July 21st, 2008

Al Pirro Settles NY Car “Accident” Suit Involving Jeanine For 200K

Al Pirro Jr. last week quietly settled a lawsuit for $200,000 that involved Jeanine Pirro and her failed political campaign for Attorney General. Jeanine — also a former judge, District Attorney, failed Senate candidate against Hillary Clinton and now a talk show host — was in the backseat of her husband’s SUV on October 18, 2006 when it sideswiped a motorcyclist as they approached a light. The collision knocked him down, broke his ankle and sent him skidding along the pavement. The SUV was driven by a campaign staffer just weeks before the election.

The crash out on Long Island raised eyebrows when the police were accused of giving preferential treatment to the Pirros. While the officer on the scene first reported a collision between Pirro’s SUV and Scott Lieberman riding his Harley, that report was subsequently deep-sixed after the officer saw Jeanine Pirro in the back and saw that the SUV was owned by her husband. The second accident report didn’t have the Pirro vehicle in the accident. According to this New York Post story at the time:

Lieberman said that after talking to [Pirro driver] Horgan, cops stopped writing a two-vehicle accident report and started one saying he skidded off the road on his own.
“Investigation reveals no other veh. involved in accident,” the final report reads.

According to an interview I conducted with Lieberman’s counsel, Harlan Wittenstein, a copy of the original police report indicating a collision was given to Lieberman’s ex-girlfriend who had been riding ahead and saw the accident in her rear-view mirror as she pulled up to a stop light. The original report clearly has Al Pirro’s name on it as the vehicle owner. The subsequent police report only claimed a motorcyclist down with no contact and no Pirro name. The two reports are here: Lieberman.pdf

After learning the Pirros were involved, the police accused Lieberman of being a fraud as he was writhing in agony. Lieberman, who was taken to the hospital and needed surgery to fix his broken ankle, didn’t take kindly to the accusation.

After leaving the hospital, an angered Lieberman posted signs at the intersection where the collision occurred, whichwere seen by a pretzel delivery man on his regular route. The pretzel man had been directly behind the vehicles, saw the contact between the Pirro SUV as it changed lanes, contacted Lieberman, and his deposition taken.

The combination of the pretzel man’s testimony and the second copy of the accident report with the Pirro name on it, according to Wittenstein, helped to seal a settlement for a case that had originally been marked “no pay.” The police officer has apparently never been disciplined.

Al Pirro — a disbarred real estate attorney who was convicted of 66 counts of tax fraud, whose license has been suspended (and reinstated), has been embroiled in head-line grabbing extramarital affairs, and generally been a burden to his wife’s ambitions — is no doubt happy to get at least one legal problem behind him.

Photo credit: NY Magazine (story on the troubled marriage)

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More:

What Happens When You’re Run Down by Former DA Pirro? (Greenfield @ Simple Justice)

March 2nd, 2008

New York’s No-Fault Law Problem With "Serious Injuries"

New York has a No Fault law that applies to injuries from car accidents that limits the rights of people to bring suit unless they have a “serious injury.” And my upstate colleague Jim Reed at ZiffLaw described a fundamental problem with that law, via an email exchange with a prospective client: If you are lazy and “milk” the injury, you qualify to bring suit under New York’s statute, but if you struggle back to work, and work despite the pain and limitations you might have, you don’t qualify. The “serious injury” law, in other words, works as an incentive for people to be lazy and complain instead of being as productive as they can.

This problem arises because, under New York’s No-Fault Law, one can only bring a suit after an auto accident if the “serious injury” fits one of these definitions:

A personal injury that results in death;
Dismemberment;
A significant disfigurement;
A fracture;
The loss of a fetus;
Permanent loss of use of a body organ, member, function or system;
Permanent consequential limitation of use of a body organ or member;
Significant limitation of use of a body function or system; or
A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (See, for example, Oberly v. Bangs Ambulance; Insurance Law § 5102 [d]).

This significant restriction on bringing suit was a trade-off for the guaranteed health benefits of the No-Fault Law that started in 1973 and was amended in 1977 to the present formulation. But it also works in the counter-productive manner of encouraging people to stay home and not work. And that makes for bad public policy.

It also means that a fractured pinky that heals in a few weeks would qualify as “serious” under the law, but soft tissue back pain that lasts for years might not, especially if objective results don’t turn up on radiological studies or the physician does a poor job documenting the injury and the specifics of the limitations.

It is this conundrum that brings up the problem with “medical mills” that some folks complain about. In order to document the injury properly, one needs physicians who are familiar with the legal requirements of satisfying a statute that includes a “significant limitation of use of a body function or system.” That may not be the type of language that doctors learn in medical school or the way they were taught to make their medical records, creating a problem and cottage industry of those doctors who will document the way the legislature wants, and who will also find the time to testify in court.

And it brings yet another problem: Treating doctors may need to exaggerate certain claims of the patient to fit into legislatively defined categories in order to keep the tap open from the insurance company that is paying the bills, because the real injuries may not qualify. And the insurance company, by contrast, as an incentive to hire “independent” doctors to check the patient and rig the exams to show no injuries to close down the tap, even if the injuries are real. In fact, this is the subject of two lawsuits that have been brought in New York, that are discussed here:

Now some of these problems will exist anyway, even without the statutory framework. But it seems to me that the statute has exaggerated the problem, and it may be time for New York to revisit the subject to clean things up.

December 26th, 2007

My Car Accident – A Short Postscript

I had an accident on a local parkway on December 7th that I wrote about, after a car stopped suddenly in the left lane, I stopped, and was then rear-ended.

So here is the end of the story: There were no injuries of any kind to anyone that I know of. The little twinge I felt the night of the accident was just that, a little twinge of zero significance.

As to the property damage, my loss was covered 100% by the car that plowed into me. This isn’t always the case, as new blogger Jim Reed discusses today.

Since I occasionally take my shots at various insurance companies on this blog for various acts of malfeasance, then fairness dictates I should also acknowledge a company when it does the right thing. The car that hit me was insured by Liberty Mutual.

December 9th, 2007

A Lawyer’s Car Accident (My Own)

I was in a car accident Friday night. Multiple car collision. On the Hutchinson River Parkway.

For those unfamiliar with the road, the Hutch is a narrow 1940s era parkway running up from the Bronx to Westchester, twisting and turning and rolling over hills. There is no such thing as straight and level. There are no lights on the Westchester portion where my accident happened. And locals often go 70 mph. It’s a major thoroughfare and very dangerous.

Traveling in the left lane I started to close unexpectedly fast on the car in front of me. Unexpected because no brake lights flashed and my speed hadn’t changed. I braked easily at first, then realized the car in front was stopping or had already come to a stop, and braked harder. Calling this a miserable place to stop would be a significant understatement.

I glanced in the rear view mirror and saw others close behind, and getting closer. I eased off the brake so my stop wouldn’t be quite so hard, hoping to give others some extra yardage to work with, and hoping that if any impact occurred it would at least be at a lower speed.

I finally came to a stop — or as lawyers like to redundantly say, I came to a full and complete stop, because full stop and complete stop aren’t verbose enough — and held my breath.

Then I heard a crunch. Thankfully, it wasn’t me that got crunched.

Then there was a second crunch. My car lurched forward. OK, that was me. But I had left enough room, and the impact wasn’t hard enough to propel me into the car that had stopped in front of me.

The first thing out of my mouth was, “Don’t get out!” to my wife. Our kids were thankfully not with us. I hit the hazard lights.

Now what? Dark parkway, cars rapidly bunching up behind us, others maneuvering and passing in the right hand lane, headlights flashing by us. I handed my cell phone to my wife to call 911, though neither of us were quite sure where on the parkway we exactly were. Despite having traveled the road so often, we were oddly disoriented, a result no doubt of the auto pilot mode we each go into when doing something familiar. My wife wasn’t sure what to tell the 911 operator.

I waited about a minute, saw others in the rear view mirror outside their cars, and slipped out by the guardrail separating northbound from southbound to see if anyone was hurt. The folks in the car in front of me yelled that their car broke down. No one reported an injury.

Now comes the lawyer part. One part of my brain immediately thought it was important to note the location of each car and the sequence of events and, at a bare minimum, to get the license plate information. The smarter part told me me that the sequence was utterly meaningless if I got hit by another in the darkness.

The car in front started to get pushed by its occupants across the right lane to the shoulder, and I became aware that at least one of the cars behind me was also now on the shoulder. The first cop arrived and I deeply welcomed all those flashy, flashy lights so that I could do the same with a bit more safety than my predecessors.

But now the car that had died in front of me was gone! Two occupants of a car behind me went running after it as it was pushed to nearby exit ramp with a downward slope, and apparently was driven off.

Discussion with the other drivers led to this reconstruction: Mystery car with several passengers stopped. I stopped. Car following me with four or so 20-somethings stopped. The last car, with a single driver and no passengers, hit both the guy behind me and somehow then me, ending up directly behind me.

And the 20-somethings that went running after the mystery car were steamed! They say the mystery car had no license plates. The also say that mystery car was the reason for the accident. (I didn”t hear them discuss the car that was following too close to stop in time.)

Now having taken a few depositions in car accident cases and tried one or two of these, a few things were immediately obvious. First, accident reconstruction from the standpoint of the driver is very hard. I think of the questions I have asked over the years and understand the difficulty answering them, regarding the who, what, when, where, why and how of the accident and the attempt to obtain hard facts of numerous fluctuating dynamics in the seconds before a crash. How fast? How far? What were other cars doing? What were you doing? Over and over for different periods of time on a dark parkway. And those questions are often asked years after the accident occurred.

After the cops directed us off the parkway at the exit for the sake of safety — all three cars were drivable — they did a bit of reconstruction with interviews.

But I had this twinge in my neck that I hadn’t previously noticed. Was this a real twinge, or an anxiety-ridden figment of my imagination? It was so slight that I might have even had it before the accident but not appreciated it. My fear, of course, was that because many neck injuries aren’t apparent until the next day or two, that something might have happened. I let one of the cops know about my neck as he handed me back my license, registration and insurance card that I had given him, and he told me he would note it on the report.

We went home. I took two ibuprofen, not for actual pain, but as a precaution against some type of soft tissue injury that I might have experienced. I went to sleep wondering what I would feel like in the morning.

The answer, thankfully, was that I felt just fine. I ran for an hour. I went to Costco with my wife, schlepped stuff around the house, and went out to dinner with friends. I felt good today too, and went for another run. I expect that if I have any soreness tomorrow, it will only be from running.

There is a point to this story. When I sat jury duty many years ago, I considered it an invaluable lesson in being a trial lawyer. No lawyer should ever try to avoid jury duty. Sitting in the box was a brand new perspective that is impossible to appreciate from any other spot inside the courtroom well. (See: Personal Injury Lawyer Talks Himself Off Jury Duty)

And I think the same will be true for being in an accident and trying to reconstruct it from the inside. But unlike jury duty, I would do everything possible to avoid it.

March 19th, 2007

New York Car Accident — Can "Blacking Out" Excuse Negligence Per se?

A car crosses a double yellow line and causes a collision. As I noted last week, there is a presumption that the driver that crossed the lines is liable.

But here, a driver claims he “blacked out’ and that the presumption of liability against him is rebutted. Not so, says New York’s Appellate Division, Third Department last week, since the driver must still prove that such event happened:

Initially, we note that unexcused violations of the Vehicle and Traffic Law, such as crossing a double yellow line, constitute negligence per se. However, violations which give rise to negligence per se may be excused if the accident clearly results from an unforeseen and unexpected medical emergency. [Defendant’s] self-serving affidavit in which he asserts a belief that he “blacked out,”unsupported by any corroborating medical evidence, is simply insufficient to create any issue of fact regarding an unforeseeable emergency situation.

Once again a party is defeated by a failure to follow a basic principle of law: That in order to defeat a motion for summary judgment, evidence must be put forward admissible form.