imchuckbass58 wrote:Question for anyone in NY that did Essay R-19:
On the third issue (summary judgment), I thought the issue was whether the suit is barred by no-fault insurance (i.e., Paul can only bring suit if you suffer serious injury or damages in excess of basic economic loss), not whether Paul has stated a negligence claim (as indicated in the model answer). Can anyone explain why I'm wrong (or, agree with me that Barbri is wrong)?
That one sort of threw me as well. The only thing I could think of is that a driver can bring a suit against another driver, it's the passengers and pedestrians that are barred from suing for negligence unless it exceeds the thresholds.
I just did this and was confused as well.
(Warning, Spoilers if you haven't done this essay)
I looked it up in the CMR. A lawsuit is permitted between a covered person and a non covered person for all damages including basic economic loss and pain and suffering (even in the absence of serious injury). However, the insurer has a lien against recovery for all first party benefits paid or payable by it to a covered person.
So, Dan was an "uncovered person" because he had State X insurance (AutoCo) and therefore would not have No Fault Insurance. Paul can therefore sue him because an insured may sue an uninsured and recover for anything, but the No Fault company has a lien on the damages award.
That's how i understand it anyway.