Reporting the Crash

Accident report required to file an insurance claim

 

If you’re a pedestrian or cyclist and are hit by a car, you should always WAIT for the police to arrive at the scene of the accident. Even if it takes 30 minutes, 45 minutes, an hour. Get the car’s license plate number RIGHT AWAY.

Tell the driver to wait. If there has been an injury or death, ALL drivers involved must wait for the police to arrive and write a police accident report; otherwise it’s a hit-and-run violation, a misdemeanor. They must exchange contact information with the officer or with you (driver’s license, registration and insurance papers). A hit-and-run involving a serious injury or fatality is a felony (NYS VAT Title 6 Article 22 § 600).

The officer who arrives at the scene must obtain contact information for the driver, witnesses, and you. (Patrol Guide §217-01, page 13) Still, you should gather witness names and phone numbers yourself if you can, or ask a bystander to do it for you.

The NYPD are not required to write a crash report unless there has been an injury. If your injury is not obvious, you must say “I think I was injured.” (Read more about NYPD and NYS crash reports below. See At the Scene of the Crash for why you might need medical care — even if you think you weren’t hurt.)

In an indisputably minor scrape, if you can’t wait because of family or other emergency, you should still exchange information with the driver and report the crash to the police and/or the DMV, to protect your right to make a medical claim later if needed.

You must report a hit-and-run crash to the police or DMV within 24 hours to be eligible for MVAIC coverage.

Always get an accident report

In New York, there are two types of reports that may be written when an automobile driver crashes.

The NYPD’s Police Accident Report (PAR) is written by a police officer, generally at the scene of a crash, or within five days at the precinct station.

The State Dept. of Motor Vehicles’ MV-104 form is self-reported—by drivers or by crash victims—and submitted to the state DMV within 10 days of the crash.

Each type of report is needed in certain circumstances. Some attorneys regard the PAR as more authoritative in court, so you should always try to get one.

The PAR and MV-104 both have value as statistical evidence, which policymakers are relying on more these days. For advocacy purposes, it may be worthwhile to report the incident even if you don’t intend to file an insurance claim.

The NYPD use an Aided Report to document incidents in which a police officer helps someone who is injured or sick. This type of report should be generated only when the crash does not involve a motor vehicle. If you receive an Aided Report for a motor vehicle crash, you should immediately complain to the precinct that issued it, and re-report the crash.

The Police Accident Report (MV-104AN)

The NYPD must complete a Police Accident Report in any crash causing a personal injury, property damage of more than $1,000, or a fatality.

The NYPD form is called the MV-104AN—not to be confused with the state MV-104. We refer to the NYPD form as the PAR.

If you are in a crash and your injury is not apparent (blood, unconsciousness, etc.), you must say you were injured or the police will not write the report. Sometimes the officer will encourage crash victims to walk away, so you may have to insist that the officer write the PAR.

At the scene, the officer is supposed to give you an accident report number and tell you how to obtain a copy of the report. Instructions are also below.

If you say that you were not injured, but want to report the crash, the police will tell you to complete the state MV-104 report. This is normal procedure.

Giving a statement to the police

BE CAREFUL ABOUT WHAT YOU SAY.

Any admission of guilt (such as “it was my fault,” or “I wasn’t paying attention” or “I could have avoided…”) can be used against you in any future civil claim or action. Such remarks are admissible as evidence in court, where they’re known as “statements against interest.”

Also, you must cooperate with the police. If you fail to do so, or refuse to provide your description of what happened when asked, this could also be used against you. (If you’re injured or in the hospital, in pain, or can’t think straight because you were just given a morphine drip or rectal exam, say so and ask them to return.)

While in pain or in shock, you may feel guilty for what has happened to you, or worried about other people on the scene, including the driver or passengers. But you are not likely to know all the contributing factors, even if you are an expert in accident reconstruction. So keep your statement simple and factual. What color was the light when you entered the intersection?

LESS IS MORE. Stick to the facts of how the crash occurred, without assigning blame to yourself. DO NOT speculate as to the extent of your possible injuries. Keep your statement brief; the officer will write down only a fraction of what you say. But if you say it was your fault, you can be sure he or she will report that.

If the officer at the scene asks the driver what happened, but not you, ask to have your version included on the report. If they won’t take your story, don’t argue. You can go to the precinct house later to request that the report be amended (see below).

Filing a PAR at the station

If an officer isn’t dispatched to your crash scene, or refuses to write a report, and you have an injury to declare, go to the precinct in which the crash happened and ask to file a police report at the precinct station. You must do this within five days.

For a hit-and-run crash, within 24 hours or as soon as reasonably practicable you must do one of the following:

• Report the crash to the police, and have them fill out the PAR.
• Report the crash to the Department of Motor Vehicles, by filling out an MV-104 form and submitting it to the DMV, preferably by certified mail, with a return receipt requested. (Be aware that the DMV form should be used as a last resort, since MVAIC has more leeway to deny coverage than do No-Fault carriers.)

For a hit-and-run reported after 24 hours, you may have to provide a reason or affidavit to MVAIC that explains why you were unable to report the accident within 24 hours. For example, if you were admitted to the hospital for a few days. (See MVAIC)

You must state that you think you are injured to get a police report filled out. Otherwise, the NYPD will not take your report, but will tell you to complete the state MV-104 form. This is standard by-the-book procedure.

In any hit-and-run crash, the NYPD should create a “Criminal Complaint” to start the process of trying to identify the motorist who left the crash scene. You may want to follow up with the investigators to see what progress they are making (and remind them that someone cares about the results of the investigation).

Obtaining the PAR

Get your accident report number from the officer at the scene. You will need it for filling out hospital medical forms and for obtaining a copy of the PAR. As soon as possible, get a copy of the crash report and read it to make sure it is accurate.

To obtain a copy of the report, go to the police station in the precinct where the crash happened, or order it online here. You must provide picture ID and pay a $10 fee. (Money order recommended; no personal checks or cash.)

The NYPD sends its accident reports to the state DMV monthly (e.g., a Jan. 17 crash report is sent to DMV around March 1). You can request a copy from the state here.

Amending the PAR

Any “involved party” may request to have a PAR amended. However, whether to do so or not is entirely up to the reporting officer (Patrol Guide §217-13). Go to the precinct house, speak to the officer of record, and give them your best reasons for changing the report.

If the officer refuses to amend your crash report, you should file the MV-104 as noted below.

If you were injured and can’t deal with a visit to the police precinct, amending the report may not be worth the bother. You might be better off consulting an attorney.

Standard operating procedure

New York Police Department procedures for handling a crash scene are explained in a 2000-page book called the NYPD Patrol Guide.

The Patrol Guide mandates 15 steps for responding to vehicle crashes, including looking for signs of insurance fraud. For example, if the driver is eager to take the blame, or if all passengers in a low-impact crash claim injury, officers must report these signs on the PAR and to the NYPD Intelligence Division.

Low-impact car crashes, however, can have serious medical consequences, especially for struck cyclists and pedestrians, as state, federal, and medical authorities all warn. Yet the Patrol Guide doesn’t mention this fact. So if an officer urges you to brush off your crash or to settle with the driver on the spot, protect yourself. Tell the officer you think you were injured, ask for a police report number, and seek immediate medical care.

The NYPD Highway Patrol Accident Investigation Unit is deployed in cases involving a serious injury or death. These officers document and measure the scene and take formal witness statements, although the statements may or may not be reliable.

If the PAR says you caused the crash

Any conclusions about fault that the officer draws on the police report do NOT affect your entitlement to No-Fault medical benefits.

If you file a liability suit (for property damage or pain and suffering), the insurance company may cite the conclusions of the police officer contained in the PAR as reasons why they will not pay for those damages. However, the police officer’s conclusions that are not based on his or her first-hand knowledge ARE NOT ADMISSIBLE as evidence in court. Generally, only the police officer’s first-hand observations, and admissions against interest of a party, are admissible at trial.

New York State is a “pure comparative fault” state. In insurance terms, this means that if you are found 1% at fault, then you still may be entitled to recover damages, although the total award would be reduced by the percentage of fault apportioned to you.

For this latter reason, you should carefully read your PAR. If it contains errors of fact, you can request it be amended (see above).

The state MV-104 accident report

File your own crash report (MV-104) with the state DMV within 10 days. Doing so puts the crash on the driver’s record and on policymakers’ radar screen.

About two-thirds of NYC crashes published by the state are based on NYPD accident reports. So clearly, the MV-104 helps to fill a gap in crash reporting.

The State and City Departments of Transportation track these statistics to try to prevent future occurrences. Your report might help to save someone else down the road. It can also protect you in case you need to file an insurance claim later.

*Some attorneys believe the PAR has more authority in court than the self-submitted MV-104, and urge victims to wait for the police for that reason.

Coda: The insurance adjuster
and “independent medical examiner”

If an insurance company adjuster shows up at the crash scene or later calls and asks for a statement, you should not give any statement without first consulting an attorney who is experienced in the field of personal injury law. You can simply give the adjuster your name and a phone number, and the time of day you wish to be contacted. Or can say you prefer that they talk to your lawyer.

If you phone the insurance company for information and speak to an agent, keep in mind that your friendly conversation is being recorded.

The Nolo Press guide advises crash victims to set limits on their contact with the driver’s insurer. Once the immediate crisis has passed, the insurer may try to limit or contest your ability to obtain ongoing treatment, rehabilitation, or compensation. They do this through the “independent medical examiner” (IME).

Sometime later—often about a month after the crash—the insurer may request that you visit an IME. This individual is not independent; he is paid by the insurance company. His job is to find reasons to say that you are healed and don’t need further treatment. You are required to visit the IME, but the insurer should make this visit reasonably convenient for you.

The IME’s evaluation is typically cursory and results in the doctor issuing a report that says you are fine and don’t need any further treatment. Based upon that report, the No-Fault insurance company will send you a “denial letter,” effectively terminating all No-Fault benefits from that date forward for that particular specialty (i.e., orthopedic, chiropractic, etc.).

You are entitled to a copy of the evaluator’s report upon which the No-Fault carrier based its denial of benefits, although you may have to request a copy. If you, and more importantly, your doctor, disagrees with the report’s findings, and/or believes that the evaluator failed to review certain records and/or diagnostic tests, you can request that the No-Fault provider reconsider its denial. You would have to submit a written request for reconsideration, spelling out the deficiencies in the report and ideally including references and/or the actual records or reports that the evaluator failed to consider.

If this appeal fails, you can file for arbitration, and have an arbitrator decide whether the denial is proper. WARNING: Having an arbitrator make any determination on your continuing need for treatment could have a devastating impact on any underlying claim for damages that may still be pending. So do this only after consulting with an attorney who practices personal injury law.

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