Category Archives: Accidents

Is a Bar Responsible for Injuries Caused by a Motorcycle Parked on the Bar’s Sidewalk?

Jerad M. Zarnoch sustained very serious injuries when he was struck by a motorcycle which had been parked on the sidewalk in front of The Varick Bar and Grill. Mr. Zarnoch was standing on the sidewalk when Jeffrey J. Williams got on his motorcycle and seconds later Mr. Zarnoch was pinned against the building.

Mr. Zarnoch sued Mr. Williams but (looking for additional insurance coverage) also sued The Varick Bar and Grill alleging that because of the special use doctrine, the bar should be responsible for his injuries. The special use doctrine is a legal principle that transfers the duty to keep public sidewalks in a reasonably safe condition from the municipality to the landowner when permission has been given, by a municipal authority, to the landowner to interfere with a street solely for private use in a way that is not connected with the public use.

If The Varick Bar and Grill had a permit from the municipality allowing it to use the sidewalk for parking motorcycles, the bar would become responsible for maintaining the sidewalk in a reasonably safe condition. However, The Varick Bar and Grill did not have authority from the municipality to use the sidewalk for its own private parking lot.

The Supreme Court of the State of New York agreed that the bar owed a duty to Mr. Zarnoch to keep the “sidewalk motorcycle parking lot” safe and a jury awarded Mr. Zarnoch a substantial amount of money. The bar appealed and The Appellate Division reversed the trial court, setting aside the verdict against the defendants and dismissing the complaint.

The Appellate Division ruled that the special use doctrine does not apply because there was no defective condition in the sidewalk which caused the accident and the bar did not have a permit or authority to utilize the sidewalk as a motorcycle parking lot.

Without the municipal authority to use the sidewalk for parking motorcycles, The Appellate Division said that the bar “had no duty to maintain, repair, supervise or control the sidewalk with respect to vehicles parked on it. Plaintiff’s (Mr. Zarnoch) position on the sidewalk ‘was no different from that of any other passerby’ using the public sidewalk.”

Thus, if The Varick Bar and Grill had a permit allowing motorcycles to be parked on the sidewalk, it would have been liable to maintain the sidewalk in a reasonably safe condition. However, even if they had a permit they would not have been liable because The Appellate Division found that there was no sidewalk defect that caused the injuries.

Motorcycle accident? Get the HURT911® Personal Injury Dream Teamon your side! 
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How Often Do People Win Their Motorcycle Case against Insurance Companies?

I was asked “How often do people actually win their motorcycle accident case against insurance companies” and “How often do people get good settlement money from insurance companies, is it even worth it?”

Many lawyers don’t want to take motorcycle accident cases because juries are often not sympathetic to motorcyclists. We understand how to change that attitude. Fortunately, we have not lost a motorcycle accident case yet.

It’s usually easy to prove the driver of the other vehicle was responsible for causing your motorcycle accident, even if the motorcyclist was drunk!

According to the U.S. Department of Justice, Bureau of Justice Statistics study during a 12 month period ending June 30, 1992, 33% of cases decided by juries were automobile accident suits (the study does not mention motorcycle accidents).

In half of all jury cases, the jury found in favor of the plaintiff during the 12-month period. The median total award for a plaintiff was $52,000 (this figure is high because it includes non-tort or accident cases). Punitive damages were awarded in 6% of the jury cases where the plaintiff won. The median punitive award was $50,000. The average time from filing the complaint (start of the lawsuit) to the jury verdict was 2.5 years.

From 1992 to 2005, the total number of civil tort (accident) trials declined by 40% in the nation’s 75 most populous counties which would include all the counties in the New York Metropolitan area.

In 2005, a jury found in favor of the plaintiff in 54% of state court jury trials. The plaintiff was significantly more likely to win in a bench trial (a trial decided by a judge instead of a jury) compared to a jury trial, yet 90% of tort cases were jury trials.

The median final award for all tort plaintiff winners was $24,000. In 6.3% of jury trials, the plaintiff winner was awarded $1 million or more in compensatory and punitive damages.

The statistics involving New York motorcycle accident cases would be significantly different as compared to car accidents. Motorcycle accidents, particularly those involving Harleys and cruising motorcycles usually involve very good liability against the car which struck the motorcycle. Bikers on cruising motorcycles are usually careful drivers who are not speeding and careful to avoid accidents.

Many police accident reports show that the driver of the car which struck the motorcycle admitted liability in motorcycle accidents, possibly because of the shock of seeing the significant injuries caused. This will result in a significantly higher number of winning cases for motorcycle accidents as compared to car accidents.

Motorcycle accidents typically involve extremely serious injuries rarely seen in car accidents. Injuries caused by motorcycle accidents are frequently worth hundreds of thousands of dollars to millions. This will result in a significantly higher average award for motorcycle accident victims.

Motorcycle accident? Get the HURT911® Personal Injury Dream Teamon your side! 
Call right now, days/nights/weekends for a free consultation with no obligation!
1-800-HURT-911 | 1-800-487-8911

Can I get money for injuries if I was driving without a motorcycle license? Part 1

I received a call from someone who was hurt when a car struck his motorcycle and he was calling to find out if he could have a case.  He didn’t think of calling a motorcycle lawyer at the time of the accident because he was driving without a motorcycle operator’s license.

The caller said because he was driving the motorcycle illegally and was issued a ticket for driving without a license, he thought that he would not be able to have a lawsuit.  I asked him if he had a valid motorcycle license at the time of the accident would that have prevented the accident?

Someone could be driving without a valid motorcycle license for various reasons but the lack of a license didn’t cause the accident:

  • it was valid but left at home;
  • was suspended or revoked; the driver failed to renew it; or
  • the driver never obtained a license.

Some people think that if the motorcycle operator obeyed had the law by not driving without a license, he would not be in that place at that time and the accident would never have happened.  But that argument is ridiculous. The lack of a driver’s license is not what caused the accident.

The only issue is whether the other driver is at fault.  The caller’s injuries were 100% caused by the other driver’s negligence when the caller’s motorcycle, which was stopped at a red light, was hit in the rear by the car.  The motorcyclist is therefore entitled to be compensated for his injuries.

If a motorcyclist did not have a motorcycle license, it would only become an issue if he lied about having a license.  If the motorcyclist testifies at a deposition or in court that he or she had a motorcycle license when it was only a learner’s permit or there was no license at all, evidence from the DMV can be submitted for the purpose of showing that the motorcyclist did not have a license and lied.  The jury could now consider whether the motorcyclist is a liar and whether other testimony should be believed.

If at the time of the accident, the injured operator of a motorcycle never had a license or previously had a motorcycle license which was expired, suspended or revoked, the motorcyclist IS entitled to compensation for injuries.

Continued at “Can I get money for injuries if I was driving without a motorcycle license? Part 2

Also see: Can I Sue for My Injuries If I Was Drunk?

If you have been hurt in a motorcycle accident in which you were operating the motorcycle without a valid license, please call the New York motorcycle accident lawyers

Motorcycle accident? Get the HURT911® Personal Injury Dream Teamon your side! 
Call right now, days/nights/weekends for a free consultation with no obligation!
1-800-HURT-911 | 1-800-487-8911

How Long Does It Take to Get My Settlement Check?

What Happens When You Settle Your Case?

Motorcycle accident cases can often be settled much more quickly than most car accident cases and often for the entire insurance policy.

As an example, your motorcycle was struck by a car and you have a scar on your forearm. Your lawyer calls advising that he negotiated with the insurance company and obtained a settlement offer of $150,000.

Photo showing a scar on the motorcyclist's forearm

We negotiated a $150,000 settlement for this scar on our client’s forearm

You decide to accept the settlement offer, so now what? 

The insurance company will require you to sign a release. The release permanently releases the owner and driver of the car, which means you can never (unless fraud was committed) seek any more money for your injuries from the owner and driver of the car.

The insurance company will send their release to your personal injury lawyer. Most lawyers use the insurance company release. We never used the insurance company release which often makes you responsible for Medicare liens and other items. We always use our own release which does not make you agree to provide guarantees. Our release also includes some language to settlement is not subject to income tax.

After you sign the release, your lawyer will send the release to the insurance company and wait for the insurance company to send the settlement check. The insurance company will only send a settlement check to your attorney.

We send the release by fax or email.  We usually receive the settlement check within 4-10 days after sending it.

Encompass insurance settlement check

$150,000 insurance settlement check for a scar on a motorcyclist’s forearm

If your case was settled after a lawsuit was started, New York State law C.P.L.R. § 5003-a, requires that the insurance company send the settlement check within 21 days (including weekends) of the date of making a “tender“, the date the release and stipulation of discontinuance was personally delivered to the insurance company or mailed by certified mail. 

The 21-day period applies to non-governmental defendants. If the defendant is a municipality such as NYC or any public corporation, it is allowed 90 days to pay.

C.P.L.R. § 5003-a governs actions (cases in suit), so if a lawsuit has not been filed by the time a case is settled and the insurance company fails to make timely payment, it may be possible to start an action by the purchase of an index number and filing a motion.

The penalty for failure to make a timely payment is 9% interest plus court costs.

11 NYCRR 1.1(1) (COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK) requires that if the settlement check is more than $5,000, the insurance company must send you a letter, on the same day they send your settlement check, advising that they sent the settlement check to your attorney.  If you receive a letter from the insurance company advising that they sent the settlement check to your attorney, then your attorney will have received your settlement check within a day of you receiving the letter. 

After your attorney receives the settlement check, you will either have to endorse the back of the check or sign a power of attorney allowing your lawyer to endorse the settlement check for you. You may have signed a power of attorney at the same time you signed the release.

$1M settlement check

$1M settlement check

Your lawyer will deposit the settlement check into an escrow account called an I.O.L.A. account (Interest On Lawyer Accounts). Because settlement checks are out-of-state checks for large amounts, it can take up to 10 days for the bank to clear your settlement check.

After your check clears, your lawyer will deduct case expenses, legal fees, and issue a check to you for your net settlement. We are usually able to issue the settlement check to our client in 3-7 business days after it is deposited in our I.O.L.A. account.

Motorcycle accident? Get the HURT911® Personal Injury Dream Teamon your side! 
Call right now, days/nights/weekends for a free consultation with no obligation!
1-800-HURT-911 | 1-800-487-8911

Can You Have a New York Worker’s Compensation Claim and Personal Injury Claim in the Same Motorcycle Accident?

If injured in a New York motorcycle accident while working, can you have both a Worker’s Compensation claim and a personal injury claim or lawsuit?

Some people think that if you have a Worker’s Compensation claim, you cannot have a personal injury claim. The Worker’s Compensation Law, enacted by the New York State Legislature in 1914, took away the right of an employee to sue an employer in most instances. However, you may be able to sue a third-party whose negligence caused or contributed to your injury in an accident while at work.

It’s not very common to have a Worker’s Compensation claim involving a motorcycle and a personal injury claim from the same accident, but it is possible. It is more common to have a personal injury claim if you were hurt while driving a car or van for work.

Some people may be employed to work on motorcycles or ride motorcycles for work and encounter an injury while working. These injuries may be covered only by Worker’s Compensation or by Worker’s Compensation and a personal injury claim.

For instance, an employed motorcycle mechanic would be covered only by Worker’s Compensation when injured in the shop from an accident that was not caused by someone other than the mechanic or the employer. However, if the mechanic is injured by someone else’s negligence, the mechanic can be covered by Worker’s Compensation and may also have a personal injury lawsuit.

If the mechanic is working on a motorcycle in front of the shop and a customer driving to the motorcycle shop strikes the mechanic, the mechanic may have both a Worker’s Compensation claim and a personal injury claim against the owner and driver of the car.

Likewise, a motorcycle police officer could be injured because the officer parked the motorcycle on hot asphalt where it sink into the asphalt and fell onto the police officer. Since there was no one besides the officer or employer negligent for the injury, this would only be covered by workers compensation. However, if the police officer’s motorcycle was struck by a car that ran a red light, the police officer would have both a Worker’s Compensation claim and a personal injury claim against the owner and driver of the car that ran the red light.

If you have been hurt in a New York motorcycle accident while working, please call New York motorcycle accident lawyer Phil Franckel immediately (days/nights/weekends) for a free consultation to discuss which benefits and claims you are entitled to.

1-800-HURT-911
1-800-487-8911

Can the IRS Tax Your Motorcycle Accident Settlement?

Many of my clients who were injured in a New York motorcycle accident have suffered injuries usually worth approximately $500,000 and sometimes a lot more. With injuries that serious, tax consequences and tax planning methods to avoid the settlement money being taxed by the IRS, must be considered.

After 17 tax credits in law school, this is a topic which interests me and on which I can write a few pages. For informational purposes only, I will attempt to provide a simple, general answer here in just a few paragraphs. You should not rely on this information and you should consult a CPA, accountant or tax professional regarding your specific circumstances before settling your case or before filing your tax return if you have already signed a release and settled your case.

IRC section 104(a)(2) addresses income exclusions for taxation of personal injury lawsuit settlement payments, which includes New York motorcycle accidents. Money paid for property damage and medical bills are not taxable because it is offset by a loss. Likewise, money paid for “pain and suffering” in settlement of a personal injury claim is generally not taxable because it is compensation for a loss which is intended to make you whole again.

When is money paid to settle a personal injury claim taxable?

Lost Wages/Lost Income. Money paid for lost income is taxable.

Psychological Injuries. Money paid for psychological injuries may be taxable. The U.S. Court of Appeals for the District of Columbia in Murphy and Leveille, Appellants v. IRS and USA, Appellees, reversed a decision that money paid for psychological injuries is not taxable. The court ruled that the personal injury award Ms. Murphy received was “within the reach of the congressional power to tax under Article I, Section 8 of the Constitution”, even if the award was “not income within the meaning of the Sixteenth Amendment”. The U.S. Supreme Court denied review of the decision on April 21, 2008.

Punitive Damages. Money paid for punitive damages is taxable. IRC section 104(a)(2) was amended in 1996 making punitive damages taxable without regard to their connection to a physical or nonphysical injury or sickness.

Interest Earned after a Personal Injury Settlement. If you receive money for an injury which is not taxable and you deposit the money in a savings account or otherwise invest it, outside of certain kinds of trusts such as a Special-Needs Trust or Pooled Trust, the interest earned is taxable. For more information about Special-Needs Trusts or Pooled Trusts, see HelpWithLiens.com.

When money is awarded pursuant to a verdict after trial, the verdict will state how much money is paid for property damage, medical bills, lost wages, pain and suffering, etc. The amount of your personal injury award which is subject to taxation by the IRS or state tax authority will be determined by the jury verdict.

The problem is when money is paid pursuant to a settlement, many lawyers frequently do not state in the release what the money is being paid for. It is possible for the IRS to make a determination by examining various papers in the file, such as the initial claim letter, the legal complaint, papers submitted to the insurance company as proof of damages, and the release which was signed.

This problem can be rectified with the proper wording in the settlement release. The usual “General Release” form is silent on tax issues and thus not helpful. It is therefore important to customize the release to address the tax issues. The provisions which result in a favorable tax status are often adverse to the insurance company’s interests, however, I have usually been able to successfully include provisions in my clients’ release to prevent taxation of settlement proceeds.

If you have been hurt in a New York motorcycle accident, I will be happy to discuss income tax implications of your settlement payment and the ways in which I can help you to avoid any income tax liability, so that you do not have to pay any income taxes on your motorcycle accident settlement.

Motorcycle accident? Get the HURT911® Personal Injury Dream Teamon your side! 
Call right now, days/nights/weekends for a free consultation with no obligation!
1-800-HURT-911 | 1-800-487-8911