Insurance for Pedestrians & Cyclists in Car Crashes
[M]otorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them.
—NYS Vehicle and Traffic Law Article 6 §310 (2) (link)
Pedestrians and bicyclists are
entitled to medical benefits
If struck by a vehicle in New York State, you are entitled to medical benefits regardless of who caused the crash or their state of residence.
For crashes involving an insured driver, medical benefits are provided through the No-Fault Law (NYIL §5101). http://www.dfs.ny.gov/insurance/r68/r68_art51.htm#5101
For hit-and-run and uninsured motorist crashes, victims may apply for benefits under the Motor Vehicle Accident Indemnification Act (NYIL §5102). http://www.dfs.ny.gov/insurance/r68/r68_art52.htm
These laws are there to help you, but they are hiding in plain sight. To date, no state or city agency has published comprehensive guidance on how to navigate the system. So read up.
The outline below attempts a basic understanding of the laws in force as of September 2011 and updated April 2013, based on state-sponsored and other Web sites and interviews by the author.
See also How to File an Insurance Claim.
Driver’s insurance covers
pedestrians and bicyclists
Automobiles registered in New York State must carry a minimum of insurance: $25,000 for bodily injury per person; $50,000 in bodily injury per incident; and $10,000 property damage. (NYS VAT Article 7 §345(b) ; NYIL Article 51) Required insurance minimums are outlined here.
Even if a car is registered out of state, the driver’s insurer must offer New York’s minimum coverage if they are in a crash here. (NYIL §5107)
Pedestrians and cyclists are entitled to medical coverage in New York. Don’t be confused by the state insurance department or insurance company Web sites, which mention peds only infrequently and omit cyclists altogether.
The New York auto policy includes three types of coverage discussed below: No-Fault, liability, and UM/SUM.
MVAIC (for hit-and-run and uninsured crashes) is covered in the last section of this page.
No-Fault medical benefits: for (almost) everyone
If you are struck in New York by a driver who is insured, and who stays on the scene, this is the part of their policy that will pay your medical expenses.
The car owner’s No-Fault insurance coverage pays bodily injury claims made by
- The driver and passengers
- Pedestrians who are struck by the driver
- Cyclists struck by the driver. (The law mentions “pedestrians” specifically, but includes cyclists as well, as was confirmed by the state insurance department in a September 2011 email.)
These claims are paid regardless of who was at fault in the crash or either party’s state of residence, or degree of injury, under NYIL §5101.
Expenses covered include medical services, up to $2,000 per month in lost wages and modest other assistance. NYIL §5102(a)(1)
Injured pedestrians and cyclists are entitled to “first-party” benefits—they have the same contractual right to coverage as the driver. This obscure-sounding point is significant: You are just as entitled to medical coverage as the person who pays for the policy. (In insurance lingo, the insured customer is known as the “first party”; the insurance company is the “second party,” and anyone hurt in the crash is the “third party.”) (NYIL §5103) This doesn’t guarantee, however, that your relationship with the insurer will be warm or free of adversity.
A bit of background: In the industry’s view, the No-Fault system benefits consumers by taking lower-value claims out of the courts. It supposedly does this by setting a threshold for litigation; in New York, an injury must be “serious” in order to be tried in court for pain and suffering. By reducing the number of lawsuits, this set-up is supposed to lower the cost of auto insurance overall.
Liability insurance for serious injury, property damage
If you suffer property damage or a serious injury due to a crash, this is the part of the car owner’s policy against which you’ll make a claim or file a lawsuit.
Liability coverage pays for “noneconomic” and property damage caused by the driver. Degree of fault may be an issue in determining liability damages.
To sue for damages not covered by No-Fault insurance (typically referred to as noneconomic, or pain and suffering, damages), an accident victim must have sustained a “serious injury” as defined by the statute (NYIL §5102(d)). There are nine categories injuries that qualify as “serious.” Some are more objective in definition, while others are more subjective, if not convoluted, and open to extensive interpretation by the courts. (See also the New York Bar Association’s information sheet on qualifiers and other factors.)
The driver’s insurer will either pay the claim or provide legal defense against it. This is the insurer’s “duty to defend and indemnify” the policyholder. They are obligated to pay only up to the insurance coverage limits of the policy. (The exception is if they act in bad faith and a verdict in excess of the policy limits is achieved. In that case, there is the potential to pursue the carrier for damages beyond the policy limits—but don’t count on it.)
Practically speaking, the vast majority of cases ultimately settle within the insured’s policy limits. The insured may carry what’s called excess insurance or an umbrella policy for damages beyond the underlying policy limits.
Uninsured or Underinsured Supplemental Motorist coverage (UM/SUM)
Supplemental Uninsured or Underinsured Motorist coverage (UM/SUM) provides a possible source of recovery if a person has his or her own auto insurance or non-auto-owner insurance policy with UM/SUM limits beyond the tort feasor’s policy limits. It also applies when the insured person is involved in a crash with a hit-and-run or uninsured motor vehicle.
Insurer of last resort: MVAIC
for hit-and-run & uninsured crash victims
Pedestrians and cyclists who are struck by uninsured or hit-and-run drivers, and who lack auto insurance policies of their own or of related household members, may apply for coverage from the NYS Motor Vehicle Accident Indemnification Corporation (MVAIC). (Note: Private health insurers are not obligated to pay medical expenses incurred in a vehicle crash.)
Injured persons whose claims are rejected by the driver’s No-Fault insurer may also apply to MVAIC for benefits.
Strict requirements apply, such as reporting a hit-and-run crash to the police within 24 hours.
The MVAIC (pronounced “EM-vayk”)—the insurer of last resort—is a nonprofit corporation mandated by the state of New York and funded by insurance companies doing business here. (NYIL Article 52)
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