Neil A. Goldberg is a Senior Trial Partner in the law firm of Saperston, Day, Lustig, Callick, Kirschner & Gaglione in Buffalo and Rochester, New York. He specializes in the fields of insurance coverage and defense and product liability litigation. The author wishes to gratefully acknowledge the assistance of Joseph M. Schnitter in the preparation of this article.
The ability of motor vehicle owners to purchase substantial additional personal injury protection benefits in the event of significant or catastrophic injury and the subrogation rights provided to the insurance carriers pursuant to the terms of the Additional Personal Injury Protection Endorsement have generated a great deal of controversy and litigation in recent years in New York State. Similar developments have taken place with respect to the prosecution and defense of cases involving the application and scope of insurance carriers' lien rights as provided for by Insurance Law § 5104(b).
Counsel for both plaintiffs and no-fault insurance carriers in a growing number of instances have failed to protect adequately their clients' interests. This neglect by counsel can result in dire consequences, including the forfeiture of significant sums by the client and malpractice exposure on the part of counsel. To protect the interests of their respective clients, counsel need to appreciate the rapidly developing case law in this area. This article examines a number of the emerging issues that must be considered in the evaluation and handling of catastrophic injury cases in the no-fault era.