Bankruptcy Stay

“I have an existing case which seems to be taking forever to settle. I was told there is a stay or hold on the case because one of the defendants is in bankruptcy. How long can a case be stayed?”

When we initially consult with clients, we try to give clients a range of how long their case might be around until it is resolved. This is far from an exact science, but based upon the case type, likely venue, and decades of experience, we are able to give people a good faith range. However, when one of the defendants files for bankruptcy protection, this puts a hold on the case until the bankruptcy case is resolved in some fashion.

A bankruptcy is settled when the creditors agrees to a plan to pay off debts, or the debtor files for liquidation to get rid of their debt. Either of these options take years, and all the while, the personal injury case sits idle. We normally advise our clients to go to the bankruptcy court and petition to lift the stay to the extent of available insurance. This limits the personal injury recovery to the extent of insurance (whether it is $1 million or $25,000), but it moves the personal injury case toward settlement. This is normally in the injured party’s interest because if the defendant is already bankrupt, the odds of collecting a judgment against such a defendant are minimal.

Bankrupt defendants must be handled quickly and professionally. The attorney must file a ‘proof of claim’ with the bankruptcy court when she or he learns of the bankruptcy. The attorney will also have to file a stipulation or possibly a motion in bankruptcy court to lift the stay.

I will share one story of a prior case with our office of one of the longest running cases we had. In this particular case, after some initial discovery, one of the defendants filed for a bankruptcy stay putting the case on hold. The defendant was a business entity and it took some time to lift the stay in bankruptcy court.  Unfortunately, when the stay was lifted on the defendant, the defendant’s insurer went bankrupt. There was another stay until the New York Liquidation Bureau took over the case from the bankrupt insurer and eventually the client received a settlement. But this case was an extreme outlier.

Length of Time for Settlements

“How long does it takes to get an insurance company settlement?”

There is no one answer for every case.  Cases in certain counties tend to move more quickly than cases in other counties. This is true for both New York as well as New Jersey.

The common types of personal injury cases like car accidents and trip and fall accidents tend to move the quickest. The less common cases like contruction accidents or medical malpractice claims usually take longer.

We tell our clients that most car accidents cases and trip and fall claims brought in Supreme Court, Richmond County settle in between two to three years.  Some cases settle more quickly, some take longer. But there are so many different factors that determine how long litigation takes until a trial or settlement, that it is not fair to give a specific length of time for litigation, especially without knowing the particulars of your case.

Worker’s Compensation claimants may receive no settlement at all. Such settlements only occur when the claimant’s medical conditions have stabilized and the doctor submits a report commenting on disability. There is no set time how long a medical condition takes to stabilize. Furthermore, unlike cases brought in Supreme Court, there are formulas that the Componsation Board uses to calculate the amount of a settlement. (The amount of the settlement is computed on a case by case basis.)

Liens on Accident Claims

If my medical bills were paid by insurance, do I have to pay back the insurance company from my personal injury settlement?”

There is no short answer to this question.  When someone is injured in an accident, they need immediate medical trereatment.  There is no time to wait for a personal injury case settlement which coulkd take years. Medical providers like to be paid for their services rendered. So in almost all accident cases, there is some insurance entity paying the bills for medical treatment. The question really is, will that entity that paid for medical treatment have to be repaid for those medical billls it paid?

Generally, for car accident cases, there would be no lien (but there are certain cases where you do have to pay back medical bills paid by insurance).

For many claims involving innuries on the job, the Worker’s Compensation Carrier who paid the bills would have to be repaid. The amount of that lien would be reduced by proportional amount of legal fee and disbursements. (This would mean the reduction of the lien would be at least one-third of the total lien. (But there are certain types of Worker’s Compensation liens could be waived entirely, but that depends on the type of accident.)

For those accidents covered by Medicare, there is a lien and Medicare would have to be repaid for medical bills covered. But, just like Worker’s Compensation Carriers, Medicare will reduce its lien based on the amount of legal fee and disbursments.

For many other cases, there is no lien. It is difficult to understand the lien reductions without specific facts. But the best answer to the original question would be that there could be a medical lien reduction or waiver, but it really depends on the specific facts of your case.

Statute of Limitations for Personal Injury Cases

“How long do I have to bring a court case if I am injured in an accident?”

This question is so general that there is not one answer. But the question itself refers to the idea that there is statute of limitations or a cut off date beyond which you cannot file a law suit against a wrongdoer.

So the answer is it just depends. Although generally negligence claims in New York must be brought within 3 years from the date of accident and 2 years for New Jersey cases. This answer does not come close to answering your question. An attorney would need to ask you how the accident occurred and who was involved before giving a complete answer.

For example, some municipal claims must be filed in court within 1 year and 90 days of the accident (some must be filed within 1 year), but before you can file a lawsuit, you must file a notice of claim within 90 days after the accident. So is the statute of limitations 90 days or 1 year and 90 days (or both)?

There is a three year statute of limitations in New York for which a person is injured in a car accident by a private person (not a government owned vehicle or employee). But in order to win such a case, you, as the injured person, must prove in court you are are hurt. That means you must go to the doctor and take necessary medical treatment to cure yourself (if such a cure is possible). But in order to receive medical treatment, your no-fault carrier (that is, a health insurance rider attached to every car insurance policy) must receive notice of the claim within 30 days after the accident. So is the statute of limitations 30 days or 3 years (or both)?

I hope you do not see this response as ducking your question, but if you are not confused enough, you may be able to extend some of these deadlines by “tolling” the statute of limitations. So without many more specific facts, it is impossible to answer the question.

Motorcycle Accidents

“I am an enthusiatic motorcycle rider.  My insurance company has deicided that my insurance rates should increase to almost the same I pay for car insurance.  Has something in the law changed to allow insurance companies to increase rates for motorcycle policies?”

The short answer to your question is no.  There must be something that changed with you or one or more of the people in your household who have a driver’s licence.  Perhaps someone received a moving ticket violation or one of the other criterion were triggered that caused the carrier to raise your rates.  Your best bet would be to call the insurance carrier directly to find out what changed.

The reason motorcycle policies are so cheap compared to motor vehicle policies is because motorcycle policies cover you for liability in case you injure someone else in an accident.  You can also purchase additional riders to your motorcycle liability policy for theft and collision in the event your motorcycle is stolen or damaged in an accident, these endorsements could be expensive depending on the type of motorcycle you own. The major difference bewteen motorcycle policies and motor vehcile policies is the required no-fault endorsement that is in New York motor vehcile policies.

Motorcycle riders must follow the same rules of the road as cars and trucks.  So any type of reckless driving, like weaving in and out of traffic, would be looked on the same as if the operator were driving in a car.  In a negligence case brought by a motorcyclist, the court determins fault by the same vehicle and traffic law sections that govern cars.  So the cost for the liability portion of the motorcycle policy would be similar (but not exectly the same) to a liability policy for a motor vehicle.

The main difference in motorcycle policies is that there is no “no-fault” endorement (PIP -personal injury protection – endorsement)  for motorcycles.  The PIP endoresement of a motor vehicle policy has a medical insurance and disability insurance rider attached to the policy.  The endorement for medical and lost wage benifits – PIP endorsement – is very expensive.

Car passengers, drivers, and pedestrians are covered for medical expenses and lost wage benefits (within certain limits) right after an accident, regardless of fault in the accident. Motorcyclists are not covered for lost wages and medical benefits right after an accident. Motorcycle riders would have to sue the at-fault vehicle for lost wages, medical bills and pain and suffering, and probably wait years to collect. Car passengers, drivers, and pedestrians can also sue for pain and suffering (and may possibly have to wait for years to collect on that claim) but medical expenses and lost wages are paid right after the accident.