Where there is proof that preterm labor is causally related to an automobile accident, and where a physician recommends bed rest, such bed rest qualifies plaintiff for summary judgment if it meets minimum time frame contemplated by insurance law §510(d).

The plaintiff passenger sued the defendants owner and driver, seeking damages arising from a traffic accident. The Supreme Court, Kings County (New York), granted the passenger's motion for summary judgment, finding that she sustained a serious injury within the meaning of Insurance Law § 5102(d) under the 90/180-day category and denied cross motions for summary judgment filed by the owner and the driver. The owner and the driver appealed. Insurance Law § 5104 provides that there shall be no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle within New York, except in the case of serious injury or for basic economic loss. Serious injury is defined by condition-specific categories in Insurance Law § 5102(d) and includes 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 90 days during the 180 days immediately following the occurrence of the injury or impairment. This appeal presents an issue of first impression in the appellate courts as to whether a pregnant plaintiff, who was prescribed prolonged bed rest to deal with preterm labor allegedly caused by an automobile accident, may obtain summary judgment under the 90/180-day category of the New York Insurance Law threshold. The appellate court held that, where there is proof that preterm labor is causally related to an automobile accident, and where a physician recommends bed rest, such bed rest does qualify the plaintiff for summary judgment if it meets the minimum time frame contemplated by Insurance Law § 5102(d) and if the defendant fails to raise a triable issue of fact in opposition.

Case Law Alert - 3rd Qtr 2011