In my previous article What is No-Fault?, I explained that, under the NYS  Insurance Law, motorcycle operators and their passengers are not able to obtain no-fault insurance coverage which pays for medical bills, lost income and other expenses.  I also wrote that because No-Fault does not provide coverage to the occupants of a motorcycle, there is a potential benefit to a motorcycle occupant who is hurt in an accident and seeks to file a lawsuit for "pain and suffering".

§ 5104(a) of the New York Insurance Law provides that when no-fault insurance is available, such as for an operator or passenger of a car, the injured person will not have a right to recover money for personal injuries unless that person has a serious injury.  This section also provides that the owner or operator of a motorcycle shall not be subject to a lawsuit by a person, who is covered by no-fault, for recovery of non-economic loss (includes pain and suffering) or basic economic loss (medical bills, etc. not exceeding $50,000), except in the case of a serious injury.

As stated above, the problem that faces a person who is hurt in an accident covered by no-fault insurance is that the person does not have a right to recover for pain and suffering unless the person has suffered a "serious injury".  What is a serious injury?

§ 5102(d) of the New York Insurance Law defines what a "serious injury" is.  Until recently, attorneys routinely used parts of this paragraph to prove that some common injuries are serious.

Unfortunately, in the last few years, court decisions have made it much more difficult to prove that many common injuries are serious.  Recently, even some injuries that a rational person or doctor would consider to be serious, such as a torn ligament, have been ruled by the courts to not be serious enough under the no-fault law and those cases were dismissed.  This has caused most attorneys to be very selective when deciding whether or not to represent a car accident victim.

The benefit to motorcycle operators and passengers is that since they are excluded from obtaining no-fault benefits, when hurt in an accident, a motorcycle occupant does not have to prove that an injury is serious.  Thus, a lawsuit on behalf of a motorcycle occupant cannot be dismissed because the injury is not serious enough.  As long as someone else was negligent in causing the accident, the motorcycle occupant will be able to recover money for pain and suffering.

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