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A QUICK GUIDE TO NEW YORK PIP RECOVERY
Current As Of September 1, 2013 For further information, case law, and more: www.janmeyerlaw.com/nypip
WHEN AND HOW IS PIP RECOVERED?
From the insurer of a “covered person” (basically, a pedestrian or a person covered by PIP) only in an accident involving a vehicle weighing more than 6,500 pounds, unloaded, or a vehicle used principally to transport people or goods for hire. N.Y. Ins. L. § 5105 (a). Note: the 6,500 pound vehicle or vehicle for hire need not be the at-fault vehicle. Recovery is by arbitration at Arbitration Forums. N.Y. Ins. L. § 5105 (b), 11 N.Y.C.R.R. 65.10(b).
From a “non-covered person” (basically, neither a pedestrian nor a person covered by PIP) other than a properly insured motorcycle. N.Y. Ins. L. § 5104. Recovery is by way of a lien against the insured’s bodily injury claim, or, by direct suit if the insured does not file a bodily injury claim within two years of the accident. N.Y. Ins. L. § 5104 (b).
From another insurer who should be the primary PIP carrier (priority of payment). N.Y. Ins.
§ 5105 (b). Note that in general the primary carrier is the insurer of the car in the accident, not the injured person’s own insurer, See N.Y. Ins. L. § 5103, and worker’s compensation is generally primary over the PIP carrier N.Y. Ins. L. 5102(b)(2). Recovery between PIP carriers is by arbitration at
Arbitration Forums. N.Y. Ins. L. § 5105 (b), 11 N.Y.C.R.R. 65.10(b). Recovery from a WC carrier may require suit as the term “insurer” in 5105(b) may not apply to a WC carrier.
Additional PIP (APIP) is always recoverable (note that like PIP recovery, it is not subject to a serious injury threshold). This was the common law rule and then was affirmed by N.Y. General Obligations Law § 5-335(b). Potentially recoverable by direct suit or by contractual/equitable lien. Aetna Cas. and Sur. Co. v. Jackowe, 96 A.D.2d 37, 468 N.Y.S.2d 153 (2nd Dept. 1983)
STATUTES OF LIMITATION:
Against an insurer (i.e. in an accident involving a vehicle for hire or weighing over 6,500 pounds or priority of payment issues): three years from the date of each individual payment. Motor Vehicle Acc. Indemnification Corp. v. Aetna, 89 N.Y.2d 214, 652 N.Y.S.2d 584 (1996), Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40 (4th Dept. 2003). Note that this SOL applies even to claims against government entities. City of Syracuse v. Utica Mut. Ins. Co., (4 Dept. 1982) 90 A.D.2d 979, 456 N.Y.S.2d 571, affd. 61 N.Y.2d 691, 472 N.Y.S.2d 600, 460 N.E.2d 1085.
Recovery of PIP from a “non-covered person.” Recovered by lien against insured’s bodily injury action. If insured does not file within two years of the accident, insurer may file direct suit from two years and one day until five years after the accident. Safeco Ins. Co. of Amer. v. Jamaica W ater 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)
Recovery of Additional PIP (APIP): three years from the date of the accident even if the first Additional PIP payment was not made within three years of the accident. APIP recovery is treated as a plain vanilla tort. Allstate Ins. Co. v. Stein, 1 N.Y.3d 416, 775 N.Y.S.2d 219 (2004). Any special SOLs for torts (e.g. for suing state, a municipality, or a public corporation) will apply.