SORIANO v. MARTIN (2005)

 The jury trial on damages in this automobile accident case was held from May 9 through May 13, 2005, defendants having conceded liability.   The accident occurred while plaintiff, a driving instructor, was on the job.   All parties were “covered persons” under the No-Fault law, and plaintiff testified at trial that he did not receive any compensation from any source, including Worker's Compensation, for his lost earnings.   At the conclusion of the trial, the jury returned a verdict finding that plaintiff had suffered a serious injury under the No-fault law, and awarded plaintiff $20,000.00 for past pain and suffering and $5,000.00 for lost earnings.   After the jury returned its verdict, defendants moved to set aside that portion of the verdict awarding damages for lost earnings.   The Court reserved decision, and requested post-trial briefs from the parties on this issue.   For the following reasons, the jury's award of damages for lost earnings is stricken.

Under the No-Fault law, basic economic loss may not be recovered in a plenary action by a covered person against another covered person.   See Ins. Law § 5104 [a];  Canfield v. Beach, 305 A.D.2d 440, 442-43, 761 N.Y.S.2d 71, 72-73 [2nd Dept. 2003].   Basic economic loss means the first $50,000 in such items as medical expenses and lost earnings.   See Ins. Law § 5102[a].   Thus, when car registrants purchase automobile insurance policies, they know that they will not be liable for the basic economic loss of any persons injured as a result of a car accident because No-Fault will fully cover those damages.

 Therefore, contrary to plaintiff's argument, the fact that he did not receive any funds to compensate him for his lost wages is irrelevant because this is an action by a covered person against another covered person, and the prohibition against the recovery of the first $50,000 in basic economic loss in a tort action is absolute.   See Ins. Law § 5104[a];  Bisbee v. Independent Coach Corp., 182 A.D.2d 661, 582 N.Y.S.2d 255 [2nd Dept. 1992];  Stern v. Calzado, 163 A.D.2d 299, 300, 557 N.Y.S.2d 156 [2nd Dept. 1990];  Fiveson v. Kondenar, 110 A.D.2d 749, 488 N.Y.S.2d 46 [2nd Dept. 1985].   This means that under the No-Fault law, even a “seriously injured” plaintiff will only be liable to the injured party for any economic loss that exceeded $50,000 as well as for pain and suffering.   See Fischer v. Luczak, 198 A.D.2d 474, 475, 605 N.Y.S.2d 928, 929 [2nd Dept. 1993];  Ins. Law § 5104[a].   Quite simply, insured defendants are not guarantors of payment for monies that could have or should have been paid by the No-Fault portion of their policy, even if they are found responsible for the accident that caused the plaintiff a serious injury.

Clearly, had plaintiff's injury not occurred on the job, his sole avenue for recovering for his lost earnings would have been through No-Fault and he could not have recovered that $5,000 in this tort action.   The Court finds that the fact that plaintiff's injury occurred on the job, thereby making him eligible for Worker's Compensation benefits, does not take him outside the No-Fault law and entitle him to recover for basic economic loss in this action.   To hold otherwise would allow plaintiff a benefit not contemplated by the statutory scheme.   See, e.g., Dietrick v. Kemper Ins. Co., 76 N.Y.2d 248, 254, 557 N.Y.S.2d 301, 305, 556 N.E.2d 1108 [1990] (holding so as to avoid an “unintended and undesirable windfall” to the plaintiff).   In addition, the Court notes that Castleberry v. Hudson Valley Asphalt Corp., 70 A.D.2d 228, 420 N.Y.S.2d 911 (1979), the case cited by plaintiff for the proposition that the collateral source rule applies in Workers' Compensation cases, is inapposite because there the work-related injury did not arise out of a motor vehicle accident, and therefore No-Fault law never came into play.

For the foregoing reasons, that portion of the verdict awarding plaintiff $5,000 for lost earnings is hereby stricken.

This is the Decision and Order of the Court.

ARLENE P. BLUTH, J.