Friday, October 21, 2011
Eric Turkewitz has a great post on New York's highest court wading into the issue of what constitutes a "serious injury" for purposes of the state's no-fault threshold. The failure to set proper thresholds is one of the biggest reasons that no-fault has not performed as well as it was expected to. Monetary thresholds were set too low and verbal thresholds were too vague. Eric rightfully challenges the language of New York's verbal threshold (and it's one of the best-drafted statutes).
Tighter threshold language is relevant to an issue I've been working on lately. The Malaysian automobile tort system is terribly inefficient. Among other things, Malaysia has separate hearings for liability and damages, often months or even years apart. A group of Malaysian researchers led by Norila Abu Hasan is preparing a no-fault choice automobile proposal. Last December, they visited the United States and consulted several scholars, including Andy Popper and Jeffrey O'Connell. I told them drafting a proper threshold was crucial to the success of the system. I'll be presenting a paper on thresholds in Malaysia in December.
Eric provided the language in the New York statute in his post, complete with his italicized portions indicating vagueness problems:
- A personal injury that results in death;
- A significant disfigurement;
- A fracture;
- The loss of a fetus;
- Permanent loss of use of a body organ, member, function or system;
- Permanent consequential limitation of use of a body organ or member;
- Significant limitation of use of a body function or system; or
- A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.
Eric also recommended that the legislature revisit the language. As someone who will be recommending threshold language in the near future, how should it be changed? I'd love to hear from Eric or anyone else who has ideas on the subject.