Legal Report

During the holiday season, sentimental thoughts naturally turn to family, friends, gift giving and good and warm times spent in the company of the people we love and who make life worthwhile. It is with this in mind that I implore you to take the time to think of yourself and the security of your family and to do something which will take care of you in the event of a serious injury resulting from a car accident.

I beg that, as you read this Legal Report, you take out your personal automobile policy and make sure you have underinsured coverage. What is underinsurance coverage and what does it do? I'll answer this question with a "war story" from my law practice. We represented a cop who was very seriously injured in a car accident. His injuries were so serious that they were regarded as career ending. An application for 3/4 accidental disability retirement benefits was submitted. The car that hit our client's RMP carried only $100,000.00 liability insurance, which is the limit on the amount of money available from insurance as compensation to our client from a lawsuit. Assume that our client had injuries that were grave enough to warrant compensation in the sum of $500,000.00. Assume further that our client did not have underinsurance on his own policy. In this scenario our client's recovery, from a practical point of view, is limited to $100,000.00, despite the fact that this sum falls far short of adequately and fairly compensating our client for his injuries.

Our client could have protected himself and his family if he had purchased underinsurance coverage for himself. When you buy underinsurance coverage you provide a level of protection for yourself above and beyond the coverage carried by the driver who hits you and causes your injury. To get back to my client's example, assume that he carried $300,000.00 liability and $300,000.00 underinsurance on his personal automobile policy. If he collected the full $100,000.00 from the other driver's insurance policy and he was awarded $500,000.00, he could then go after his own insurance policy, pursuant to the underinsured provision, for $200,000.00, which represents the difference between his underinsurance amount and the amount being paid by the other driver. You can only purchase underinsurance up to the limit of your own car insurance policy.

Whenever any members of my firm or I give lectures or seminars on Workers' Compensation or disability retirement benefits, we always mention underinsurance coverage. Obviously we have not reached enough of you. I hope that all of you will now recognize the importance of having underinsurance coverage and that you will purchase it, or increase the amount you have, immediately if you do not have it. While uninsured motorist coverage is required by law, underinsurance coverage is not. You have to ask for it and pay separately for it. It is not expensive, especially considering its value in the event of a serious car accident with a motorist who carries minimum liability coverage.

At a recent seminar, my partner, Richard Brandenstein, Esq., was asked whether an umbrella policy you might have acts in the same way as an underinsurance provision. It does not. Your umbrella policy will protect you in the event that you cause injury to someone else and you are sued for damages; it does not cover you when you have been injured in a car accident and the driver who injures you is not adequately insured to cover your injuries.

Switching to the world of 3/4 accidental disability retirement, in a recent case, a Port Authority of New York/New Jersey police officer, who also belongs to the New York State Police and Fire Retirement System, filed concurrent applications for 3/4 accidental disability retirement benefits and 1/2 performance of duty disability benefits. The applications were filed on October 25, 2007 and fully favorable decisions on both applications were made on October 16, 2008. The Retirement System found that both of the cop's injuries were "accidents" within the meaning of the law, so as to qualify him for the 3/4 disability benefit. The accidents were described in this way: 1) "On April 20, 2005, while on duty and at work, walking toward the ramp area [at JFK airport], my right foot became entangled in a protruding coil of hose, causing me to trip and fall and injure my back". 2) "On February 17, 2007, while on duty and at work, walking toward the side rear door of building 269, I accidentally slipped on black ice causing me to fall, resulting in injury to my neck, left shoulder and additional injuries to my back".

Applications for both 3/4 accidental disability and 1/2 performance of duty disability benefits were filed in the event that the Retirement System might have determined that either one or both of the injuries were not "accidents". The police officer was very significantly injured and he simply could not work anymore. He needed to establish his disability and did not have the luxury of filing for 1/2 performance of duty after a 3/4 accidental denial, if that happened.

I have often been asked about the strategy of filing for both benefits at the same time. Clients have wondered if by filing both applications the Retirement System is being signaled there is concern over the "accident" issue. Other clients have asked whether the filing of both applications invites the Retirement System to simply deny the higher and better 3/4 accidental benefit and instead award the lesser 1/2 performance of duty benefit.

Over the course of 20 years representing members of the PBA in disability matters, I have had many disagreements with the Retirement System. I still do and I am currently involved in litigation concerning the Retirement System's failure to publish its policies, as it is required to do. However, although many cases are being denied for "no accident", filing a 1/2 performance of duty application along with the 3/4 accidental one, has not been detrimental. As for awarding the lesser benefit, this will happen only if the Retirement System agrees that the cop is disabled, but not due to an accident. Essentially, if it IS an accident, the concurrently filed 1/2 performance of duty application will not dissuade the Retirement System from making the right decision. Further, if it IS an accident and disability is found to exist, the Retirement System will approve both benefits and the cop is free to select the higher benefit.

The following injury was found NOT to be an accident by the Retirement System: "While on duty and at work, the police officer was assisting in searching a combative arrestee when the arrestee spit at the cop. The cop washed sputum from his right arm and face. Further, the cop reports that during the struggle the cop twisted his right wrist and is now experiencing pain in his wrist and soreness to his elbow. The cop also is experiencing loss of movement and strength in his right arm".

The following injury was also found NOT to be an accident by the Retirement System: "While on duty and at work, in the course of gaining control of a mentally disturbed, violent individual, it was necessary to use physical force. In this event, two other police officers and two AMTs were assisting when the momentum of using force caused me to fall onto the wood bed frame on my back and everyone else fell on top of me, causing my injury".

On another note, I am collecting PBA cards for the years we have proudly served as official PBA disability counsel. I am missing 1988 and 1989. If you can get me these cards, I am deeply appreciative and I will acknowledge your contribution to my collection in the next PBA Legal Report.

On behalf of my partners, Victor Fusco, Esq., and Richard Brandenstein, Esq., and the entire staff of the law firm, we wish all of you and your families and friends a wonderful holiday season!!

"Stay safe out there"