Lost Wages Not Proven Within a Reasonable Degree of Certainty: Freligh v GEICO and the Unemployed Claimant Problem

Key Takeaways

• In Freligh v GEICO, a divided Third Department (3-2) dismissed a no-fault lost earnings claim brought by a claimant who was unemployed at the time of the accident but claimed income from a pre-accident job offer.
• The majority found, on documentary evidence, deposition testimony, and FOIL responses, that the claimed job opportunity was unreasonable as a matter of law.
• The dissent would have affirmed: viewing the evidence in the light most favorable to the non-movant, a rational fact finder could find the job legitimate.
• Lost wages must be proven with reasonable certainty — projections built on speculative future employment are where these claims die.

Lost earnings is the sleeper issue of New York no-fault law: the medical-bill side is mapped to the inch, while the wage side is sparsely litigated and doctrinally undeveloped. Freligh is a rare appellate decision engaging the hardest version of the problem — the claimant who was not working when the accident happened.

The Decision

Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017)

Admittedly, I like the issue of lost wages. I am convinced few practitioners understand all the nuances involved – I will not say more. It is clearly an undeveloped area of no-fault law and seemingly all over the place. Perhaps that is why I bring these actions or arbitration – they are intellectually entertaining at times.

A firm upstate I tried a case involving medical bills (one week jury trial in Kingston) leads the charge on these cases. Their results are quite good. This one ended in a 3-2 decision ending in dismissal. I hope Derek takes it up to the Court of Appeals, because it looks like a fascinating case.

The cliff-notes version of this case is that the EIP was unemployed when the accident occurred. Prior to the accident, he was offered a job to run a parts plant. He was unable to do so because of his accident. The EIP projected a certain income on his claim forms.

The defense and the basis for summary judgment was that the job opportunity was a farse. Various pieces of evidence, including documentary, deposition and FOIL responses proved (in the eyes of the Court) that the sought after job opportunity was unreasonable as a matter of law and Plaintiff’s claim of income at this job lacked legal merit. The Court reversed Supreme Court and dismissed the complaint.

The dissent stated viewing the evidence in the light most favorable to the non-moving party, a rational fact finder could find the job opportunity legitimate and would have affirmed.

If this goes to the Court of Appeal, it is hard to figure out where they will go with this one.

The Legal Framework: Lost Earnings Under the No-Fault Statute

First-party no-fault benefits under Insurance Law § 5102(a) include loss of earnings from work, subject to the statutory monthly cap and duration limits. For a W-2 employee with a payroll history, proof is mostly clerical: wage verification from the employer, claim forms, disability documentation.

The doctrine gets interesting at the margins. The governing evidentiary principle — imported from the broader damages law of lost earnings — is that the loss must be established with reasonable certainty, not speculation. An employed claimant proves what he was earning. An unemployed claimant must prove what he would have earned, forcing a court to evaluate the reality of a job that never started — an invitation to exactly the credibility and documentation fight Freligh became.

Why the 3-2 Split Matters

The procedural posture makes the division notable. This was the carrier’s summary judgment motion, where the evidence is viewed in the light most favorable to the claimant. The majority was nonetheless persuaded — by documents, depositions, and FOIL responses — that the promised plant-management job was not real enough to support a wage claim as a matter of law. The dissent’s point was institutional: deciding that a job offer was a sham sounds like a jury’s job, not a motion court’s.

A 3-2 decision also carried an appeal as of right to the Court of Appeals — hence the original post’s interest in the next step. The split illustrates how unsettled the proof standards are when a prima facie case for lost earnings rests on projected rather than historical income.

Why This Matters for Claimants, Carriers, and Counsel

For claimants, Freligh is the cautionary tale: a wage claim premised on future employment must be papered like a business transaction. An offer letter, corroborating testimony from the would-be employer, and a coherent story that survives document discovery are the minimum. Inconsistencies exposed through FOIL responses and depositions sank this claim.

For carriers, the decision validates aggressive claim investigation on outlier wage claims. The defense was built from documents, depositions, and public-records requests — a template for testing any projected-income claim before paying it.

For litigators, note the larger landscape: New York’s May 27, 2026 auto tort reform eliminated the 90/180-day serious-injury category — the threshold category most intertwined with proof of lost work time — for Article 51 cases commenced on or after the effective date. First-party wage claims under § 5102(a) remain, and remain as undeveloped as ever.

Practice Pointers

• Document the job before claiming the wages. A projected-income claim with no contemporaneous paper trail is a summary judgment target.
• Expect FOIL and public-records investigation. Carriers can and do verify the existence and finances of the claimed employer.
• Carriers: build the record, not the adjective. Freligh’s defense won on accumulated documentary contradictions, not on calling the claim a sham.
• Watch the forum. Lost wage disputes can proceed in court or no-fault arbitration; the developed record that wins a 3-2 appellate decision is harder to assemble in arbitration’s compressed format.

Related Resources

• A formulation of a prima facie case — the firm’s cluster hub on prima facie proof in no-fault litigation
• The firm’s Legal Encyclopedia
• Personal Injury practice
• Lost Wages Claims in New York: Avoiding Job Abandonment Pitfalls
• Loss of Earnings
• Lost wage case reinstated
• EUO/EBT/ Now I know how much Mr. Moshe makes!

Frequently Asked Questions

Can I claim lost wages from no-fault if I was unemployed when the accident happened?

It is possible but difficult: you must prove with reasonable certainty the income you would have earned, typically from a specific, documented job you were about to begin. As Freligh v GEICO shows, a court can dismiss the claim if the job opportunity was not realistic.

What does “reasonable degree of certainty” mean for lost earnings?

It means the claimed loss must rest on concrete proof — employment history, wage records, or solid documentation of imminent employment — rather than speculation about income that might have materialized. Projections without corroboration generally fail.

How do insurance carriers investigate lost wage claims?

Through wage verification, examinations under oath, depositions, document demands, and public-records requests such as FOIL. In Freligh, that combination convinced the Third Department that the claimed job was unreasonable as a matter of law.