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PSYCHOLOGICAL INJURY UNDER THE SERIOUS INJURY REQUIREMENT OF THE INSURANCE LAW
By: MICHAEL A. CALLINAN, ESQ.

FOR THE DEFENSE


PSYCHOLOGICAL INJURY UNDER THE SERIOUS INJURY REQUIREMENT OF THE INSURANCE LAW

BY: MICHAEL A. CALLINAN, ESQ.



Recently, a plaintiff’s attorney in a standard automobile negligence case presented a novel issue to me: can a plaintiff sustain a serious injury under the meaning of section 5102(d) of the Insurance Law by claiming only a “psychological” injury.

Every case dealt with up to this point in time always included the standard post traumatic stress disorder claim or some other standard post-accident emotional disorder in addition to other cognizable physical injuries. But a claim of a serious injury based solely on a psychological injury, clearly this could not be within the meaning of the Insurance Law.

A little bit of research later and I was shocked to learn that the courts actually can recognize a psychological condition as a serious injury; albeit, not that often and with a lot of documentary support. See Chapman v. Capoccia, 283 A.D.2d 798 (N.Y. App. Div. 3rd Dept. 2001).

The majority of the research on this matter proved beneficial for the defense. In Poblet v. Parisi, 496 N.Y.S.2d 936 (N.Y. Sup. Ct. Queens County 1985), the trial term held that “an injury which is claimed to be psychiatric and/or psychological and which does not arise from any objective organic injury sustained in an accident is highly subjective in nature.” Id. at 939. In Nolan v. Ford, 100 A.D.2d 579 (N.Y. App. Div. 2nd Dept. 1984), affrm’d 64 N.Y.2d 681 (N.Y. 1984) the Second Department held that a claimed psychiatric injury is insufficient to establish a serious injury under the Insurance Law. See generally, Mazzotta v.Vacca, 289 A.D.2d 305, 306 (N.Y. App. Div. 2nd Dept. 2001) (holding that a plaintiff failed to sustain a showing of a serious injury by submitting alleged evidence in support of a psychological condition). So far, so good.

In Sellitto v. Casey, 268 A.D.2d 753 (N.Y. App. Div. 3rd Dept 2000) the Appellate Division, Third Department provided the best outline of what a plaintiff would need to establish a serious injury from a psychological condition. The Court in Sellitto affirmed a dismissal of a complaint even after the plaintiff submitted evidence that the plaintiff received 29 treatment sessions with a psychiatrist. In order to establish a showing of a psychiatric injury, the plaintiff needs to provide an objectively measured quantum of evidence necessary to satisfy a showing of a serious injury. See also, Bissonette v. Compo, 307 A.D.2d 673 (N.Y. App. Div. 3rd Dept. 2003).

Luckily for the defense in this matter, the plaintiff actually had no medical or competent evidence to support the claim of a psychological injury.

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