Noncommercial Guidance for NYC Pedestrians and Cyclists in Case of Possible Car Crash Injury

How to File an Insurance Claim:
Obtaining No-Fault coverage for NY cyclists and peds

For No-Fault claims in New York State:

For hit-and-run and uninsured crashes :

For liability claims

  • Liability claims (for property damage and pain and suffering) are discussed here, but are beyond the scope of this site.

Cyclists and peds are entitled to No-Fault benefits

Under New York’s No-Fault Law, pedestrians and cyclists hit by vehicles are entitled to medical and other benefits up to the policy limits, regardless of their state of residence or fault in causing the crash.

MVAIC covers New York residents in hit-and-run and uninsured crashes.

Also see Insurance for Pedestrians & Cyclists.

Notify all potentially responsible parties

To preserve your right to file an insurance claim, you must notify parties who might have responsibility. You must give written notice within 30 days for a No-Fault claim and for most private insurers. (Different deadlines apply to MVAIC; see below.)

After reporting the crash, take this next necessary step to protect yourself in case you do need medical care, now or later. You don’t have to file the claim (request for payment) if it turns out you didn’t need medical care.

Generally, giving notice means sending a simple letter to the car owner’s insurer. This Nolo Press page says that, in your letter, you need only tell the parties that there was an accident at a certain time and place; that you were injured; and that you intend to file a claim. You don’t have to disclose the money damages or extent of injury at this time. Don’t give more detail than necessary.

Send the notice via certified mail and get a registered receipt, in case the insurer later claims they never received your letter. Don’t use email. Based on my interviews, insurers appear to lose their mail frequently.

Your Police Accident Report will list a code that identifies the driver’s insurer. The state insurance department identifies the codes here.

Inform yourself of the requirements and deadlines for filing a claim. Understand your rights and standard insurance industry procedures to ensure that you are not disqualified on a technicality. If you decide to file a lawsuit for a serious injury, Chapter 3 of Nolo Press’s How to Win Your Personal Injury Case gives a helpful general overview.

A bewildering multitude of public and private organizations are involved in every car crash in New York City. Don’t be discouraged or intimidated. In the mishmash that is auto insurance, someone somewhere can be found to pay for your expenses, according to Portland-based bike attorney and author Bob Mionske.

Who might be responsible?

Several insurers may be considered liable for damages in any given instance. Your own auto or home insurance company may also need to be informed. To be on the safe side, figure out who might possibly be liable and send them all a letter of notice.

In general, responsibility for automobile personal injury claims falls to one of the following parties, in rough order of priority:

  1. The driver’s (car owner’s) auto insurer.
  2. The driver’s employer’s insurer.
  3. Worker’s Comp (if crash victim works for a covered employer).
  4. New York State Disability Insurance (if crash victim works for a covered employer, but was off the job when struck).
  5. The crash victim’s auto or home insurer*; Medicare and Medicaid.
  6. The Motor Vehicle Accident Indemnification Corporation (MVAIC). A nonprofit corporation funded by the insurance industry, the MVAIC is New York’s insurer of last resort, providing benefits to crash victims of uninsured or hit-and-run drivers who do not have other household coverage; and to victims whose claims are denied by an insurer.

  7. * NOTE: Private health insurers are not required to pay medical benefits to a person injured in a crash with an insured driver. Some of the better ones pay regardless; they then typically negotiate with the driver’s insurer for reimbursement. Others leave you out in the cold. This is another reason to report the crash and file a No-Fault claim.

The car owner’s No-Fault insurer is generally the default insurer, unless the victim is covered by Worker’s Comp or NYS Disability.

Medicare retains a lien on any future insurance settlement you may receive, to reimburse it for bills it paid due to your accident. For this reason, make sure your bills are submitted on time to the No-Fault carrier rather than Medicare.

The claims process

Important: All correspondence and forms should be submitted to the No-Fault carrier via certified mail, return receipt requested. Keep copies as proof of timely submission.

When an insurer receives your notification letter (within 30 days of the crash), they will send you a batch of forms to fill out. These may include verification of medical treatment, hospitalization, income, and so on. The NYS boilerplate forms reside here (http://www.dfs.ny.gov/insurance/r_finala/2013/rfcc13nf1a.pdf and http://www.dfs.ny.gov/insurance/acrobat/nf3.pdf). (Note that these are not exactly the same forms an insurer will send you, but they are broadly similar.)

You must submit bills for medical treatment (with certain proof) to the insurer within 45 days of date of service. Bills for other expenses must be submitted in 90 days.

Once your No-Fault claim is approved, if it’s determined within the first year that you will need benefits beyond a year, you theoretically can continue to receive them without limit (according to the state’s No-Fault cover letter form, p. 2).

Permissible fees for health services are established by the NYS commissioner of insurance, based on fee schedules set by the state’s worker’s compensation board. (NYIL §5108b) Charges in excess of these amounts may be granted by the insurer or arbitrator in unusual circumstances. (NYIL §5108a) Doctors and hospitals generally know these fee schedules. Some doctors may refuse to treat No-Fault patients if they think the fees are too low.

The No-Fault insurer is required to pay medical bills within 30 days of receipt. Overdue bills are to accrue 2% per month in interest. If your denied claim is restored by the superintendent of insurance or an arbitrator, you are also entitled to a small payment for attorneys’ fees incurred in getting the claim restored. (NYIL §5106)

When to be wary of an insurance settlement offer

If the insurer sends you a settlement letter and includes a release form, make sure you understand and agree with what you’re being asked to sign. For instance, if you file a property claim, and the insurer sends a liability waiver for personal injury in their settlement package—that’s a separate legal matter. You should be absolutely positive you won’t ever need to file a personal injury claim before you sign that form. See page 9 of this brochure from Mothers Against Drunk Driving.

Some insurance companies have the reputation of settling claims promptly or fairly, while others are renowned for their tactics in delaying and denying them. If you have followed the instructions for filing a medical claim, the insurer must pay. If they do not, you may need to challenge the insurance company, and as a last resort, apply to MVAIC.

The New York State Dept. of Financial Services ranks insurance companies by the proportion of upheld complaints against them based on written premiums. In 2010, the companies with the highest number of upheld complaints were: Long Island Insurance Co., with 265 out of 355 complaints upheld (a 25% ratio, or third worst, out of 181 companies), and Allstate, with 180 out of 1,023 complaints upheld (a 14% ratio). (These rankings do not include total complaints against any insurer. They include consumer complaints as well as No-Fault arbitration complaints that are ruled in favor of the consumer and are not appealed or paid by the insurance company within 30 days.)

MVAIC claims

For hit-and-run & uninsured car accident victims

MVAIC is an industry-supported fund intended to provide benefits to crash victims of uninsured and hit-and-run drivers. Applicants must be New York State residents. Eligibility and requirements for making a claim are different than those for No-Fault insurance.

Report a hit-and-run crash to the police within 24 hours. (Or as soon as possible. You may have to submit an explanation or affidavit as to why it was not possible for you to do so in that time.)

Try to obtain medical benefits under your own auto, health, or home insurance policy, or under the policy of a family member in your household. (As noted, private health insurers are not required to pay medical claims that should be covered under a driver’s No-Fault insurance policy.) You should also notify your insurers of the crash, as explained above.

If you cannot obtain other insurance, submit your claim to the MVAIC. To do so you must meet certain criteria, including show that the driver was not identifiable or did not have insurance.

Within 90 days of the crash, you must submit these forms to the MVAIC:

  • Notice of Intention to Make a Claim
  • Application for Motor Vehicle No-Fault Benefits
  • Household Affidavit

If the No-Fault insurer denies your claim

You may also claim to the MVAIC if you receive a denial from an insured driver’s insurance company. You must file with MVAIC within 180 days of receiving the denial. The extended deadline gives you time to file an appeal with the insurance company before going to the MVAIC.

Filing a liability claim

Filing an insurance claim under the driver’s liability policy is beyond the scope of this site. Such claims include property damages and pain and suffering claims (a civil lawsuit for personal injury that qualifies as “serious”). Some of the links here may be useful nonetheless.

Property damages may be limited by the driver’s policy; car owners in New York are required to carry at least $10,000 in liability insurance. Personal injury damages may be limited by the driver’s policy ($25,000 per person/$50,000 per incident minimum) or personal assets. Generally, but not always, claimants hire an attorney for pain and suffering cases.

Before filing a personal injury lawsuit, think carefully about the toll this can take on your time and emotions. Not all civil suits go to trial; the vast majority settle beforehand. Some cases can drag on for years. Expect the defendants to make the process as difficult as possible.

But if it’s justice that you seek, the effort may be worth it. Since even the most egregious traffic injuries and deaths are almost never criminally prosecuted in this country (most are scarcely even noticed), civil lawsuits are one way to bring this systematic injustice to public attention.

Crashes elsewhere

If you are injured in a crash outside of New York’s borders, the procedures for filing an insurance claim may be significantly different. The subject is beyond the scope of this site.

In the tri-state area, New Jersey and Connecticut do not have a No-Fault system, but what is called a Modified Comparative Negligence system. In brief, this system allows you to sue for damages at a lower threshold than New York State. But your damages will be calculated according to your percentage of liability. If you are deemed to be more than 50% at fault for causing the crash, you may not recover any damages.

A kvetch: No information on No-Fault

In building this Web site in 2011-12, I found no easily accessible public information on No-Fault and MVAIC, nor on how to begin a claim.

In an email, I asked the NY State Dept. of Insurance (now the Dept. of Financial Services) who is responsible for informing car crash victims how to get medical benefits. The answer is: The insurers are—once you ask them. “Insurance companies are required by New York law to send the injured bicyclist or pedestrian an application for No-Fault benefits, as well as a cover letter describing what benefits are available,” the department wrote.

Today, the virtual absence of official guidance persists. The state leaves it up to the crash victim to figure out that the insurance programs exist for their protection, that they are entitled to make a claim, and how to do so within the restrictive deadlines.

In addition, the system preserves a potential detriment for claimants. If you do contact the insurance company about a No-Fault claim, especially without knowing what you’re entitled to and how little information you must give at first, the insurer will record what you say and may even chat you up. Inadvertently, you could make a “statement against interest” that could interfere with a claim for property damage or pain and suffering that you might need to make separate from your No-Fault claim.

On a slightly more positive note, the DFS has now published one clearly written page about filing No-Fault claims — a vast improvement from what went before. Unfortunately, the page is misleadingly located on the DFS site and practically impossible to find, as well as swamped by numerous confusing pages on the site. No-Fault is turning up in more Internet searches, though most leave something to be desired, such as the page explaining how to file for No-Fault arbitration — a process that can be quite unfavorable to the claimant.

Thus, since I have no reason to stop kvetching, I won’t. (See also the Annotated Bibliography under Dept. of Financial Services.)


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