Law Offices of Jan Meyer and Associates, P.C.
Guide to Recovery of PIP in New York
With Other Selected New York Laws Related to Subrogation
By: Noah Gradofsky, Esq.
Edited by: Jan Meyer, Esq.
(201) 862-9500
(201) 862-9400 (Fax)
nypip@janmeyerlaw.com

Click here to download our printable quick guide to New York PIP recovery (Current as of October 19, 2016).
Click here for our Guide to Recovery of PIP in New Jersey.

This is a basic primer on New York law as pertaining to recovery 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 February 4, 2016.

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.

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CONTENTS:


N.Y. Insurance Law § 5104 (a):No recovery by one "covered person" against another "coverd 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.

What this statute says:

Notes on This Section:

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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.

What this statute says:

Notes on This Section:

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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.

What this statute says:

Notes on This Section:

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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.

What this statute says:

Notes on This Section:

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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.

What this statute says:

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Other selected New York Subrogation laws.

Selected New York Statutes of Limitation For claims against government entities, see below.

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  • New York Minimum Automobile Insurance Requirements 25/50/10 with 50/100 where death ocurrs, plus $50,000 in PIP coverage. Veh. and Traf. L. 311.
  • FOR NEW YORK CITY TAXIS AND LIMOUSINES: New York City regulations increase the bodily injury and PIP coverages to 100/300/10 plus $200,000 in PIP coverage. See Rules of the City of New York - Title 35 §58-13.
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    The effect on subrogation rights if the insured signs a release for the adverse party: One common defense against a subrogation claim is that the company's insured has already signed a release to the adverse party. Example: Insurance company (I) paid a $5,000 property damage claim to client (C), and attempts to subrogate against adverse party (A). A (or A's insurance company) claims that C signed a release, releasing A from any further liability. While this can be a valid defense, it very often is not, as there are several exceptions that can be exploited:

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    Additional PIP may be subrogated: N.Y.Insurance Law § 5104 (a) prohibits only the recovery of "basic economic loss" which means the first $50,000 of medical expenses and lost wages. It does not prohibit recovery of Additional PIP ("APIP") payments. See Allstate Ins. Co. v. Mazzola 175 F. 3d 255 (3rd Cir. 1999). Note that the antisubrogation law passed in New York in 2009 (discussed generally here) explicitly allows APIP recovery (N.Y. Gen. Obl. L. 5-335(b)). It may, however, prohibit recovery for other economic losses (e.g. medpay). Some additional notes:

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    Joint and several liability in New York "When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable." Ravo v. Rogatnick, 70 N.Y.2d 305, 310, 520 N.Y.S.2d 533, 514 N.E.2d 1104 (1987). What this means is that if two or more people do something wrong at the same time and each of these wrongs combines to cause an injury, any one of those wrongdoers may be held liable for 100% of the damages (with certain exceptions discussed below). This comes in particularly handly when some tortfasors may not have the money or insurance to pay for the damages that they caused. Note that a tortfeasor that is held liable to pay more than his or her "fair share" of the damages may, generaly, seek contribution from the other tortfeasors. For practical and legal reasons, a Plaintiff will often sue all of the tortfeasors at the same time, and if the Plaintiff has not done so, the tortfeasor(s) who is (are) sued will likely bring the other tortfeasors into the case.

    Example:

    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).

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    New York is a Pure Comparative Negligence State. Example: A and B are in an accident. A is 90% at fault and B is 10% at fault. A has $100,000 in damages. A may recover $10,000 from B. This rule is codified in N.Y.C.P.L.R. §1411:

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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:

  • Self-funded ERISA plans are not subject to this law (due to federal preemption), while fully-funded ERISA plans will likely be affected by the anti-subrogation law. It is our interpretation (as well as the interpretation we have seen in a number of commentaries) that ERISA will preempt the New York ant-subrogation law for self-funded plans only. This seems to be confirmed by the recent decision in Wurtz v. Rawlings Co., LLC, 761 F.3d 232 (2d Cir. 2014). Click here for a legal memo discussing this piont. Thus, if such a plan allows for subrogation/lien rights then the plan's language will preempt the anti-subrogation statute as well as any other New York law that might prevent subrogation. In the context of a lien placed on an injured party's recovery, some consideration should probably also be given to whether the plan has language that overrides New York's "Made Whole Doctrine," see e.g. Winkelmann v. Excelsior Ins. Co., 626 N.Y.S.2d 994 (1995).
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    Selected special rules for claims against government entities (e.g. New York state, municipalities, etc.).

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    Vicarious Liability Of Motor Vehicle Owners Except As Superceded By Federal Law: Veh. & Traf. L. 388 provides that the owner of an automobile is liable for the deaths or injuries caused by someone operating that vehicle with the owner's express or implied permission. Therefore, if John is driving Ed's car and gets in an accident, Ed can be sued for those damages. Some important notes:

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    Selected issues regarding rental cars and insurance

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