Articles Posted in Staten Island

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As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Manhattan Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Staten Island employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made the Paint Company responsible for half of the expense of treating the woman’s lower back or lumbar spine injury. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first car accident the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury is fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of the woman’s lumbar spine.

The woman also contends that the judge of compensation claims erred in denying her claims for treatment with a neuropsychologist and with a separate, pain management specialist. The order provides that the authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, and the suggested treatment is deemed to be reasonable and medically necessary. It further provides that the authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist and suggested neuropsychological treatment, is deemed to be reasonable and medically necessary.
A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

The judge of compensation claims found that the woman was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was carved out by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a compensable condition, the disability resulting solely from the subsequent accident is not compensable. As to temporary indemnity benefits, the question that should have been addressed on remand-and must now be addressed on a second remand-is whether the woman’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident.

An employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits.
Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether the woman’s disability attributable to the industrial accidents would have rendered her totally and permanently disabled even if the third accident had never occurred. An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability. The question is whether she was or would have become totally disabled in the absence of the non-work-related accident.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.
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On 12 August 2003, a Staten Island woman, who was insured by a certain insurance company, was involved in a motor vehicle accident. She was driving her van when she made a left turn directly into the path of a motorcycle operated by a certain man. The impact caused the operator of the motorcycle (the victim) to be ejected and landed about nineteen feet away. Thereafter, the Manhattan police and paramedics arrived and the victim was taken to the hospital, and it was determined that he sustained serious injuries. The victim stayed in the hospital for thirteen days, and was later transferred to a nursing home.

After the said incident had occurred, the aforesaid woman immediately reported the car accident to her insurance company. In response, the insurance company assigned someone to handle the claim (the agent), who spoke generally about the accident with the said woman (the insured woman); ascertained that neither the insured nor her daughter, who was in the van with the woman at the time of the accident, was injured; advised her that she had $10,000 coverage limits, that is, $10,000 in property damage coverage and $10,000 in bodily injury coverage; and concluded that the insured was probably at fault in causing the accident. After that, the agent assigned attempted to call the victim, who was still in the hospital, but was unable to reach him. The agent then ordered an appraisal of the victim’s motorcycle and assigned that portion of the damage claim to the insurance company’s claim service center in Virginia.

On 18 August 2003, the insurance agent received a call from an attorney (lawyer-one), who indicated that he was representing the victim. However, ten days later, lawyer-one notified the agent that he was no longer representing the victim and provided him with a notice of his attorney’s lien.

On 20 August 2003, the agent obtained the car accident report. The report stated that the woman turned directly in front of the victim who was ejected nineteen feet, and thereby suffered an incapacitating injury. On 26 August 2003, the appraisal of the motorcycle revealed that it was a total loss. Thus, the agent authorized payment of the full $10,000 property damage policy limits. On 29 August 2003, the agent sent the insured woman a certified letter advising her that, because the property damage would exceed her insurance coverage, she was personally exposed to an excess judgment for both property damage and bodily injuries; acknowledged that it was reported to them that the claimant sustained serious bodily injuries, and cautioned that the insurance company will make every effort to resolve the claims within the insurance coverage, but that, due to the serious nature of the accident, it may not be possible; and that under no circumstances will the Claims Service or the insurance company assume responsibility for any claims or judgments in excess of the insurance coverage.

On 9 September 2003, the victim’s new attorney, lawyer-two, sent a letter to the agent asking for the policy information within thirty days, but the insurance company did not provide that information until sixty days later. On 9 October 2003, the agent spoke with the lawyer-two’s paralegal and was informed that the victim sustained a significant spinal cord injury, with several broken bone injuries, among others, and that he might be paralyzed. After this conversation, the agent set the reserves for the bodily injury claim to the full $10,000 policy limit and sent a letter to lawyer-two’s law firm asking for the victim’s medical records and bills stating that they would like to settle the bodily injury claim as soon as possible; informed them of lawyer-one’s lien; and indicated that the said lawyer’s name needed to be on the settlement check. On 19 December 2003, the new lawyer sent medical authorization forms signed by the victim to the agent, but the agent did not order such records, and requested only the hospital records on 13 January 2004, or almost five months after the accident. On 30 January 2004, the agent received the said hospital records. On 4 February 2004, the agent sent a letter to lawyer-two acknowledging the serious injuries the victim suffered and offered to settle the claim contingent upon placing lawyer-one’s name on the settlement check or obtaining an agreement regarding the lien; and that he would be contacting lawyer-one to ascertain whether such lawyer intended to pursue his lien, however, the record does not reflect that the agent ever contacted the first lawyer.

On 5 February 2004, the agent sent a status report to the insured woman informing her that the victim had an extended hospital and nursing home stay due to his serious injuries, which included a spinal cord injury, several broken bone injuries, particularly, vertebrae fractures, rib fractures, along with a punctured lung, and a scalp laceration. The agent advised her that he offered to pay the bodily injury liability limit of $10,000 but cautioned that because of the serious injuries it might be impossible to settle within the policy limits.

On 11 February 2004, the agent sent another letter to lawyer-two identical to the February 4 letter. On 17 February 2004, lawyer-two responded and advised that if and when the policy limits are tendered, he will discuss it with the victim; and that he would be responsible for any alleged lien on the part of lawyer-one. On 2 March 2004, in response to lawyer-two’s February 17 letter, the agent expressed uncertainty as to the word “tender.” He thought he had already tendered the policy limits, even though no check had been enclosed, and he again wanted assurance that lawyer-two would be responsible for the payment of any potential attorney’s lien. On 8 March 2004, lawyer-two explained that there had not been a tender of policy limits and that, if the agent was unsure of that term, he needed to check it with his legal department; that, due to the catastrophic nature of the victim’s injuries, there should have been a tendering of policy limits; and, yet again, advised the agent that the victim would be responsible for any potential attorney’s lien. On 24 March 2004, the agent faxed a copy of lawyer-one’s 28 August 2003 attorney’s lien to lawyer-two, and on the cover sheet, he again expressed confusion over the term “tender of policy limits”. On 25 March 2004, he also sent a letter indicating that the insurance company’s offer to settle the victim’s claim is tender of the limits; and that if lawyer-two wanted the settlement check, he would need to put in writing that he would settle the attorney’s lien from the proceeds of the check. Lawyer-two responded by insisting that his demand for a tender of policy limits was clear and reiterated that, if the agent needed clarification, he needed to check with his legal department; questioned the potential insignificance of the attorney’s lien stating that the value of lawyer-one’s lien is unimaginable considering the period that lawyer-one’s services was engaged, noting that the accident occurred on 12 August 2003 and the letter advising them of the lien is only dated 28 August 2003.

On 1 April 2004, after an almost eight months from the date of the accident, the insurance company formally tendered the policy limits of $10,000. However, by reason of the insurance company’s delay, he already filed suit against the insured woman, as directed by the victim. Lawyer-two was so surprised at how long it took the insurance company to tender the limits especially due to the catastrophic nature of the injuries, noting that the victim would have settled the claim at any point through February.

The victim and his wife filed suit against the insured woman, while the insured woman filed a bad faith claim against the insurance company. Thereafter, a stipulated judgment in excess of the policy limits was entered by agreement among the victim, the victim’s wife, the insured woman, and the insurance company, but it expressly left open the issue of whether the insurance company had acted in bad faith in failing to settle the victim’s claim.

In the bad faith action, the insurance company filed a motion for summary judgment. The insurance company alleged that, as a matter of law, it did not act in bad faith; that it had orally offered to settle for its policy limits within a day of receiving the medical records; thus, final judgment should be entered in its favor. In opposition, the insured woman filed two affidavits, one by a claims-handling expert and the other from an attorney. In the affidavits, it was stated that, based on the low limits of the insured’s policy and the potentially catastrophic injuries to the victim, the insurance company should have tendered its policy limits not later than October 2003; that the method of claims handling followed by the insurance company was not appropriate under the circumstances; that the insurance company failed to conduct a thorough and prompt investigation using all sources available to all parties; that the insurance company demonstrated a lack of urgency and lack of concern to its insured; that the insurance company violated its fiduciary duty to its insured by failing to understand the duty to make a tender of policy limits as soon as the adjuster determined it was likely that the value of the claim would exceed the policy limits; that the insurance company breached its duty by refusing to protect the insured until it received medical records documenting the nature and extent of the injuries and requiring written confirmation of those injuries when it already knew of the severity of the injuries; and that the purported attorney’s lien should not have been a factor in the settlement considerations. The trial court granted summary judgment in favor of the insurance company. Hence, an appeal followed.

The ultimate issue in this case concerns whether the insurance company acted in bad faith in failing to settle a claim against its insured. On the standard of review in appeals of this case, the trial court’s ruling on a motion for summary judgment is a question of law and is subject to the de novo standard of review. Summary judgment should be granted only when there is a complete absence of genuine issues of material fact. Where material issues of fact which would support a jury finding of bad faith remain in dispute, summary judgment is improper.
Well settled is the rule that an insurance company has an obligation to properly defend its insured from claims that are covered within the policy of insurance and that it must exercise good faith in satisfying that obligation. When defending its insured against a claim, the insurer has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable, and settle the claim, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. The question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the totality of the circumstances standard where each case is determined on its own facts, and, ordinarily, the question of failure to act in good faith with due regard for the interests of the insured is for the jury.

Here, it must be noted that the insurance company knew, within days of the accident, that the insured was entirely at fault; that, because the accident involved a motorcycle, the insured would be responsible for all of the personal injury damages that exceeded her $10,000 policy, without regard to the issue of whether the victim suffered a permanent injury; and, that the victim suffered catastrophic injuries to which he was hospitalized for thirteen days and later transferred to a nursing home, and sustained a spinal cord injury, including several broken bone injuries, particularly, vertebrae fractures, rib fractures, a punctured lung, and a scalp laceration. Thus, the court finds that it cannot conclude, as a matter of law, that the insurance company satisfied its duty of good faith.

Moreover, an insurance company has the fiduciary duty to timely, and to properly, investigate claims against its insured. This duty is not relieved simply because the company is waiting for some information from the victim’s attorney. It is evident on the record that the insurance company knew that the victim’s injuries would exceed the policy limits of $10,000. Thus, the company’s failure to tender the policy limits created a genuine issue of material fact regarding whether it breached its duty of good faith.

Lastly, on the argument that summary judgment was appropriate because there was never a formal offer to settle the case, a lack of a formal offer to settle is a factor to be considered in determining whether the insurance company acted in bad faith.

In all, the question of whether it was reasonable for the insurance company to insist on additional medical information beyond what it already knew and insist on further verification of the attorney’s lien issue, and whether the insurance company reasonably handled the purported “tender” are indeed factual disputes that must be determined by the finder of fact. It is without a doubt that the record contains genuine issues of material fact to be resolved by the fact-finder as to whether the insurance company acted fairly and with due regard for the insured’s interest; whether the insurance company’s actions were reasonably diligent and exercised with reasonable care. Accordingly, the court finds that the summary judgment appealed from must be reversed.
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A employee of a nursing home also worked part-time at a realty office as a clerk. She was married and she had young children. She rode as a passenger in the car driven by a friend. The car she was riding in was involved in a car accident. She lost consciousness and was taken to the hospital in an ambulance. When she regained consciousness, she complained of pain in her neck, her spine, her shoulder, her wrist, her hips, her knees and her ankle.

The initial diagnosis was a fracture of her cervical spine. MRI and CT Scans as well as x-rays were taken of her but a fracture was ruled out. She stayed a total of three days in the hospital but she was later discharged. She was ordered to see a neurologist to determine the cause of her pain. She was also advised to see an orthopedist and a chiropractor for the management of the pain she was experiencing. She was also advised to undergo physical therapy.

The Westchester employee testified that she sustained a back injury at work sometime six years prior to the accident and she was also in a motor vehicle accident nine years prior to the accident. She experienced pain in her lower spine and legs but she also testified that the pain she felt then was not in the same area that she feels pain now. She claims that she can no longer lift heavy things the way she used to do before the accident in 2006. She worked in a nursing home and her duties include assisting the elderly patients and residents in the nursing home. After the accident, she can no longer stand or sit for long periods of time and she has difficulty assisting to the patients’ physical needs. She couldn’t engage in sports the way she used to do prior to the accident and she cannot do laundry anymore as laundry involved bending down and lifting heavy clothes, lifting wet clothes and putting them in the dryer. All the movements involved the use of her back which now gave her constant pain.

The Staten Island defendants filed a motion for summary judgment alleging that the woman’s injuries, although they may have included her spine, have already been resolved and so, they are not compensable as serious injuries under the Insurance Law. The defendants asked for the dismissal of the employee’s cause of action.

The Court held that the attending physicians of the employee were a neurologist, a radiologist and an orthopedist. They were all unanimous in finding that the condition of the woman’s spine was within normal range. However, they all agreed that there were bulging discs, dessicated discs and compressed discs that may be age related or may be caused by a degenerative disease. They all reported that leg raising and flexing of the lower back in various postures caused muscle spasms. They all opined that the pain constantly experienced by the employee may have been initially caused by age-related degenerative damage to the spine which was aggravated or exacerbated by the spinal injury she sustained in the car accident.

The Court resolved to deny the motion for summary judgment filed by the defendants. The Court found that the reports of the three physicians raise an issue of material fact which must be tried by a jury. The issues of material fact was whether or not the employee suffered indeed from age-related or degenerative spinal condition; and whether or not the accident caused an exacerbation or aggravation of a pre-existing spinal condition; and whether or not this constitutes a serious spinal injury which is compensable under the Insurance Law.
The case was remanded for trial on these issues.
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A woman was driving her car sometime on June 10, 2005. She was involved in a vehicular accident. The impact caused her neck to snap back and her entire body was shaken violently. She lost consciousness and she was taken to the hospital by the emergency services. She experienced excruciating pain in her neck and left shoulder. An x-ray was taken of her and she was observed overnight in the hospital. The next day she was discharged but was advised to go for follow-up a neurologist. The woman experienced tingling and numbness from her back to her hips and from her shoulders to her fingers. Her neurologist advised her to undergo physical therapy.

The physical therapy alleviated the tingling sensation somewhat but the numbness persisted. The neurologist referred her to a neurosurgeon who advised her to undergo surgery on her spine. The woman was afraid of having any surgery on her spine so she went to a chiropractor instead.

Until the trial, the Queens woman testified that her arms, shoulders and hips become numb when she holds a position for a long period of time. She has trouble turning her neck and she has trouble lifting things. The woman is a nurse who works with newborns. She assists in deliveries of infants and she also cares for newborns in the intensive care unit. Her work involves standing for long periods of time which she now finds difficult to do without experiencing pain and numbness.

She claims that she has had prior injuries in 1986 when she sustained a concussion in a car accident. She also suffered injury in her right arm in 1992. She slipped on the ice in 2001 and at work a heating lamp fell on her which injured her shoulder.

The woman filed a cause of action in damages against the driver of the other car involved in the car accident. She claims that the car accident caused a serious injury for which she now claims compensation in damages.

In support of her claims, her personal Staten Island physician submitted a report which stated that the woman was undergoing treatment for chronic knee pain caused by sprain of the ligaments in the knee and in the patella. The doctor’s impression was that the woman needed a blood work-up to determine if she is suffering from rheumatism.

A radiologist also provided a report on an MRI which was performed on the woman’s neck at or around the time of the accident. The radiologist saw that there was degeneration in the cervical spine of the woman. There was narrowing and dehydration of her discs. The radiologist failed to state the probable cause of the degeneration in the woman’s cervical spine.

A psychiatrist who was also a neurologist also examined the woman and she reported that the range of motion of the woman’s lumbar spine was normal. However, there is nothing in the report that states what kind of range of motion tests were performed on the woman. The doctor opined that the woman has no neurological disability or limitations. The doctor could not see any reason why the woman cannot continue her usual and daily activities.

The opponent of the woman in this suit (the driver of the other car involved in the accident) filed a motion for summary dismissal asking that her cause of action be dismissed.

The Court held that the conflicting medical reports of the doctors who examined and treated the woman’s spine give rise to an issue of material fact that must be tried by a jury. The Court denied the motion for summary judgment and remanded the case for trial.
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A man suffered serious personal injury as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The Queens man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Staten Island Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s insurance company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the aggregate amount applied. Specifically, the parties disputed whether the attorney’s failure to name the Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s insurance company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

The insurance policy in question is a claims-made policy which covers claims made against the insured during the policy period. Specifically, the policy provides that it will pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period.

Claim means a demand received by the insurance company or an insured for money or services while wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an Insured.

The construction of an insurance policy is a question of law for the court. Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

The man contends the aggregate policy limit should apply where his attorney committed multiple wrongful acts by failing to join several accused parties in his medical malpractice action. Because each of these accused had separate insurance coverage available to pay a damage award, the man argues he had multiple claims against his attorney. However, the counsel’s insurance company asserts that the man has only a single claim because he suffered one injury – he did not receive his full recovery because the attorney failed to join all the proper accused parties before the statute of limitations tolled. Even if the failure to sue each accused is considered a wrongful act, the counsel’s insurance company argues these wrongful acts are related to the man’s sole medical malpractice claim against his attorney.

The counsel’s insurance company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money, namely the lost recovery because of the failure to join various other accused parties and thus one claim. Even if the man had multiple claims against his attorney the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The court considered whether two acts of negligence were related so that notice of the first act constituted timely notification of both alleged acts of negligence. The man’s first claim of insurance agency negligence was for the agency’s failure to procure primary insurance coverage. It then later claimed that the agency was negligent in failing to notify an excess carrier of a third party claim against the insured.

Courts have pronounced different analyses in determining what constitutes a related act. Under the analysis of the State Supreme Court, however, the question appears to be whether each of the claimed negligent acts contributes to, or causes, the same monetary loss. If the errors lead to the same injury, under the Supreme Court analysis, they are related. Under the analysis of the United States District Court, acts will not be related if they arise out of separate factual circumstances and give rise to separate causes of action.

In this case, the claim was for the entire amount of the man’s uncollected damages as a result of the failure to join several accused parties in the suit, and all of the acts of negligence caused or contributed to the inability of the man to collect the entire amount of his damages. Thus, the negligent acts were logically related in accordance with the policy definitions.

In a related case, the contractor attempted to argue that there were two claims because it had two sources of payment. Supreme Court rejected the argument and stated, that when, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained — there is a single claim under the attorney’s professional liability insurance policy. Applying that rationale to this case, the man retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible accused parties in his action. The attorney’s negligent omission may be considered multiple wrongful acts, but the man suffered only one injury — an award that does not represent the full extent of his damages.

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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Sometimes, people assume that attorneys do not need to hire attorneys. However, the truth is that attorneys in Manhattan understand that only a fool will defend themselves. Hiring an attorney to represent a person who has incurred a personal injury is the smart thing to do. Lawyers are people, too. That means that there are times when a lawyer will hire a lawyer to help them defend themselves from a situation. These situations can come in the form of automobile accidents, estate matters, real estate matters, or personal injury. There are even times when an attorney is required to hire another attorney to defend them against a criminal matter.

Recently, in 2012, a prominent attorney was called upon to defend himself from charges of DUI that stemmed from his driving in the city of Atlanta. He slid through a traffic light at three in the morning when he thought that no one was around on his way home from a meeting with state legislatures where he had consumed two glasses of wine with dinner. Although, his driving had not endangered anyone, and he had not demonstrated any level of impairment by failing to maintain his lane of traffic, the officer who stopped him asked that he perform field sobriety tests. Field sobriety tests are voluntary. However, if you choose to perform them, your demeanor and the results of the tests can be used against you in a court of law. The attorney decided that he would not participate. He refused to participate and he was arrested by the officer for DUI and taken for a mandatory test under the laws of the state. The charges were eventually dropped with the help of a DUI attorney that was hired by the arrested attorney to defend him. Even attorneys need one every now and then.

Another case in Staten Island that involved an attorney who required legal assistance from a specialist in the field, involved a case of defamation and breach of contract that was filed by an attorney in the State of New York in 2006. The complainant attorney was not getting along with the other attorneys in her firm and decided to resign. When she left the firm, several of the clients that she had been serving chose to leave that firm and maintain her as their lawyer. The controlling partner of the law firm wrote several letters to these clients encouraging them to leave her and return to his firm. The complaining lawyer, filed a lawsuit alleging that the managing partner of her previous firm had defamed her character and breached the hiring contract that she had with him. The managing partner filed a motion with the New York State Court System to grant him a motion of summary judgment dismissing her case against him for lack of evidence.

The complaining attorney stated that she had resigned because as her letter of resignation showed, she believed that she would soon be called to testify in disciplinary actions by the legal disciplinary committee against that firm for unethical conduct. The defendant law firm contends that the complainant poached clients and removed client case files without first obtaining permission from the firm. The firm claimed that they were owed legal fees from the cases and clients that chose to leave the firm and follow the complainant to her own firm. The complainant contends that the firm committed libel against her by sending letters to these clients that portrayed her as a novice with no experience. They claimed that she had not won any cases and was considered incompetent by the firm. The letters encouraged these clients to return to the firm since the complainant would not be able to properly attend to their cases. The letters claimed that she would not be able to disperse any winnings to them until the courts had sorted out the liens that his firm against her for attorney’s fees associated with the work that the firm considers to have been done by them. The letters inflated the possible monetary damages that the client should expect to receive in their cases by comparing their case to one that he claimed to have won for a large dollar amount. The letters were packed with exaggerated claims and derogatory comments toward the attorney who had parted from the firm.

The firm contends that the statements that were made in the letters should be protected by the qualified common interest privilege or by the absolute privilege that is between attorney and client. They contend that the statements in the letters were all either true or were non-actionable opinions aimed at providing legal advice. Because of this, they claim that the comments were not defamatory and the court should dismiss the suit. The complainant, maintains that the comments were defamatory because they were designed by the firm to injure her in her business and profession and that since the firm was no longer representing the clients, they could not confer attorney client privilege in their cases.

She further claims that she had a contract with the firm to provide her with a bonus each time a case was won. She stated that while the contract was not written, it was common knowledge in the firm that every attorney who won a case received a bonus. She stated that she had not received a bonus for a case that was won on her work the month after she left the firm and that she deserved a bonus for that work. The original trial court agreed with the complainant attorney. They felt that because the firm was no longer representing the clients that there was no longer an attorney client privilege to be protected in a letter that was unsolicited from the clients.

Further, the original trial court maintained that the comments in the letters were intended to cast aspersions on the conduct and reputation of the complainant attorney. As such, there was a triable issue of fact that should go before a jury because the comments were susceptible of being interpreted as defamatory. The firm maintained that they shared a common interest in the outcome of these client’s cases because they expected to share in the damages if the complainant attorney should win the cases. The law says that a qualified privilege exists when a person has an interest that is either legal, moral, or a social duty to speak if that person shares an interest in the object of conversation. The boundary in this case is if the comments were made with malice. If they are, then a common interest privilege does not exist. The original trial court determined that the comments made in this case did not qualify for a common privilege because they were clearly made with malice.

While the original trial court agreed with the complainant attorney, on appeal the firm won the argument by having the case dismissed. The Supreme Court of New York County did deny the firm’s request to dismiss the first, second, and tenth causes of action and the case was dismissed as to the contractual issue.
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On 21 September 2003, a motor vehicle accident occurred at approximately 10:00 p.m. The victim was reportedly hit by a car while in front of 7420 13th Avenue in Brooklyn. According to the police accident report, the accident was witnessed by the husband, both of whom are listed as residing at the same address. The witness told the police officer that the driver of the vehicle and the victim were having a verbal dispute; that when the victim approached the vehicle, the driver sped away, apparently striking the victim, who fell onto the pavement and struck her head. The driver of the vehicle left the scene, but the witness reported the license plate number, V272LZ, to the police officer. The police accident report does not set forth any insurance information for the victim. Thereafter, the license plate was traced to an individual residing in Staten Island and that the vehicle is insured by an insurance company.

Beginning on or about 26 September 2003, the victim underwent medical treatment for her injuries from respondent. Respondent submitted claims to the insurance company which issued a denial on 1 December 2003, based on its investigation that the alleged driver was not involved in the loss. It is unclear whether petitioner was aware of the denial at that time. On 10 December 2003, the victim completed a “Notice of Intention to Make Claim” to the petitioner, in which she avers that her injury is not covered by insurance. She also completed an “Affidavit of No Insurance”, in which she states that she was a passenger in a vehicle insured by an insurance company; the victim swore under penalty of perjury that: on the date of the accident, she maintained no insurance which would provide coverage to her for the accident, and no person residing in her household owned an automobile or maintained such insurance.
Respondent submitted bills to petitioner totaling $4,302.79 for services. Petitioner denied the claim, since the vehicle that was reported was insured.

Meanwhile, the victim commenced a personal injury action for the head injury she suffered against the driver in Supreme Court, Kings County. According to petitioner, after depositions, the driver moved for summary judgment; the Brooklyn victim failed to oppose the motion, so the motion was granted on default. The Lower Arbitrator states that the case was dismissed because the victim failed to provide disclosure.

On 1 June 2007, respondent then filed a claim for arbitration with the American Arbitration Association against both petitioner and the insurance company.

Under the Lower Arbitrator’s decision, it was found that the alleged driver was not the person involved in the accident. Therefore, the claims were dismissed against the insurance company on the ground that the insurance company’s insured was not involved in the accident. The Lower Arbitrator then tamed to whether petitioner was required to provide benefits to the victim. Petitioner requested an adjournment to determine whether or not another insurance policy existed. However, the arbitrator rejected such request on the ground that petitioner failed to exercise due diligence for nearly four years. The arbitrator denied the request for a stay and found petitioner responsible for payment of first party benefits to the victim. The arbitrator found that petitioner failed to issue any denial of the claim within thirty (30) days of receipt of the Notice of Claim, as required or failed to otherwise seek to toll the thirty-day time period by seeking a request for verification. The arbitrator determined that petitioner was precluded from asserting a defense that the treatment was not medically necessary, and found that of the $4,302.79 claimed, respondent was entitled to payment of $2,337.85 for the victim’s treatment, with interest at the rate of 2% per month, together with attorneys’ fees.
Thereafter, the decision was appealed to the Master Arbitrator who affirmed the said decision. The Master Arbitrator found that the award was not irrational, biased, arbitrary, capricious, or incorrect as a matter of law. The Master Arbitrator rejected petitioner’s contention that they were under no obligation to investigate whether another insurer was responsible unless and until it was determined that the insurance company was not responsible; that he found petitioner’s contention that it had no duty to investigate to be inconsistent with the purpose and intent of both Article 51 and Article 52 of the Insurance Law.

Hence, the instant appeal.

The Ruling:
The petitioner was created by the Legislature, pursuant to Article 52 of the Insurance Law, to pay damages for bodily injuries to innocent victims of motor vehicle accidents cause by uninsured motorists. To recover benefits, the injured individual must be eligible. Insurance Law defines a qualified person as a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle.

Here, if in fact the victim had valid insurance coverage at the time of the accident, she is not a qualified person. Until it was clear that the insurance company was not responsible, petitioner had no reason to investigate whether the victim may have given false information on the petitioner’s forms as to whether or not she was insured. The essence of petitioner’s argument is that this is a lack of coverage issue, since the victim would not be covered by petitioner if she has other insurance.

Moreover, the case relied upon by the Master Arbitrator is inapposite. In that case, the issue was whether the injured party’s claim was fully submitted on 23 June 2003, in which case petitioner’s denial, issued on 7 October 2003, would be untimely, or whether the injured party first qualified on 30 of September, in which case a denial issued on 7 of October would be timely. The only issue in that case was the timeliness of the rejection.

However, the issue here is whether there is lack of coverage, and when petitioner was reasonably put on notice that it needed to investigate whether the victim was not insured. Petitioner had no reason to believe that the insurance company was not responsible for payment until the time of the hearing, when the insurance company submitted evidence that the alleged driver was not the actual driver of the vehicle.

As a rule, courts are reluctant to disturb the decisions of arbitrators lest the value of the method of resolving controversies be undermined.

Here, petitioner presented some evidence to the Lower Arbitrator that there was an issue of possible lack of coverage, and requested an adjournment of the November 2007 hearing, after three adjournments had been granted on behalf of the insurance company. While petitioner contends that it was entitled to rely on the police report that showed the other vehicle had coverage and had no duty to act to investigate the accuracy of the victim’s claim of lack of coverage, the herein court does not condone petitioner’s failure to promptly investigate whether or not the victim was otherwise covered by insurance. The primary purpose of petitioner is to promptly pay the claims of those uninsured individuals who have legitimate claims. Therefore, since lack of coverage goes to the heart of whether a claim is legitimate, the issue of lack of coverage may be raised at any time. Under these unique factual circumstances, the arbitrator’s failure to grant petitioner’s request is deemed to constitute an abuse of discretion constituting misconduct within the meaning of the rules, since it resulted in the foreclosure of the presentation of pertinent and material evidence.

Therefore, the Lower Arbitrator’s failure to allow petitioner to fully explore this claim, despite their failure to do so promptly, warrants a remand for a new hearing.

A disclaimer based on lack of coverage is not a denial that must be asserted within the thirty-day period, since the essence of a claim of lack of coverage is that there is no policy in effect. Since petitioner was not afforded an opportunity to fully explore the issue of lack of coverage, the matter must be remanded for a new hearing.

Additionally, petitioner learned that approximately one year before the accident, the victim commenced an uncontested matrimonial action in New York County against defendant, who is listed as her husband on the police accident report. The court records that petitioner obtained from eLaw show that the plaintiff in the matrimonial proceeding is listed under the same name of the herein victim and that she had a policy with another insurance company covering the date of loss. Thus, petitioner is entitled to present this information during the arbitration proceeding.

Undoubtedly, there is sufficient information to remand the matter for a new hearing and petitioner is allowed to present evidence to show that the victim is not entitled to petitioner’s benefits because she is otherwise insured.

Accordingly, the decisions of the Lower Arbitrator and Master Arbitrator are vacated; those portions of the decisions that determined that the insurance company is not responsible shall remain in full force and effect; and the matter is remitted to the arbitrator for further proceedings.
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This case is about a defendant-corporation seeking the dismissal of the complaint pursuant to CPLR 3211 (a) (7) by reason of the Graves Amendment; and the plaintiff seeking leave of court to amend the complaint pursuant to CPLR 3025 (b) in order to avoid dismissal on that ground.

Plaintiff alleged that on April 29, 2006, she sustained serious personal injuries as a result of a collision between her vehicle and a vehicle owned by defendant-corporation and operated by defendant-driver. She further alleged that defendant-driver was an employee of defendant-corporation, and was operating the vehicle “under the course of his employment,” and “with the express knowledge, consent and/or on the business” of defendant-corporation. The collision was allegedly caused by “the defendants’ negligence, carelessness and recklessness”.

A Federal statue, known as the Graves Amendment “bars vicarious liability actions against professional lessors and renters of vehicles,” as would otherwise be permitted by Vehicle and Traffic Law § 388. “Vicarious liability laws caused lessors to either cease leasing cars in states having them, opting for more expensive balloon note structures, or spread the cost of higher insurance premiums to lease customers nationwide.”

To claim immunity from vicarious liability under the Graves Amendment, the owner of the subject vehicle must be “engaged in the trade or business of renting or leasing motor vehicles”; the subject vehicle must have been “rent[ed] or lease[d] . . . to a person”; and “harm to persons or property” must have occurred “during the period of the rental or lease.” If these conditions are met, the statutory immunity attaches unless there is “negligence or criminal wrongdoing on the part of the owner.”

On the other hand, vicarious liability is not abrogated where injury or damage results from the negligence of the owner’s employee in the operation or maintenance of the vehicle, nor it seems where the owner was negligent in entrusting the vehicle to the operator.

Defendant-corporation was able to establish prima facie that it meets the requirement for coverage under the Graves Amendment. However, the Court held that it failed to establish even prima facie that the subject vehicle was “rent[ed] or lease[d] . . . to a person,” and that the collision occurred “during the period of the rental or lease.” The Loss Control Manager asserted only that she is “fully familiar with the personnel and records of” defendant-corporation, and that the Renter [sic] of the vehicle, defendant-driver, was not an employee at the time of the subject car accident.” The assertion that defendant-driver was a “Renter” of the subject vehicle must be based upon some writing or record, but it was neither provided nor described or identified; and the assertion that defendant-driver was not an employee of Defendant-corporation must be based upon a search of records that did not reveal his name, but no description of the records or the search was provided.

The Graves Amendment confers immunity on a rental/leasing owner “if . . . there is no negligence or criminal wrongdoing on the part of the owner.” The word “if” is conditional, and generally one claiming a benefit must show that any condition to the benefit has been satisfied. On the other hand, “[i]t is generally inappropriate to place the burden of proof on a party” – here, the injured plaintiff who is a stranger to the rental/leasing arrangement – “in a case where the facts governing the resolution of the controversy are within the exclusive knowledge of the opposing party.”

With respect to Manhattan and Staten Island Plaintiff’s motion for leave to amend the Verified Complaint to include that Defendant-corporation “negligently entrusted” the subject vehicle to defendant-driver when it “knew or should have known that [he] was incompetent, untrained, and not fit to operate the automobile,” the court held that “In the absence of prejudice or surprise resulting directly from the delay in seeking leave,” an application for leave to amend a pleading pursuant to CPLR 3025 (b) is “to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.”
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This case is about a car accident involving three vehicles that happened at the intersection of Hempstead Turnpike and Silver Lane in Levittown. The defendants were indicted and charged with manslaughter in the second degree and criminally negligent homicide on alternative theories of individual and accomplice liability.

The accident happened on January 31, 1983, around 11:00 P.M. wherein the Chevrolet Nova of the victim, which was turning left from the westbound turning lane of Hempstead Turnpike across the eastbound lanes thereof into Silver Lane, was struck by two cars rapidly approaching in the eastbound lanes of the Hempstead Turnpike. The Staten island car in the eastbound center lane, a blue Pontiac Trans Am, separated from the collision, skidded to the south curb and flipped over. The car in the eastbound left lane, a red Camaro, dragged the Nova further east down Hempstead Turnpike until they both came to a stop near the south curb. The Queens driver of the Chevrolet Nova died instantly from skull fractures and intracranial hemorrhage. The defendant-driver of the blue Trans Am was removed unconscious from his car with trauma injuries. The defendant-driver of the Camaro and his passenger sustained only minor cuts.

The prosecution introduced at trial the defendant-driver of the Camaro and moved that the case be tried before two juries, one for each defendant. The trial court granted the said motion and impaneled two juries. The members of each jury were given labels to wear designating which defendant’s fate they were considering. They were instructed by the trial court not to communicate with the members of the other defendant’s jury, and not to speculate about the reason for the presence in the courtroom at times of only one of the two juries. Opening statements were made to each jury separately and then both juries were brought into the courtroom to hear the testimony. During the introduction of the inculpatory statements of the defendant-diver Camaro, only his jury remained in the courtroom while the other defendant’s jury was excluded. Separate summations were delivered to each jury and, without objection, the court gave one charge to both juries, omitting any mention of the inculpatory statements.

Both defendant-drivers denied that they knew one another prior to the car accident. Each, however, admitted that he had noticed the other car and driver as they were stopped side by side at a stoplight .4 of a mile west of the accident site. Each denied exchanging any words or signals with the other. Defendant-driver of the Camaro testified that he proceeded first when the light changed and accelerated to “a little over 40, tops” when suddenly a car turned directly in front of him. He stated that he braked and turned his wheel to the left but that it was too late to avoid the collision and his Camaro hit the right rear of the Nova, rotating the Nova in a clockwise direction into the path of the Trans Am.”

On the other hand, the prosecution presented an eyewitness, which testified inter alia that the two vehicles were drag racing on the said street before the impact. Three accident reconstruction experts and their testimonies were also presented. These experts estimate the pre-impact speed of the Trans Am and Camaro ranged from 70 to 90 miles per hour, while the Nova’s speed was estimated at 15 to 20 miles per hour as it made its turn. Based on their calculations and observations, it was the opinion of these experts that if the eastbound cars had been travelling at 40 or 50 miles per hour, they would have passed behind the Nova and the collision would not have occurred.

The court held that the evidence was legally sufficient to support the verdicts of both juries finding both defendants guilty beyond a reasonable doubt and that the verdicts are not against the weight of the evidence. The evidence in this case of excessive speed coupled with the circumstances under which the incident occurred, at night on a well-travelled highway where traffic is restricted to a moderate speed, the two cars speeding side by side and hitting a turning vehicle without any braking or evasive action, sufficed to sustain the prosecution’s burden of proof.

The court also held that the dual jury procedure was carefully planned and fully explained to the juries, the defendants and their counsel. The plan was strictly adhered to, and no problems arose during the trial. Despite the assertion on appeal that the simultaneous charge to both juries here was prejudicial and confusing, there was no objection from either defendant on that basis prior to deliberations and any error in that respect is therefore unpreserved for review. In any event, the court found neither error nor prejudice in the simultaneous charge.
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A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

According to the woman’s statement, after the car accident the police responded to the scene but an ambulance did not arrive. The Queens woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman’s bill of particulars.
The woman also claims that as a result of the accident she sustained several spinal injuries. She contends that the injuries was due to the motor vehicle accident and qualify as serious injuries in insurance law. Based on records, serious injury under the insurance law is defined as death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of body organ, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined damage of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the incident.

Based upon the plain reading of the papers submitted, the woman is not claiming that her injuries fall within the first five categories of the serious injury definition which includes death, dismemberment, significant disfigurement, a fracture or loss of a fetus. Therefore, the Staten Island court restrict its analysis to the remaining four categories of insurance law that includes permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system or a medically determined damage 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 ninety days during the one hundred eighty days immediately following the occurrence of the incident.

Consequently, the opponent of the woman move to dismiss the action against her on the ground that the complainant’s injuries do not meet any definition of serious injury as defined in insurance law.

Based on records, in moving to dismiss the case, the opponent must make sufficient evidence that the complainant woman did not sustain serious damages within the meaning of the law. Once it is established, the burden then shifts to the complainant to come forward with evidence to overcome the opponent’s submissions by demonstrating a triable issue of fact that a serious harm was obtained.

The opponent submits a physician’s affirmation from an orthopedist. In his affirmation, the orthopedist indicated that his physical examination to the woman was essentially unremarkable with completely normal functional capacity of the cervical and lumbosacral spine areas, as well as the upper and lower extremities. Based upon his review of the provided medical records and his examination, there was no evidence of radiculopathy. He dismisses the possibility of a compression deformity of L3 as indicated on the MRI findings as it is related to a schmorl’s deformity as documented in the official MRI report and is not related to a posttraumatic event or to the accident.

The orthopedist further states that as a result of the accident, the woman sustained mild strains of the cervical and lumbosacral spine areas. The condition resolved uneventfully with the passage of time. There is no evidence of disability, sequelae or permanency. The woman has a completely normal functional capacity of the musculoskeletal system and no further treatment is needed.

In opposition to the opponent’s instant applications, the woman submitted records from three doctors. She also submits her own affidavit.

The MRI report of the cervical spine prepared by one of the doctor indicates the there was a posterior disc herniations at cervical spinal nerve 5-6 and at cervical spinal nerve 6-7 which is both eccentric toward the left impinging on the anterior aspect of the spinal canal and on the left intervertebral foramina. With the MRI report of the lumbar spine prepared by the orthopedist, it indicates a posterior disc herniation at lumbar spinal nerve 5 to sacral spinal nerve 1 impinging on the left nerve root. In addition, there is also a mild central compression deformity in the lumbar spinal nerve 3 vertebral body superiorly with an associated schmorl’s node and probably had no acute significance. It is an osteoarthritic changes’ at lumbar spinal nerve 4-5.

The orthopedist also affirmed that the woman is partially disabled and that her injuries are causally related to the car accident. He indicates that the woman suffered a decreased range of motion in her cervical and lumbar spine. He recommended chiropractic care, physical therapy, and epidural injections.

A neurologist also affirmed that upon range of motion testing with inclinometer there is a limitation of the cervical spine and lumbar spine. The neurologist moreover conducted a nerve conduction studies, wave studies, reflex studies and EMG studies. The electrodiagnostic study revealed evidence of right L5-S1 radiculopathy. He also performed additional range of motion testing with inclinometer which revealed decreased range of motion of the lumbar spine. Based on record, inclinometer usually used to measure and evaluate ranges of motion of the human joint. In his letter, the neurologist states that the woman’s lapse of treatment was due to the fact that the patient was recommended to continue physical therapy.

The woman additionally submitted her own affidavit which states that as a result of the accident, she was unable to attend her employment for several days. She was confined to her home after work and on weekends for approximately four (4) months following the accident. She indicates that she stopped seeing her orthopedist and his neurologist because she didn’t believe that the treatment would improve her condition and her insurance had stopped paying for treatment which she could not afford to pay herself.

When the court examined the medical evidence offered by the woman on a threshold motion, the court ensure that the evidence is objective in nature and that the woman’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Consequently, the court denied the motion of the opponent to dismiss the claims against her.
There are times that when emergency occurs, instant reaction from our body comes out and gives as extraordinary strength, swift movement and even unusual tolerance to pain.
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