insurance company. You may think your premiums will rise or your policy may be cancelled. While an accident may appear not to have caused injuries, not reporting it is a serious mistake. Here’s why….
Delayed Symptoms: Because the onset of symptoms for some injuries can take hours or even days to appear, the injuries you thought didn’t exist may suddenly become very real. While the other driver and passengers may have initially believed they were fine, delayed symptoms may indicate otherwise.
No Insurance: The other driver may not have property damage or personal liability coverage. If so, it’s last thing the driver wants you to know. If the police become involved, the other driver may fear they will be ticketed, or worse, arrested.
Fraud: At the scene, the driver and passengers may say they weren’t injured. However, some people later decide to “cash-in” on the accident by filing multiple false claims of whiplash and soft tissue injuries.
Example of how not reporting the accident to insurance may cause problems:
Russell was in a “fender bender” with Margaret. She was about to make a right turn at a red light. As she inched her way out to make the turn, she stopped to let traffic pass. Thinking she was going to continue turning, Russell drove right into the rear of her car.
Both drivers pulled over into a nearby parking lot and got out to examine the damage. Russell asked her if she was alright and she said yes. He said he wasn’t injured either. They exchanged contact and insurance information. Because the accident appeared minor, with no damage to either car and no apparent injuries, Margaret and Russell went on their way, thinking they’d never hear from each other again.
After arriving home, Margaret decided her back was sore so she drove to the local hospital emergency room. The next day she hired a personal injury attorney who advised her to see a chiropractor for therapy.
Two months later Russell received a letter from Margaret’s lawyer saying his client was seriously injured in the accident, and that he now owed her $30,000 for her medical and therapy bills, lost wages, and pain and suffering.
By failing to immediately report the accident to his insurance company, Russell not only violated the terms of the cooperation clause, but also gave Margaret’s attorney a head start on the claim. Russell was understandably dismayed. He wondered if his insurance company would provide coverage, or if he would be on his own.
If Russell had promptly contacted his insurance company after the accident, he might not be in this position. His insurance company would have already opened an investigation into the accident, providing coverage while thwarting an attempt by Margaret’s attorney to pursue an unwarranted personal injury claim.
What happens when I report the accident to the insurance company?
When you report the accident to the insurance company, a file will be created and a claim number assigned. Be sure to write down the claim number. You’ll need it when communicating with the insurance company. A claims adjuster will also be assigned to the claim. The adjuster will initiate an investigation into the accident.
While cooperating with the insurance company is important, you’re not required to give a recorded statement to the claims adjuster. Once you do, you’ll be bound by what you say, even if you later change your mind about one or more facts surrounding the accident.
Are there mobile applications to report accidents to insurance companies?
Yes. There are many free mobile apps to help you report your accident to the insurance company. Check with your carrier to see if they have a mobile app available for you to download. These apps can help you:
- Take and store pictures and videos
- Store and transmit personal information, including driver’s license, vehicle details, insurance information, etc.
- Create and send state-required crash reports to authorities
- Help you draw a diagram of the accident scene
- Access the GPS location of the accident
- Store witness statements and contact information
Here are some of the mobile apps presently available:
New York State relies on a no-fault car insurance system, also referred to as Personal Injury Protection (PIP) coverage. No-fault insurance is designed to cover medical bills, out-of-pocket expenses, and lost wages if you’re in an accident. With certain exceptions, PIP does not pay compensation for pain and suffering.
PIP coverage is designed in such a way that it doesn’t matter who is at fault. Because of this, you don’t have to sue the other party’s insurance company. Simply contact your own insurance carrier and file a claim. These no-fault laws apply only to injury claims and not to property damage.
Are there circumstances under which I can pursue the at-fault driver for my medical bills, out-of-pocket expenses, lost wages, and pain and suffering?
Yes. You may pursue your injury claim against the at-fault driver and the driver’s insurance company if you sustained a “serious injury”. The simplest way to tell if your injury is serious is if your medical expenses exceed $50,000. Serious injury can include:
- Significant disfigurement
- Bone fracture
- Loss of fetus
- Permanent loss of use of a body organ
- Significant limitation of use of a body function or system
- A medically determined injury or impairment that is not permanent, but keeps the individual from performing their normal daily routine for at least 90 days (within the 180 days following the accident)
What are my options if another driver crashes into me and my damages exceed New York’s no-fault requirements?
If you’ve sustained personal injuries as a result of another driver’s negligence, and your damages are greater than New York’s no-fault requirements, you have the following options:
- File a personal injury claim with your own insurance company (known as a first-party claim)
- File a personal injury claim with the at-fault driver’s insurance company (known as a third-party claim)
- File a lawsuit against the at-fault driver
What should I do if the driver demands I pay him at the scene of the accident?
Do not pay, or agree to pay the driver any amount of money. Tell the driver you will not discuss any payment with him at the scene. By agreeing to pay the driver, you’re effectively admitting fault. Instead, contact your insurance company and report the accident.
- $25,000 for bodily injury and $50,000 for death of one person in one accident
- $50,000 for bodily injury and $100,000 for death of two or more people in one accident
- $10,000 for property damage in one accident
Pure comparative negligence applies when an accident results in exceptions to the no-fault requirements. By definition, this law compares the negligence of each driver in a car accident, and then distributes compensation according to each driver’s percentage of negligence.
Under pure comparative negligence, the victim in a New York car accident can still seek compensation from the negligent driver even if the victim shared some responsibility for the accident. This is true whether the victim was 1% at fault or 99% at fault for the accident. The amount of compensation the victim receives will be diminished by the percentage of their own contributing negligence to the accident.
Dinah was driving to work, traveling westbound in the right lane on the Long Island Expressway heading into New York City. Rupert was also in the right lane, driving directly behind her.
Dinah was driving below the posted speed limit and Rupert wanted to pass her. He slowly moved into the left lane and increased his speed. Once he felt he was sufficiently past Dinah’s car, he began to enter the right lane in front of her.
As Rupert moved back into the right lane, his car collided with the driver’s side front quarter panel of Dinah’s car. They pulled off the road to assess the damage and see if anyone was injured. Rupert was not hurt, but Dinah’s left wrist was fractured as her hand struck the steering wheel. Rupert called 911 to report the crash and Dinah’s injury. Police and paramedics soon arrived.
Two other drivers who witnessed the accident pulled over to see if anyone was injured and needed assistance. When paramedics arrived, they treated Dinah and transported her to the local hospital. Both witnesses spoke with the officer and gave their accounts of the crash.
Rupert told the police he thought he’d safely passed Dinah before moving back into the right lane. The witnesses told the police they saw Dinah speed up as Rupert was moving back into the right lane.
The police issued a traffic citation to Rupert after the officer determined he moved back into the right lane before it was safe to do so. The citation was issued under Section 1122 of New York’s Motor Vehicle and Traffic laws: Overtaking a Vehicle on the Left, which reads in part:
“The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.”
However, based on the witnesses statements, the investigating officer determined Dinah increased her speed as Rupert was attempting to re-enter the right lane, thus contributing to the crash.
As a result, the investigating officer issued a traffic citation to Dinah under New York’s Motor Vehicle and Traffic laws Section 1122 (b) which reads in part:
“…the driver of an overtaken vehicle shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”
Under New York’s no-fault exception for serious injuries, Dinah filed a personal injury claim with Rupert’s insurance company, demanding $50,000 for her medical bills and related damages. Dinah and the insurance company were unable to agree on a settlement amount and the case went to trial.
After listening to both drivers, witnesses, and the investigating officer, the jury determined that both drivers were at fault. Relying on New York’s Comparative Negligence law, the jury apportioned Rupert’s negligence at 75% and Dinah’s at 25%.
That percentage translates into a jury verdict in Dinah’s favor. However, the amount of $50,000 demanded by Dinah was reduced by her 25% negligence. This resulted in a final award amount of $37,500.
*Note: Under New York’s Pure Comparative Fault law, even if the jury had determined Dinah was 99% at fault, she still would have been able to recover $500, representing her 99% of fault, and Rupert’s 1%.
Law enforcement officers are trained in crash scene investigation. Officers dispatched to an accident scene have several important functions to perform. It’s important for you to get out of their way and let them do their job.
- Seek out the injured and call for paramedics when necessary
- Secure the accident scene with flares, pylons, tape, etc.
- Search for physical evidence, including skid marks, obstructions, etc.
- Question drivers, passengers, and witnesses to get information about the collision
- Conduct field sobriety tests when appropriate
- Run warrant checks
- Issue traffic citations when appropriate
- Give drivers a “Case ” or “Service Number” so they can later obtain the police officer’s crash report
Do police officers have to listen to my side of the story?
While you have every right to speak with the investigating officers, you’re also required to follow their direction at all times. Wait until the officer is ready to speak with you. The officers are very busy while investigating the accident and you do not want to get in their way. Doing that will only impede the accident investigation and may result in a citation, or in extreme cases, your arrest.
Do I have to answer questions from the police?
It depends. If the officers ask you to identify yourself, including your full name and address, proof of registration, and proof of insurance, you must comply. However, if you’re being questioned about possession of drugs, or for any other action which might result in criminal charges, you have the right not to answer those questions.
What if the police gave me a ticket?
If a police officer decides you were in violation of one or more of New York’s traffic laws, you may be issued a traffic citation. You can certainly attempt to dissuade the officer, but if he does issue the citation you must accept it, and if requested, sign it.
It’s important to know that signing the citation is not an admission of guilt. Rather, your signature is only an agreement that you will appear in court at a later date to face the charge. At that time you may enter a plea of not guilty and contest the citation. Traffic citations are only circumstantial evidence of guilt.
Some personal injury claims can be handled without legal representation. Other claims always require an experienced attorney.
Soft tissue injuries include strains and sprains to tendons or muscles, minor bruising, cuts, first degree burns, whiplash, and other relatively minor injuries. Soft tissue injuries generally don’t result in substantial medical or therapy bills. They also don’t involve complex issues of law. Because of this, a victim can usually negotiate their own injury claim with the insurance company.
Soft tissue injury claims usually do not involve enough compensation to pay an attorney and still leave you with enough leftover to pay for all your medical bills and pain and suffering.
Hard Injuries are much more serious and can include head trauma, fractures, third degree burns, deep gashes requiring stitches, and other injuries requiring extensive medical care. Compensation for a serious injury claim can be substantial. In these cases, you simply won’t be as effective as an experienced personal injury attorney.
By representing yourself, you will likely end up settling for an amount substantially less than an attorney could have secured for you, even after attorneys fees are deducted.
Insurance companies know that without an attorney you can only get so far. The insurance claims adjuster may lead you to believe you are an expert negotiator. The reality is, that’s just not true. And once the adjuster gives you their final offer, that’s it. From there you have absolutely no leverage. It’s basically take it or leave it.
When it comes to serious hard injury claims, experienced personal injury attorneys have a plethora of legal tools to rely on to secure the highest settlement possible for their clients. That amount is almost always higher than the client could have ever hoped to get on their own.
Hard injury claims often require filing a lawsuit. Insurance companies don’t like lawsuits. They know once a lawsuit is filed they will have to pay out substantial amounts in legal fees to defense attorneys. Lawsuits also require pretrial discovery, including depositions, interrogatories, subpoenas for production of documents, and more. These are actions only an attorney can effectively perform.
Personal injury attorneys have the power to learn the at-fault driver’s policy limits, whether the driver has a past record of traffic accidents, citations, prior arrests, and so much more helpful information you could never obtain representing yourself.
How much do attorneys charge?
Most personal injury attorneys do not charge any legal fees for initial office consultations. Once you find an attorney who will accept your case, he or she will agree to represent you on a “contingency fee” basis. This means you do not have to pay the attorney any legal fees until they settle your case or win it at trial. If your attorney is unable to get you a favorable outcome, you’ll owe the attorney nothing.
However, if your attorney settles your case or succeeds in trial, you will owe the attorney a percentage of the settlement amount or court verdict. That’s the definition of a contingency fee. Contingency fees can range from 25% to 40%, depending on the time involved, the complexity of the case, and whether or not the case had to be tried in court.
Make copies of your medical records and bills, the accident report, photographs, witness statements, and other documents related to the accident. Seek out several personal injury attorneys in your area. Most have extensive websites illustrating the types of cases they accept, and their past successes. These attorneys will review your evidence, discuss the underlying facts, and ask questions. After doing so they should be able to give you their opinions on the viability of your claim.
If you’ve had no success in settling your property damage or injury claim, you may consider filing a lawsuit in one of New York’s Small Claims Courts.
In small claims court, the rules of evidence are relaxed. You don’t have to worry about all the legal jargon, cross examining witnesses, or following other restrictive rules which normally apply to attorneys in higher courts. Judges in small claims courts want to hear from both sides, while reviewing the evidence each side may bring.
City Courts hear cases where the amount in controversy does not exceed $5,000.
Local Town and Village Courts hear cases where the amount in controversy is under $3,000.
- The at-fault driver was uninsured or under-insured
- Your car or other personal property was damaged and the cost to repair it is under $5,000 (or $3,000 depending on which court you file your lawsuit in)
- The insurance company refuses to offer a fair settlement amount
- The insurance company denies your claim
- You’re unable to find an attorney who will accept your case
Where can I get more information about filing a small claims lawsuit?
To learn more about the policies, procedures and forms for filing a small claims lawsuit read A Guide to Small Claims in the NYS City, Town and Village Courts.
For more information about filing a small claims lawsuit in one of the justice courts read the Justice Court Manual.
Whether you handle your own personal injury claim or hire an attorney to represent you, New York’s Statute of Limitations will apply.
In car accidents, the term “statute of limitations” refers to the time period in which you have to either settle your claim or file a lawsuit. If the statute of limitations expires, you forever lose your legal right to pursue compensation from the at-fault driver or his insurance company.
What is the statute of limitations in New York for personal injury and property damage claims?
The statutes of limitations for personal injury and property damage claims in New York is three (3) years. In almost all cases, the statute of limitations period begins on the date of the accident.
What should I do if the statute of limitations is about to expire and I haven’t settled my injury claim?
If you believe the statute of limitations is about to expire and you haven’t settled your claim yet, you must file a lawsuit. Filing a lawsuit within the allowed time makes your case exempt from the statute of limitations expiration date. This is true even when you file in small claims court.
The insurance company won’t return my calls or my emails. What should I do?
The insurance company has no legal obligation to settle your claim or remind you of the statute of limitations. You can be sure the claims adjuster will not call, email, or text you about an approaching limitations date.
It’s up to you to be vigilant and keep track of that date yourself. Be sure to enter the date into your cell phone, iPad, calendar, on your refrigerator, or any other place which will remind you of the imminent expiration of the statute of limitations.
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