Legal Arguments to Obtain Insurance Company File – December 2017

In a recent car accident bodily injury case, the owner of the car that hit our client claimed that, at the time of the accident, the driver of her car was using her vehicle without her permission.

Why does it matter?  It matters because her car insurance will only be required to pay our claim if the car was being operated with her permission at the time of the accident.  For that reason, it is essential that we prove “permissive use” of the offending vehicle by the driver who struck our injured client.

Here are the legal arguments made in support of our motion to disclose the other car owner’s conversation with her insurance company.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
——————————————————————————x
MAURA G. DAVIS,
Plaintiff,                                            Index No.: 02888/2012

                        -against-

  DONALD W. WALLACE and DONNA P. WALLACE,
Defendants.
——————————————————————————x

 PLAINTIFF’S MEMORANDUM OF LAW

 IN SUPPORT OF MOTION TO

 COMPEL COMPLIANCE WITH SUBPOENA

MARTIN + COLIN, P.C.

Attorneys for Plaintiff

44 Church Street

White Plains, New York 10601

(914) 771 7711       phone

(914) 206 3619       fax

[email protected]

 

TABLE OF CONTENTS

  

Page

 

PRELIMINARY STATEMENT                                         1

STATEMENT OF FACTS                                            1

ARGUMENT                                                    2

  1. DEFENDANT DONNA WALLACE HAS CHOSEN TO WAIVE

ANY PRIVILEGE THAT MAY EXIST BETWEEN HER

AND PROGRESSIVE INSURANCE COMPANY                        2

  1. DEFENDANT DONNA WALLACE HAS PLACED

PERMISSIVE USE OF THE MOTOR VEHICLE “AT ISSUE”      4

  • DEFENDANT DONNA WALLACE IS ESTOPPED FROM

CLAIMING LACK OF PERMISSIVE USE                         8

  1. DEFENDANT DONNA WALLACE’S CURRENT CONTENTION

THAT HER SON DID NOT HAVE PERMISSION TO USE

HER VEHICLE IS ABSURD                                    9

CONCLUSION                                               14

 

 

PRELIMINARY STATEMENT

Plaintiff moves for disclosure of those portions of the Progressive Insurance Company file concerning permissive use of the vehicle.  Plaintiff’s motion should be granted because:

  • Defendant Donna Wallace consented to the disclosure of her insurance file;
  • Defendant Donna Wallace herself made the insurance company file an issue in this case and in doing so waives any privilege;
  • Defendant Donna Wallace is estopped from asserting any conditional privilege; and
  • Defendant Donna Wallace’s recent claim that her vehicle was operated without her permission or consent is absurd.

STATEMENT OF FACTS

See Affirmation of William Martin dated September 4, 2015, accompanying this motion, for a full recitation of the relevant facts.

ARGUMENT

 

POINT I

DEFENDANT DONNA WALLACE HAS CHOSEN TO WAIVE

ANY PRIVILEGE THAT MAY EXIST BETWEEN HER

AND PROGRESSIVE INSURANCE COMPANY

At the Examination Before Trial of defendant Donna Wallace held on August 7, 2015, Ms. Wallace testified that she had verbally told her insurance company, Progressive Insurance, that her son, defendant Donald Wallace, did not have permission to operate her vehicle, and that she thinks she may have also written it down and provided same to Progressive.  Counsel for plaintiff asked Defendant Donna Wallace if she had any objection to plaintiff’s counsel looking at the Progressive file, to which she had no objection.  (see EBT transcript pages 30, 31 attached hereto as Exhibit “7”).   The relevant portion of the transcript is as follows:

Page 30

Q:  As you sit here today, do you specifically recall telling them that – that your son did not have your permission to operate your vehicle?

A: I’m probably sure, yes.

Q:  And did you ever put that in writing, or was that just verbal?

A:  I think I put it in writing.

Q:  Okay.  Approximately when?

A:  I don’t know.  Could have been months later, once I got paperwork from them.  I don’t remember.

Page 31

Q:  Okay.  Do you have a copy of that writing?

A:  I might.  I don’t know.

Mr. Martin:  Okay.  I would ask you to look for it.  If you have it, I would like to see it.

(Production Request)

Q:  The writing that you gave them, you mailed to them?  That’s how you gave it to Progressive, right; you mailed it?

A:  I might have driven it up to them.

Q:  Okay.  So as you sit here today, you specifically remember verbally telling them, and also you may have written it down and given it to them in writing, as well?

A:  I don’t remember.

Q:  So then you have no objection to me looking at that file, correct?

A:  Correct.

The conditional privilege belongs to Donna Wallace; it does not belong to Progressive.  Thus, with Donna Wallace’s consent to discovery of the Progressive file, the file must be disclosed.

Plaintiff anticipates that Progressive will oppose this motion by arguing that the file is protected by a version of attorney-client privilege, which Plaintiff disputes.  Plaintiff contends that Professor Siegel is correct, that the privilege is not derived from a common law privilege such as the attorney client privilege, but rather is merely protected by CPLR 3101(d)(2) which protects material prepared in anticipation of litigation (see Siegel, New York Practice, §347 [5th Edition]).

In all events, plaintiff concedes that under 3101(d)(2) statements made to one’s automobile insurance carrier have conditional immunity (see Dow v. Vinny’s Diagnostic Service Center, Inc., 2003 WL 1904084 [Sup. Ct., Nassau Cty.], citing Kandel v. Tocher, 22 AD2d 513 [1st Dept. 1965]; Recant v. Harwallace, 222 AD2d 372 [1st Dept. 1995]; Matos v. Akram, 99 AD2d 527 [2d Dept. 1984]).  However, defendant Donna Wallace waived the privilege during her deposition, when she consented to plaintiff’s counsel looking at the file containing the information that plaintiff seeks in the subpoena to Progressive Insurance Company.  It is, after all, Donna Wallace’s privilege, not her insurance company’s privilege.  Her agreement to waive it cannot be objected to or overridden by Progressive.

POINT II

DEFENDANT DONNA WALLACE HAS PLACED

UNAUTHORIZED USE OF HER MOTOR VEHICLE “AT ISSUE”

 

If this Honorable Court somehow rejects plaintiff’s argument that defendant Donna Wallace expressly granted plaintiff access to the Progressive file, plaintiff nonetheless is entitled to disclosure of the relevant portions of the Progressive file because Donna Wallace’s recent claim that she “told” Progessive Insurance that her son did not have her permission to operate her vehicle places the contents of the Progressive file “at issue” and the well settled “at issue” doctrine prohibits the application of the privilege on these facts.

It must be remembered at that the time that the defendants Donna Wallace and Donald Wallace filed their original answer, defendants did not deny that the vehicle was being operated by defendant Donald Wallace with permission and consent of defendant Donna Wallace.  In fact, in the first answer filed in this action, Donna Wallace expressly admitted that Donald Wallace had her permission to drive the car (see original answer, annexed hereto as Exhibit “5”).  Then, two a half years after the date of the accident, and after defendants had filed their original answer which admitted permissive use, defendant Donna Wallace asserted (for the very first time in the legal papers) that her son was operating the vehicle without her permission and consent (see affidavit of Donna Wallace, sworn to on June 18, 2014, annexed hereto as Exhibit “6”).  At her subsequent deposition, she asserted that from the day she reported the accident to Progressive until today, she has always stated that her son was operating her vehicle without her permission.  Therefore, as the defendant Donna Wallace herself is now placing permissive use “at issue” in this case, disclosure trumps the conditional privilege.

As the defendant Donna Wallace has sworn under oath, on two separate occasions, that she has repeatedly informed Progressive that her son did not have her permission to drive her car, the Progressive file is now subject to discovery.  Defendant is the one placing her prior statements to Progressive “at issue”, not plaintiff.  Defendant cannot now use the attorney-client privilege as a sword; only as a shield.  As defendant Donna Wallace is the one claiming that she has always told her insurance company that her son did not have her permission to operate her vehicle, then plaintiff is entitled to disclosure as to whether the Progressive file corroborates her current contentions, or whether the Progressive file contradicts her current contentions.

The principle set forth herein by plaintiff is known as the “at issue” doctrine, and it is well settled.  Under the well settled “at issue” doctrine, privilege is a shield and must not be used as a sword (see American Re-Insurance Co. v. U.S. Fidelity + Guar Co., 40 AD3d 486, 492 [1st Dept. 2007]).  Where a party places the subject matter of a normally privileged communication or document at issue, or, where invasion of the privilege is required to determine the validity of the claim or defense and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege (see Century Indem. Co. v. Brooklyn Union Gas Co., 22 Misc3d 1109(a), 880 NYS2d 222 [Sup. Ct., N.Y. Cty. 2008], citing G.D. Searle + Co. v. Penne + Edmonds L.L.P., 308 AD2d 404 [1st Dept. 2003]; New York TRW Tit. Ins. Inc. v. Wade’s Canadian Inn and Cocktail Lounge, Inc., 225 AD2d 863 [3d Dept 1996]; Bank Brussels Lambert v. Credit Lyonnais (Suisse SA), 210 FRD 506 [SDNY 2002]).

CPLR 3101(d)(2) provides that materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  Plaintiff has met that standard herein.

In a case contemplating facts virtually identical to the facts herein, Judge Palmieri, Nassau Supreme, decided Dow v. Vinny’s Diagnostic Service Center, Inc., __ NYS2d __, 2003 WL 1904084 (N.Y.Sup.), 2003 N.Y. Slip Op. 50664(U).  In Dow, as in the instant action, the issue is whether or not the driver of the vehicle had the owner’s permission to drive it.  Therefore, any communications between owner and insurance company on this issue are extremely relevant to this issue and are impossible to obtain anywhere else.  Thus, plaintiff has met her burden requiring disclosure.

Moreover, both Dow and Professor Siegel declare that it is error for the Supreme Court to exempt documents from disclosure on the grounds of privilege and/or preparation for litigation without first reviewing them in camera (see Siegel, New York Practice, §347 [5th Edition]; see also Dow v. Vinny’s Diagnostic Service Center, Inc., id., citing State of New York v. Sand + Stone Associates, 282 ADd 513 [3d. Dept. 2001]).

POINT III

DEFENDANT DONNA WALLACE IS ESTOPPED FROM

MAINTAINING HER CURRENT CONTENTION

Donna Wallace is Estopped from Claiming Progressive Should Not Pay Out on Plaintiff’s Claim Because She Already Permitted Progressive to Pay Out on Her Claim.

Donna Wallace’s Mercedes was damaged during this accident with the plaintiff.  Donna Wallace permitted Progressive to pay out on her claim to have her own vehicle repaired at Progressive’s expense.  Sometime after that, Donna Wallace announced that her insurance company (Progressive) should not pay out on plaintiff’s claims from this accident because at the time of the accident the driver did not have her permission to operate her vehicle.

It is very sneaky that Donna Wallace waited until after Progressive paid out on her own property damage claim, and only then did she declare that Progressive should not be paying any claims as a result of this accident because the operator of her vehicle did not have her permission.  However, this maneuver is more than just sneaky, it is also prohibited under the equitable principles of estoppel.

Stated differently:  Because Donna Wallace affirmatively submitted her own property damage claim to Progressive for payment, she is now estopped from arguing that Progressive should not pay out on plaintiff’s claim because her driver did not have her permission to use her car.

POINT IV

DEFENDANT DONNA WALLACE’S CURRENT CONTENTION

THAT HER SON DID NOT HAVE PERMISSION TO USE

HER VEHICLE IS RIDICULOUS

Defendant Donna Wallace’s contention that she has always told Progressive that her son did not have her permission to operate the vehicle is ridiculous and without merit for multiple reasons.

Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom.  It appears that Ms. Wallace is now asserting that the police were informed that Donald Wallace was operating the vehicle without her permission or consent, but that they omitted it from any and all records and reports following thereafter.  The police did not forget to ask her.  There was an accident between two cars.  Her son, operating her car, was arrested for driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the second degree, and leaving the scene of the personal injury accident without reporting.  He admitted to driving his car while intoxicated, was convicted of violating VTL 1192.3 and was sentenced to one year in jail.  Thus, his operation of the vehicle caused the accident.

The White Plains Police did a thorough investigation.  They did not just arrest him and charge with DWI.  They did a thorough investigation, lasting over a month.  They took statements from several critical witnesses.  Among others, they took a statement from Donna Wallace.  She told police her son Donald was operating her vehicle.  She did NOT tell police that he was operating her vehicle without her consent.

Further, upon information and belief, the Progressive claims representative did not forget to ask Ms. Wallace if she gave her son permission and consent to operate the vehicle.  Progressive Insurance Company ranks #157 in the Fortune 500 ranking of U.S. companies for 2014.  Upon information and belief, Progressive did not climb to #157 best company in the entire United States by defending car accident cases that it did not have to defend; or by sending lawyers to court appearances in car accident cases without proper investigation.  And it the instant case, Progressive Insurance took fifteen (15) months to investigate.

The Progressive claims lawyers did not draft and file an answer without asking Ms. Wallace if she gave her son permission and consent to operate the vehicle.  Plaintiff submits that no insurance company as successful as Progressive Insurance would get involved in litigation regarding an accident which involves a felony DWI driver who fled the scene without first doing its own investigation into the matter.  After taking fifteen (15) months to investigate the matter and file their answer, defendant’s Verified Answer admitted that defendant Donna P. Wallace’s vehicle was being operated by the defendant Donald W. Wallace with her permission and consent.

It is plaintiff’s contention that Progressive did not rise to #157 biggest company in the country without standard protocols that require employees to contact the insured when a new claim is made; and to record the conversations or to take comprehensive notes while investigating a new claim.  Further, we believe that Progressive must have asked defendant Donna P. Wallace expressly whether or not her son, defendant Donald W. Wallace, had her permission to operate her motor vehicle.  As such, plaintiff is seeking an Order from this Court compelling production of the insurance file.

In addition, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the repairs to her Mercedes.  If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for her car repairs that Progressive should not be paying for her repairs.  More importantly, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the plaintiff’s car repairs (see repair estimate on Progressive letterhead annexed hereto as Exhibit “8”).  If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for plaintiff’s car repairs that Progressive should not be paying for those car repairs.  But she did not.  And the reason that she did not notify Progressive again when she received that car repair paperwork is because her claim that her son did not have her permission to operate her vehicle is a recent fabrication.

Once again, this dispute proves the point that disclosure of the insurance company file is critical to this case.  Where, as here, a party (i.e., Donna Wallace) places the subject matter of a normally privileged communication or document at issue (i.e., the Progressive claim file), or, where invasion of the privilege is required to determine the validity of the claim or defense (i.e., Donna Wallace’s recent claim that she always told Progressive that her son did not have her permission to drive her car), and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege.

conclusion

Based on the forgoing, plaintiff respectfully requests that this Court compel Progressive Insurance Company to produce the records requested pursuant to subpoena; and for any such other and further relief as this Court deems just.

Dated:  White Plains, New York

September 4, 2015

Respectfully submitted,

MARTIN + COLIN, P.C.

Attorneys for Plaintiff Maura Davis

____________________________

WILLIAM MARTIN

Office + Post Office Address:

44 Church Street

White Plains, New York 10601

Motion to Disclose Car Owner’s Conversation With Her Own Insurance Company – November 2017

When the Offending Driver Suddenly Changed Her Story – We Demanded to Review the File

The standard car accident case often involves one or two plaintiffs against one or two defendants.  Frequently, the other car (i.e., the offending vehicle) was owned by one person and driven by a different person.  In this scenario, it is common to start one lawsuit against two people: the driver of the other car and the owner of the other car.  Usually, the other driver denies any wrongdoing, and the owner of the other car also denies any wrongdoing, but acknowledges that the driver of her car operated her car with her permission,

Recently, we had such a case, which progressed along in the courthouse for about six months.  Then, out of the blue, the owner of the other vehicle suddenly asked the Court for permission to change her position in the case.  Suddenly, the other driver claimed that during the car crash, her car had been operated without her permission.  Out of the blue, the other driver suddenly made a motion to the court for official permission to change her posture in the case.  In her supporting affidavit, which she filed in support of her application to the court to change her legal position in the case to claim that the driver of her car did not have her permission, the other driver stated:  “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent.”

What was our response?  We filed a cross-motion demanding that the Court order the other driver’s insurance company to disclose the entire insurance file to us, so we could see for ourselves if and when she made such a statement, as she now claimed.

Here’s the motion:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
—————————————-x
MAURA G. DAVIS,                         AFFIRMATION IN
                                                  SUPPORT OF
                         Plaintiff,          MOTION TO COMPEL
-against-

DONALD W. WALLACE and DONNA P. WALLACE,     Index No. 02888/2012

                         Defendants.
—————————————-x

WILLIAM MARTIN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury:

  1. I am an attorney with the law firm of Martin + Colin, P.C. representing the plaintiff, Maura G. Davis, and as such I am thoroughly familiar with the facts and circumstances herein.

  2. I submit this affirmation in support of Plaintiff’s motion to compel non-party Progressive Insurance Company to turn over: such portions of the relevant claim file for Claim No.: 12-1818654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc.

  3. The subject car accident occurred on April 25, 2012 at the intersection of Aqueduct Road and Russell Street in the City of White Plains, County of Westchester, State of New York.

  4. At the time of the accident, both defendants lived in the same home. Both Donna P. Wallace and Donald W. Wallace gave the same address according to the Police Accident Report. (see MV-104A Police Accident Report annexed hereto as Exhibit “1”).

  5. The MV-104A Police Accident Report’s accident description states that the defendant, Donna P. Wallace, took her son, Donald W. Wallace, to the police station soon after the accident and that she gave a statement to the police. Her statement to the White Plains Police Department was that her son was driving her car.  She did NOT at any time tell the police that her son was driving her car without her permission.

  6. As a result of this accident, Donald Wallace was arrested, charged, convicted and served one year in jail (see Certificate of Conviction annexed hereto as Exhibit “2”).

  7. Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom. The White Plains Police did a thorough investigation.  They did not just arrest him and charge with DWI.  They did a thorough investigation, lasting over a month.  They took statements from several critical witnesses.  Among others, they took a statement from Donna Wallace.  She told police her son Donald was operating her vehicle.  Once again, she did NOT tell police that he was operating her vehicle without her consent (see supporting deposition of Donna Wallace, dated May 1, 2012, annexed hereto as Exhibit “3”).

  8. This action was commenced by the filing of a Summons and Verified Complaint on December 31, 2012 (see Summons and Complaint annexed hereto as Exhibit “4”). That is over three years ago.

  9. Defendant Donna P. Wallace’s insurance company, Progressive Insurance, requested ten (10) adjournments prior to serving their answer. Our office did not receive an answer from the defendants until April 4, 2014.  Thus, Progressive Insurance took approximately fifteen (15) months to investigate this claim prior to filing their answer (see Answer filed April 4, 2014 annexed hereto as Exhibit “5”).  As part of that answer, Progressive attorney Joan A. Ramirez admitted that Donald Wallace operated the vehicle with the owner Donna Wallace’s consent (see that Complaint par. 5 is not expressly denied).

  10. Subsequently, by motion to this Court, Donna Wallace was permitted to change her answer to deny permissive use of her vehicle. In her supporting affidavit, sworn to on June 18, 2014, more than two years after the accident, she stated:  “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent” (see Affidavit of Donna Wallace annexed hereto as Exhibit “6”).

  11. At Examination Before Trial, defendant Donna Wallace herself testified that she contacted Progressive on the day of the accident and told them that her son drove her car without her permission and that he did not have a license or insurance. She further testified that she thinks she put the same in writing to Progressive, and that she has no objection to Plaintiff looking at that file.  (see EBT Transcript pages 29-31 annexed hereto as Exhibit “7”).

  12. Thus, as testified by Donna Wallace herself, there must be entries, notes and possibly documents in the Progressive claim file to that effect that Donna did not give her son consent to operate her vehicle on the date of the accident. That was Donna Wallace’s testimony.

  13. As the contents of the Progressive claim file has been placed into issue by defendant Donna Wallace herself, Progressive cannot assert a claim of privilege as a sword to cover up Donna Wallace’s prior statements. If, in fact, defendant Donna Wallace has recently changed her story, she cannot now use the privilege as a basis to deny plaintiff access to her prior statements; those prior statements to her insurance company are important evidence in the search for the truth.  Plaintiff cannot obtain the Progressive Insurance File by any other means, as only Progressive Insurance has the only copy of the file.

  14. Several months ago, this Honorable Court issued a “so ordered” subpoena on Progressive Insurance to produce its file (annexed hereto as Exhibit “9”). Progressive refuses to do so.

  15. For the many reasons set forth above, and based on the legal arguments set forth in the accompanying Memorandum of Law, it is respectfully requested that this Honorable Court grant this motion in its entirety.

WHEREFORE, it is respectfully requested that the plaintiff’s application be granted in its entirety, and that this Court grant plaintiff’s motion to compel non-party Progressive Insurance Company to turn over immediately to plaintiff such portions of the relevant claim file for Claim No.: 11-2727654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc., and that this Court grant such other and further relief as to this Court seems just and proper.

Dated: White Plains, New York
September 4, 2015

__________________________________
WILLIAM MARTIN

Well, there you have it.  That was the sworn statement in support of our motion for disclosure of the relevant portions of the insurance company file.  We hope you find it helpful.

If you or a member of your family has been hurt in an accident due to the negligence of another person, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.

CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.

How Much Is Your Injury Case Worth? – November 2017

A Recent Client Placed a Settlement Value on Her Own Case
You do not want the money.  We understand.  What you really want is your life back.  Pain free.  The way it used to be.  Just like it was before the accident.

If you have a claim for money damages to compensate you for your pain and suffering, there will come a time when a monetary value needs to be placed on your injuries.  How much are your injuries worth?  It depends on the nature and extent of your injuries, and how much they affect your daily life.

Recently, one of our clients wrote up her own damages memo.  Here is her explanation of the monetary value of her injuries:

Since April 4, 2013, I have suffered from daily pain and a lot of discomfort due to low back pain and sural nerve damage in my left heel and left Achilles tendon.  This injury has not allowed me to enjoy my life as I feel sad and depressed, and incomplete, to know I must live with a chronic pain condition.  I cry a lot because of the stress built up from pushing myself through the pain, throughout the day, and enduring it. The constant pain drains me physically and mentally.  Months after the injury to my left heel, my Achilles tendon continues to feel stiff, and numb.  These symptoms worsened as time passed resulting in more inflammation of left ankle, tendon, calf, severe numbness and pain as every movement of my leg causes pain to my sural nerve.

By 2015 the constant low back pain had caused a change in my posture and caused a foot drop.  I had no choice but to continue physical therapy to temporarily alleviate the pain and the numbness.  I had tried physical therapy since 2014 which clearly shows that the damage to the left sural nerve located near my left heel was permanent.  I have suffered from chronic pain since my accident; I am unable to work.  Work requires me to stand and sit for long periods of time in an office, which can aggravate the pain.  The pain has been so severe most of the time, that I must lay down on my right side for hours for it to diminish.  And if I experience this while at work, I will be in a lot of pain and discomfort making it extremely difficult to function.

I must continue going to physical therapy for years until my nerves, heel, and lower back have healed enough to resume consistent fulltime employment.  I will also have to pay for my future medical bills, out of my own pocket, and each visit averages $75.  In addition, I will have future emotional, and physical pain as it takes a long time for nerves to recuperate if they completely heal. I will not be able to resume my habit of jogging, will not be able to wear heels at work or social occasions, have difficulty sleeping face down, on left side, on back, and must limit my overall activity as standing and sitting for long periods of time aggravates my condition. Because of these limitations, my anxiety and depression has been aggravated.

This injury has changed my overall quality of life, as it has diminished my activity level, ability to function, changed me as an individual, and decreased my enjoyment of life.  Based on these factors, and taking all the details into consideration, I believe a fair compensation for my permanent left heel injury, past, present, future pain and suffering and future medical treatment is $105,000.

Compensation Breakdown
  • Pain and suffering – $45,000

Aggravated Anxiety and Depression due to chronic physical pain:

Unable to jog every day, unable to wear heels, unable to stand or sit for long periods of time, unable to lose weight, loss of social life, unable to sleep face down, on back, left side, diminished confidence, appearance and decreased enjoyment of life.

  • Future lost wages: $30,000

I can only work part time, less than 30 hours, as I must go to physical therapy twice a week, and I am still in a delicate state of health.

  • Future medical treatment and equipment: $30,000

Settling this case will cause me to lose my current medical coverage and I must pay cash for future physical therapy visits, medicine, equipment, and other visits related to my injury.

Example of equipment:  I have to buy ankle braces (these should be replaced yearly as they easily wear out).  I have to buy a new TENS unit and constantly replace batteries every month or so.  I have to buy a back brace, to better my posture.  I have to buy orthopedics for better heel support, and replace as needed for the next ten years.  I have to buy pillows to assist me while I am asleep as I cannot sleep on my left side or on my back consistently without support.

For all these reasons, and taking all the details into consideration, I believe a fair compensation for my permanent left heel injury, past, present, future pain and suffering and future medical treatment is $105,000.

Well, there you have it.  That was a damages analysis prepared by the client herself.  We hope you find it helpful.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.
Call us now at (914) 771 7711 and let us apply our expertise to your case.

Settlement for Victim of Hit + Run Driver in White Plains – October 2017

Martin + Colin, P.C. announced that a $550,000 settlement has been paid to the victim of a hit and run car accident by a drunk driver in White Plains, New York.  Our client, who had been trying to park her car on Aqueduct Road, in White Plains, was hit on the driver’s side by a vehicle driven by a drunk driver.  The drunk driver then jumped out of his vehicle and attempted to flee.  However, nearby Good Samaritans pursued the driver on foot and remained until police arrived.

After the case had been pending for several months, the owner of the offending vehicle suddenly declared that she had never given the drunk driver permission to use her car when the accident happened, and therefore she did not have to pay our client, the victim, money damages for her injuries.  We needed to prove that this new claim, i.e., that the owner did not give the drunk driver permission to driver her car, was false. Otherwise, we would recover no money for our injured client.  Several court battles ensued.

We were able to obtain the following evidence:

  •      the drunk driver lived in the same home as the owner of the offending vehicle;
  •      the drunk driver had easy access to the keys; and
  •      the owner watched the drunk driver leave the house with her car keys, she watched the drunk driver drive out of the driveway with her car, and she never called police.

After several very contentious court fights, we prevailed: the insurance company abandoned the car owner’s claim that the drunk driver did not have her permission to drive the car.  The insurance company then paid a large settlement to our client.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.  

Call us now at (914) 771 7711 and let us apply our expertise to your case.

 

Maintaining a Pain and Suffering Journal – July 2017

Keeping Track of Your Pain and Suffering

How Much Are Your Injuries Worth?  Suppose you have been physically injured by another person.  And suppose you can assert a claim for money damages from that person to compensate you for that suffering.  How much are your injuries worth?  It depends on the nature and extent of your injuries, and how much they affect your daily life.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.  
Call us now at (914) 771 7711 and let us apply our expertise to your case.

Recently, one of our clients decided to keep a written log, or journal, of her pain and suffering, and how much it affected her daily life.

This client had a lower calf / left ankle injury.

Her story:  she was working at a restaurant on North Avenue in New Rochelle, New York.  On her break, she walked down North Avenue around midday.  Wanting to check her phone, she stopped walking and stepped inside a storefront vestibule.  The store had gone out of business and all front windows were covered in an opaque brown paper.  As she checked her phone, someone suddenly and unexpectedly stepped out from within the closed storefront, swung open the door, and jammed the bottom edge of the door into our client’s left lower calf, causing a deep laceration to her leg.

Her task:  our client very wisely kept a log, or a journal, of her pain and suffering.  This log helped her understand the full extent of the ways in which her injury changed her life.  It would also help her testify, at her deposition or trial, about the many ways in which the accident changed her life.

Here is a sample taken directly from her pain & suffering journal.  We hope you find it helpful.

Excerpt From a Client’s Pain + Suffering Log / Journal

5/7/15

Numbness:

Foot

Achilles tendon

Pain:
Left lower back
Left buttock
Left hip
Left heel

Weakness:
Left Foot
Left Leg
Left Hip
Left lower Back

Treatment:
2 Naprosyn (little effect)
Soaked foot in hot water w salt
Heated pack or pad for left lower back
Tens unit applied to left lower back, left buttock, left back of leg all the way down to left Achilles tendon and heel.

5/9/15

Numbness and pain:
Left foot, left leg, left lower back, left hip

Treatment:

Tried stretching
Naprosyn (a non-steroidal, anti-inflammatory drug)

6/14/15

Numbness & achy pain of left lower back
left hip
left leg
left foot

going to physical therapy
sonogram of left foot and right foot and Achilles tendon of both done

6/15/15

Feeling better after physical therapy
Went to the park and library so my foot was tired and was stiff when I got home.

6/16/15

Physical therapy

Mild numbness and pain of left foot left leg left lower back left hip

Medication: Naprosyn (NSAID)

6/17/15

Numbness and pain:

Left lower back and left glute

Left hip left waistline (seems to be spreading)

Left foot left leg

Treatment:

Applied Bengay on all these areas (i.e., an analgesic heat rub)

Stretched morning afternoon an evening and still feel symptoms

Decided to skip a day of Naprosyn as my stomach has been delicate

Planned to work out before bed but I can’t due to the pain

6/18/15

Mild numbness & pain:

Left foot

Left leg

Left glute

Left lower back

Left hip

Treatment:

Stretched

Took Naprosyn

Dug my left foot in sand (which made the symptoms decrease)

6/19/15

Numbness, pain, and soreness in: left foot left leg left hip left lower back

I stretched and took Naprosyn

6/20/15

Numbness and pain

6/25/15

Mild numbness and pain in left lower back, left hip, left foot, and left calf

I took Naprosyn and analgesic heat ointment at Bedtime

6/26/15

Numbness and pain:

Left lower back

Left hip

Left leg

Left glute

Left ankle

Left foot

Treatment:

Bengay in the morning & Naprosyn after breakfast

7/15/15

Numbness and pain in left foot, left leg, left hip, and left lower back

Took 2 Naprosyn

Feel tired, out of breath, irritated, and depressed

7/16/15

Numbness & pain from 1-10:  (10)

Was ready to go do laundry but I couldn’t bear being on my feet so I took two Naprosyn and laid down

Couldn’t do my laundry because of the pain

7/18/15

Numbness and aching pain in:

Left lower back

Left hip

Left buttock

Left leg

Left foot

Left thigh

Treatment:

I took Naprosyn

7/23/15

Today, I took 2 Naprosyn after breakfast as I wanted to take daughter out to the library and to the park.

The pills helped relieve left lower neck and left buttock pain a little but all the other symptoms stayed so I had to stay home and lay down.

While cooking lunch, I was still in pain and feeling depressed, irritated, and alone because my mood changed and I feel tired. It’s as if the pain is draining all the energy out of me.  I just want to lay down.

My daughter is my motivation to keep going and I gave her blocks and toys to occupy her while cooking.

I’m not sure how I am able to make it through the day as this pain is still in my body and I have been laying down since 9 pm.

I applied Bengay on all the areas where I feel pain (my left foot, my left leg, my left lower back, and my left thigh).

I haven’t been able to exercise at home for months. Every night I’m in pain before going to sleep due to standing in the kitchen while making dinner and any standing or walking throughout the day

Numbness and pain in:

left lower back

Left buttock

Left hip

Left thigh

Left calf

Left ankle

Left foot

 

7/24/15

Numbness and pain:

Left foot

Left leg

Left lower back

Left buttock

Scale of pain 1-10:  6 (better than yesterday)

The pain increases while I’m standing in the kitchen to make dinner

I feel sad to face another day of pain & discomfort. I just wish one day this can all go away

I feel a lot of anxiety, like butterflies in my stomach and pressure on my chest. I can feel my heart beating fast.

7/27/15

The pain isn’t achy to the point where I must be in bed laying down so it goes away.  It is more like a soreness type so I decided I can still take my daughter to the library and park.  She asked me to go out; she enjoys being outside.

After coming back from the library and park, my foot is stiff, I’m tired overall, and ready to lay down. I took a break and started cooking dinner.  My daughter bathed quickly and we ate dinner together.  I cleaned the floor and at this point, I’m exhausted as I’m now feeling aching pain on the left side of my body and foot.  I’m using my right side to balance my body and carry my left side because I feel a lot of numbness at this point.  My main goal is to lay down with my daughter and apply Bengay on my left lower back, left hip, left foot, left thigh, and left buttock.

Scale of pain:1-10:  (8)

It’s very hard to fall asleep while I’m in such pain so I stretch for a while to help my circulation and relieve the areas in pain.

Numbness and pain:

Left leg

Left foot

Left lower back

Left hip

Left buttock

Scale of pain 1-10:  (6)

Treatment:

I took 2 Naprosyn and they surprisingly didn’t take away all the pain

7/28/15

Today I woke up feeling better. I do feel soreness on my left side of my body but no pain this morning as I slept a lot of hours last night so my body could feel well rested.

I will be going to physical therapy as I still feel knots on my left buttock and soreness around my lower back and left lower hip

After eating lunch, my foot is very numb from standing to cook in the kitchen.  I can feel the numbness slowly spreading up towards my left hip and left buttock.

I treat the numbness with hot water. I fill a bucket of water and then take out my TENS unit so I can apply it to my foot after I soaked it in the hot water.

When I soak my left foot and part of calf in the hot water I feel immediate relief.  I start breathing slower, my heart stops racing, I feel less anxiety, there’s pressure off my chest, and I feel calmer and less stressed overall.

After soaking my foot and calf for 10 minutes, I apply the TENS unit on the area that’s discolored (where I was cut by the door).  I also apply the TENS unit on the bottom area of foot as it’s completely numb and very uncomfortable to walk on.

I will be going to physical therapy for my left lower back, left buttock, and left hip area.

Physical therapy reduced the pain on the left side but I felt weakness in the area.

7/29/15

I woke up with weakness in same area.  After standing in the kitchen to cook breakfast, the symptoms increased.

Numbness & pain:

Left foot

Left leg

Left lower back

Left glute

Left hip

Treatment:

I will take Naprosyn and stretch

Depending on the effect of Naprosyn, I will try soaking my foot

I played with my daughter for 30 minutes after breakfast.  We sang Wheels on the Bus and Old McDonald Had a Farm, acting out the song with toys and animals.  It tired me out so I’m lying on my right side now.  I put on nursery songs and she is still playing with her farm toys and tractor.

I am upset because I want to play with her more and be more involved but I’m in pain and the more I stand or sit, the more the symptoms increase.
I’d rather conserve my energy for lunch time and I must cook very soon because she naps at 2:00 p.m.  It’s only 11 a.m.

7/30/15

I am feeling better

I only felt numbness and stiffness throughout day, rarely any pain.

I felt pain while lying face down for bedtime

Treatment: I applied Bengay to my left lower back, left glute, left hip, left leg, and left foot.

7/31/15

I am feeling better today. There is some stiffness in my left foot, left leg, left glute, and left lower back.

Before bed, I applied Bengay around my left lower back because I felt some pain.

8/1/15

I woke up feeling tired

Numbness & pain in: left foot, left leg, and left lower back

Scale of pain 1-10:  (5)

I took 2 Naprosyn after breakfast because I planned to do laundry and go food shopping and need to be able to push laundry a couple blocks.

I am still in pain after the pills, but I must do laundry as my daughter and I have run out of clean clothes.

After I got back from doing laundry, my daughter was asleep in her stroller so I took a break because I was exhausted.

My left lower neck is hurting and I feel like my left glute is ripping from the inside and nerves are tingling.

I have to go to the grocery store because there is very little food in the fridge and the food market across the street is very expensive.  I’m very tired so I’ll wait a couple hours to rest before getting back on my feet.

After getting back from the grocery store, I am in a lot of pain. There is stiffness and numbness in my left foot, left leg, left lower back, and left glute from all of the pushing, lifting, carrying, sitting, standing, and walking I had to do.  These are all essential to our wellbeing and unfortunately, I must do all these tasks in pain which makes me overly exhausted, anxious and depressed by the end of the day.  I feel like I’ve run a marathon.

8/2/15

I woke up very tired.

Numbness & pain in: left foot, left leg, left hip, left glute, and left lower back

Scale of pain 1-10:  (8)

Left rib is sore.  Pain scale:  (5)

The numbness and pain is spreading

Treatment:

I took Naprosyn after breakfast

Stretched my left leg

Applied Bengay on areas

Applied heat on left lower back, left glute, left hip, and left rib.

Applied tens unit to these areas as well

I have a few loads of clothes to fold but I am in too much pain to sit or stand to fold and put them away.

8/7/15

Numbness with very little pain

There is a soreness & weakness in my left lower back, left hip, left glute, and left foot.

I stretched before exercising. I then ran around the track 3 times with breaks in between because my leg felt numb, stiff, and tired

After my workout, I stretched

At bedtime, I was in a lot of pain from the workout

I can’t sleep on my left side because it hurts too much

I currently feel numbness and pain in my left foot, left leg, left hip, left lower back, and left rib area.

The numbness has spread to my rib and upper back

I must set a doctor’s appt again with a new physician because this problem is getting worse.

I’m frustrated because I can’t enjoy my life.  I try to achieve personal goals like a certain weight, but I can’t because I can’t work out regularly without being in a lot of pain.  I am also unable to care for my daughter the way I want which is very sad and depressing as I feel limited.

8/13/15

Severe numbness and pain in my left foot, left lower back, left leg, left hip, and left glute.

Woke up feeling tired and in pain.  I have a headache and feel stressed.

I made breakfast and played with my daughter for 15 minutes and I swept the floor. I couldn’t mop because I was in a lot of pain and couldn’t stand on my feet any longer.

I must go to the supermarket 3 miles away to buy groceries, but I can’t as of now because I’m in a lot of pain. If I walk in this condition the pain is only going to get worse.

My daughter is asking me to play.  Although I’m still in pain, I am going to play but I am not enjoying it which depresses me.

Treatment:

Naprosyn

Stretches

Ice pack

Laying down on my right side with pillows on my left side.

This ends the excerpt from a recent client’s Pain and Suffering Journal.

If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.  
Call us now at (914) 771 7711 and let us apply our expertise to your case.

Settlement for Driver in Out-of-State Car Accident – June 2017

Woman_Sitting_Beside_CarMartin + Colin, P.C. announced today a settlement for a driver who suffered personal injuries during a car crash in the State of Missouri.  The out-of-state car accident victim, a Washington Heights (Manhattan) resident, was the driver of a rented automobile.  The injured New Yorker called us to discuss his claim, and whether he should hire an attorney from New York for an out-of-state car accident claim.  After our discussion, our client chose our firm to represent him in his car accident case.  We immediately set out to protect our injured client’s rights and obtain for him the financial compensation he deserved.  Today, we are pleased to report that, within one year of the accident, we were able to secure the other vehicle’s entire insurance policy as a settlement for our client.

CAR ACCIDENT FACTS

One early morning in 2016, our client drove through Ferguson, Missouri to return his rented car to the local office of a national car rental corporation, and then catch a ride to the airport to come back home to New York City.  Our client waited in the left hand lane, with his blinker on, waiting to turn left into the car rental return location.  Suddenly and unexpectedly, another vehicle slammed into our client’s vehicle, completely destroying the rental vehicle and causing serious physical injuries to our client.

PHYSICAL INJURY AND MEDICAL TREATMENT FACTS

Car Accident with Soft Tissue InjuryOur injured client went directly from the accident scene to St. Louis (Mo.) Medical Center by ambulance.  His chief complaints at the hospital were pain in his head and back, and cuts to his face.  An x-ray was performed at hospital, which showed no significant abnormalities.  Our client was kept in the hospital overnight.  Our injured client was discharged with instruction to follow up with an orthopedist if his pain did not improve or if he experienced an increase in symptoms.

ORTHOPEDIC FACTS

As our injured client experienced persistent pain, he consulted with an orthopedist and a pain management specialist.  He also received physical therapy. His complaints included:  1) aching, decreased range of motion, pain, spasms, and weakness of the lower back; and 2) severe headaches.

The orthopedic surgeon diagnosed lumbar strain, recommended modification of activities, heat treatment for the back, and an MRI of the lower spine region.

MRI IMAGING FACTS

Traumatic Brain InjuryOur injured client had an MRI and went for a follow up visit with the orthopedist to discuss the results.  The MRI revealed a herniated disc.

PHYSICAL RECOVERY FACTS

Our injured client followed up with the orthopedist and continued physical therapy.  Although his face and head injuries received during the car crash went away, the client continued to complain of pain to his back.

DAMAGES SUMMARY

Our client was transported to the hospital by ambulance from the scene of the accident.  In addition, he continued to treat for severe pain in his back.  Our client never fully recovered from the accident.  However, the only asset the other driver owned was a minimal liability insurance policy.

SETTLEMENT

Based on the above, it was our position that our injured out-of-state car accident client was entitled to substantial money damages for his pain and suffering, which continue to the present day.  The other driver only had a minimum insurance policy.  Our injured client desired a fast settlement of the claim.  He instructed the injury lawyers at Martin + Colin, P.C. to obtain the best result possible very quickly.  In this situation, the best possible result was the entire policy.  Within three months of the accident, we were able to settle the case to the satisfaction of the client.

 

CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.