Click here to download our printable quick guide to New York PIP recovery (Current as of January 17, 2023).
Click here for our Guide to Recovery of PIP in New Jersey.
This is a basic primer on New York law pertaining to recovery and/or subrogation of no-fault (AKA "PIP") payments. It by no means covers all the intricacies of New York law, and therefore should be used as reference only. Some issues of law may be mentioned more than once on this page, where we felt the issue belongs under more than one heading. This document is provided as a reference guide only and is provided subject to this disclaimer. This page current as of January 17, 2023.
Click on individual terms to see how they are defined in New York PIP Law or to access further discussion of a particular issue (note that many of the definitions and discussions will come up in the frame at the bottom of the page). The best way to view this guide is to browse the table of contents in the top frame. Click on the subject of interest, and you will see the discussion in the bottom frame. CLICK HERE IF YOU DO NOT SEE THE BOTTOM FRAME. Note that some terms are left undefined, either because the definitions are intuitive, or because they are beyond the scope of this guide.N.Y. Insurance Law § 5104 (a):No recovery by one "covered person" against another "covered parson" of PIP. Also, no recovery of "pain and suffering" from a "covered person" without reaching the "serious injury threshold".
(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss. The owner, operator or occupant of a motorcycle which has in effect the financial security required by article six or eight of the vehicle and traffic law, or which is referred to in subdivision two of section three hundred twenty-one of such law, shall not be subject to an action by or on behalf of a covered person for recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.
Although no case law has definitively addressed this point, see Insurance Department, Opinions of General Counsel, Opinion Number 03-08-04 stating that a truck which lacked OBEL coverage was still subject to a loss-transfer claim for $75,000 (i.e. PIP + OBEL). See further Matter of Allstate Ins. Co. v. Travelers Cos., Inc., 159 A.D.3d 982 (2nd Dept. 2018) upholding an arbitration award of $75,000, which technically doesn't mean the arbitrator's decision was "right," just that the decision was not arbitrary, and Allstate Ins. Co. v. New York, 72 Misc. 3d 402 (Sup. Ct. Albany Cty. 2021), where both parties agreed that OBEL can be recovered in loss-transfer. However, compare Town of Huntington v. Allstate Ins. Co., 2020 NY Slip Op 34504(U) (Sup. Ct. Erie Ct. 2019) Affirmed 193 A.D.3d 1371 (4th Dept. 2021) and Matter of Tech. Ins. Co. v. Allstate Ins. Co., 2019 NY Slip Op 31720(U) (Sup. Ct. N.Y. Cty. 2019), both upholding arbitrators' rulings that a worker's compensation carrier paying compensation in lieu of PIP could only recover $50,000 via loss-transfer arbitration even though their injured employee had OBEL coverage. Again, an arbitrator's ruling being upheld by a court doesn't mean that the arbitrator's decision was "right," and the court in Town of Huntington v. Allstate Ins. Co. seemed to hint that it disagreed with the arbitrator's ruling (we disagree as well).
This means that an out-of-state vehicle that qualifies as covered person will not be subject to recovery of PIP (except as provided in Section 5105(a), discussed below) and will not be subject to recovery of non-economic loss (i.e. pain and suffering) absent serious injury.
Note that although the federal government is generally not subject to PIP recovery, and because Federal vehicles are not required to afford PIP benefits to pedestrians they strike (or anyone else for that matter), Cooper allows a pedestrian struck by an at-fault federal vehicle to sue the United States for basic economic loss (i.e. the losses that would be covered under PIP in almost any other accident in New York).
For more information on how out-of-state vehicles can qualify as "covered person"s, please see the definition of "covered person".
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N.Y. Insurance Law § 5104 (b): Recovery of PIP damages (and pain and suffering) from a non-covered person.
(b) In any action by or on behalf of a covered person, against a non-covered person, where damages for personal injuries arising out of the use or operation of a motor vehicle or a motorcycle may be recovered, an insurer which paid or is liable for first party benefits on account of such injuries has a lien against any recovery to the extent of benefits paid or payable by it to the covered person. No such action may be compromised by the covered person except with the written consent of the insurer, or with the approval of the court, or where the amount of such settlement exceeds fifty thousand dollars. The failure of such person to commence such action within two years after accrual gives the insurer a cause of action for the amount of first party benefits benefits paid or payable against any person who may be liable to the covered person for his personal injuries. The insurer's cause of action shall be in addition to the cause of action of the covered person except that in any action subsequently commenced by the covered person for such injuries, the amount of his basic economic loss loss shall not be recoverable.
STATUTE OF LIMITATIONS for recovery of PIP from a non-covered person:The injured party has three years from the date of accident to sue for damages. The insurance company's right to sue begins only after two years have passed from the accident, and runs three years from then. Example: If the date of accident is January 5, 2005, the injured party can sue until January 5, 2008. If the injured party has not sued by January 5, 2007, then the insurance company can sue from January 5, 2007 through January 5, 2010. Safeco Ins. Co. of Amer. v. Jamaica Water Supply Co., 83 A.D.2d 427, 444 N.Y.S.2d 925 (2nd Dept. 1981) (per Hopkins, J.P.), aff'd 57 N.Y.2d 994, 457 N.Y.S.2d 245, 443 N.E.2d 493 (1982). NB: There is a different SOL for recovery of APIP and for the recovery of PIP from the insurer of a covered person.
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N.Y. Insurance Law § 5105 (a): Right to recover PIP if one car involved is over 6,500 pound uloaded or a vehicle principally used for transportation for hire.
(a) Any insurer liable for the payment of first party benefits to or on behalf of a covered person and any compensation provider paying benefits in lieu of first party benefits which another insurer would otherwise be obligated to pay pursuant to subsection (a) of section five thousand one hundred three of this article or section five thousand two hundred twenty-one of this chapter has the right to recover the amount paid from the insurer of any other covered person to the extent that such other covered person would have been liable, but for the provisions of this article, to pay damages in an action at law. In any case, the right to recover exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred pounds unloaded or is a motor vehicle used principally for the transportation of persons or property for hire. However, in the case of occupants of a bus other than operators, owners, and employees of the owner or operator of the bus, an insurer which, pursuant to paragraph one of subsection (a) of section five thousand one hundred three of this article of this article, provides coverage for first party benefits for such occupants under a policy providing first party benefits to the injured person and members of his household for loss arising out of the use or operation of any vehicle of such household, shall have no right to recover the amount of such benefits from the insurer of such bus.
The New York State Insurance Department has provided some guidance in the form of Circular Letter No. 4 (2019), although technically speaking a court would not be obligated to adopt the Insurance Department’s interpretation. The Insurance Department says that the Vehicle and Traffic law (particularly VTL Article 44-B, Veh. Traf. L. 1691 et. seq.) indicates vehicles providing TNC trips initiating within New York State but outside of New York City, are not considered “vehicles for hire" and therefore the involvement of a such a vehicle does not trigger loss-transfer. On the other hand, the Insurance Department notes that rideshare trips that initiate within New York City (or any city that enacts a local law pursuant to General Municipal Law 182, though we are not aware of any such city as of yet) are not subject to VTL Article 44-B (rideshares initiating in New York City are governed by New York City’s Taxi and Limousine Commission regulations) and hence “remain subject to all the laws that generally apply to for-hire vehicles and remain subject to the intercompany loss transfer provisions of Insurance Law § 5105." Similarly, the Insurance Department notes that because Veh. Traf. L. 1691(1) limits the defintition of "TNC vehicle" to trips initiating within New York state and hence Article 44-B does not apply to trips initiating outside of New York State, which presumably measns that a vehicle providing a rideshare trip that initiates outside of New York State is a "vehicle for hire" and its involvement will trigger the availability of loss transfer (though NB if it is an out-of-state vehicle, depending on how it is insured the driver of that vehicle may or may not qualify as a "covered person").
Note that since vehicles providing rideshare trips initiating within New York City must follow all New York City Taxi and Limousine Commission regulations, they in generally will be vehicles that are "used principally" for transportation for hire.
Another interesting consideration is which carrier will be liable for a loss transfer claim against a rideshare vehicle. Per Ins. L. 5105(a), the loss-transfer claim is against the insurer
of any other covered
person. Please see the discussion of rideshare vehicles in the “priority of payment" section below as to which insurer provides coverage for a rideshare vehicle.
Also note that one challenge may be to find out whether a certain vehicle was engaged in rideshare activity at the time of the accident. To assist with this issue, Veh. Taf L. 1695(6) provides that in “a claims coverage investigation, a TNC and any insurer providing coverage under this article shall, within fifteen days after a claim has been filed, facilitate the exchange of relevant information with directly involved parties and any insurer of the TNC driver if applicable, including the precise times that a TNC driver logged on and off of the TNC’s digital network in the twelve hour period immediately preceding and in the twelve hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions and limits provided under any motor vehicle insurance maintained under this article."See this link for information on how to request some information from Uber (which seems to allow requests for information on whether a driver was using the app, but not whether a driver was engaged in a prearranged ride) and this link for information about seeking information from Lyft.
For links to other portions of this guide that discuss matters related to TNC vehicles, click here.
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N.Y. Insurance Law § 5105 (b): Disputes between insurers must be resolved through arbitration (Arbitration Forums).
(b) The sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent. Such procedures shall also be utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits.
Other than in New York City, when a vehicle driver is logged in to the TNC network, Veh. Traf. L. 1693 provides special coverage requirements (PIP and liability), which technically can be met by either the driver, TNC company, or a combination of the two. However, Veh. Traf. L. 1695(1) authorizes the TNC driver’s private passenger automobile policy to exclude all coverages whenever the vehicle is connected to a TNC network and Veh. Traf. L. 1693(5) requires the TNC’s policy to provide any required coverage that the TNC driver’s policy does not provide. The private policy may choose to provide primary or excess coverage even when its insured vehicle is connected to the TNC.
Therefore, in order to determine who should provide PIP or other insurance coverage (or if one insurer paid PIP in order to determine if another applicable insurer should share those costs), both the TNC policy as well as the driver’s policy may need to be reviewed. However, the most likely scenario is that the TNC’s policy will be responsible for the PIP (see e.g. Uber’s coverages described here). If the driver is not logged in to the rideshare network, then the vehicle’s regular policy will apply.
In New York City, Veh. Traf. L. 1693 does not apply, and instead New York City’s Taxi and Limousine Commission insurance requirements apply. These rules require that any vehicle used for rideshare purposes maintain a commercial policy that includes PIP coverage.
An additional layer of complication as to who provides PIP benefits is the availability of worker's compensation coverage for the driver of the TNC vehicle. Note that under Ins. L. 5102(b)(2) worker's compensation coverage is primary over PIP. As to the driver of a TNC (including TNCs opearated in New York City), worker's compensation coverage is provided by the Black Car Fund. The coverage applies while the TNC drivers is engaged in a "prearranged trip" (i.e. from when a TNC trip request is accepted until the last passenger is discharged) and while a TNC driver "is logged onto a TNC digital network and ... engaged in an activity reasonably related to driving as a TNC driver taking into consideration the time, place and manner of such activity." See Exec. L. 160-cc(1).
One challenge may be to find out whether a certain vehicle was engaged in rideshare activity at the time of the accident. To assist with this issue, Veh. Traf. L. 1695(6) provides that in “a claims coverage investigation, a TNC and any insurer providing coverage under this article shall, within fifteen days after a claim has been filed, facilitate the exchange of relevant information with directly involved parties and any insurer of the TNC driver if applicable, including the precise times that a TNC driver logged on and off of the TNC’s digital network in the twelve hour period immediately preceding and in the twelve hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions and limits provided under any motor vehicle insurance maintained under this article." See this link for information on how to request some information from Uber (which seems to allow requests for information on whether a driver was using the app, but not whether a driver was engaged in a prearranged ride) and this link for information about seeking information from Lyft.
For other analysis of the interplay between rideshare vehicles and the New York PIP scheme, see our discussion of rideshare vehicles in the loss-transfer section above
For links to other portions of this guide that discuss matters related to TNC vehicles, click here.
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N.Y. Insurance Law § 5105 (c): Amounts recovered for PIP do not diminish adverse insurer's liability policy limits for other claims.
(c) The liability of an insurer imposed by this section shall not affect or diminish its obligations under any policy of bodily injury liability insurance.
If a insurer is liable to pay another insurer in PIP loss transfer (i.e. The insurer of a culpable automobile in a case where one of the vehicles involved is over 6,500 pounds .or a vehicle for hire), that payment does not diminish the policy limits for other purposes. This means that an insurer seeking loss transfer from another insurer, does not have to worry that this will negatively effect, for example, the amount available for its insured to recover in a bodily injury case.
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Other selected New York Subrogation laws.
Selected New York Statutes of Limitation For claims against government entities, see below.Thus, it appears that in calculating any time limits including statutes of limitation, the period between March 20, 2020 (according to Foy, March 7, 2020, although we are not certain whether there is any provision in Governor Cuomo's orders to begin the tolling on this date) and November 3, 2020 simply do not count. Therefore, causes of action that arose prior to March 20 (possibly March 7) and did not expire prior to that date have an extra 229 (possibly 242) days added to their statute of limitations. Further, statutes of limitations for causes of action that arose on or after March 20 (possibly March 7) only began to run on November 4, 2020, so that, for instance, the three-year statute of limitations for a negligent act on April 1, 2020 will have its statute of limitations run on November 4, 2023.
We highly recommend that litigants not rely on this statute tolling except when necessary. Filing claims within the "regular" statute of limitations will avoid questions as well as the possibility of another court interpreting matters differently, or future executive or legislative action changing the situation. However, if one discovers a claim that might appear to be beyond its statute of limitations, it will be important to consider whether the COVID orders add more time to the statute of limitations.
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For links to other portions of this guide that discuss matters related to TNC vehicles, click here.
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Note that the tortfeasors must have acted negligently at the same time, for instance two negligent drivers causing an accident in which another person is injured (as opposed to one person who is injured and then later on is the victim of medical malpractice).
How does the Plaintiff's own negligence figure into this situation? Say, for instance Plaintiff is found 5% at fault, while A is found 50% at fault and B is found 45% at fault? Do we include Plaintiff's fault int he math, and therefore find that A is not more than 50% liable and therefore not jointly and severally liable for B's 45%, or do we just look at the two tortfeasors, and conclude that A is more than 50% liable and thus subject to joint and several liability. The statute is not at all clear on this issue. However, the highly influentcial treatise New York Practice by professor Siegel (§ 168B) argues that the Plaintiff's percentage should not be included and thereofre A is jointly and severally liable. Robinson v. June, 167 Misc.2d 483, 637 N.Y.S.2d 1018 (Sup. Ct. Tompkins County, 1996) agreed with this conclusion.
THERE ARE SOME VERY IMPORTANT LIMITATIONS TO THIS EXCEPTION TO JOINT AND SEVERAL LIABILITY.
When these exceptions apply, the joint tortfeasor may be found liable
for 100% of the damages even if they are not more than 50% at fault.
Some of these exceptions come from N.Y.C.P.L.R. § 1601 itself, while
there are other exceptions that appear in N.Y.C.P.L.R. § 1602. Here are
some of the key exceptions:
General Obligations Law 15-108(b) provides that a settling tortfeasor is also not subject to a claim of contribution from another tortfeasor. General Obligations Law 15-108(a) provides that once a tortfeasor settles, the remaining tortfeasor is only liable for the lesser of his share of the fault or the remaining unpaid damage.
Note, finally, that this rule covers only contribution, not indemnification.
The same is true, for example, with a party that settles because it is vicariously liable for the act of another.
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New York's Anti-subrogation law: In 2009, New York passed an anti-subrogation law, General Obligations Law § 5-335. This law has limited application, and its bark is bigger than its bite. PLEASE NOTE: AMENDMENTS TO THE ANTI-SUBROGATION LAW WERE SIGNED INTO LAW BY GOVERNOR CUOMO ON NOVEMBER 13, 2013. THE DISCUSSION BELOW INCORPORATES THESE AMENDMENTS . . . Click here to read the key anti-subrogation parts of this statute. As with any new law, it will take some time and development of case law to be certain of its effect and application. However, here are some important observations about this law:
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For discussions of unique aspects of New Jersey insurance and subrogaton law relevant to rideshare companies such as Uber and Lyft, see above discussions of:
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