MVAIC continues to dig its grave at the Appellate DivisionOctober 8, 2010
Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C., 2010 NY Slip Op 07111 (1st Dept. 2010)
Sometimes, you win the battle but lose the war. The best instance of that paradox in no-fault practice involved the Appellate Division’s holding in Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 (1st Dept. 2010), when that Court, after handing MVAIC a victory, stated the following: “We would add that the burden is on MVAIC to prove its lack-of-coverage defense.”
Then came Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 28 Misc 3d 141(A)(App. Term 1st Dept. 2010), where the Appellate Term, First Department, held the following: “In opposition, defendant, which bore the burden of proving its lack of coverage defense, failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff’s assignor’s loss arose from the use or operation of an uninsured motor vehicle”.
Now, the saga continues with Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C.2010 NY Slip Op 07111 (1st Dept. 2010), where MVAIC was trying to prove a lack of coverage through averring that the Assignor resided in a household where Allstate provided coverage. Procedurally, MVAIC sought to adjourn the case in order to provide this evidence. The adjournment was denied and an award in Respondent’s favor was granted.
A common theme through all of these cases is that MVAIC is trying to get around certain claims handling issues through asserting the special “coverage defense” it has that no other insurance carrier enjoys. Why MVAIC does not consistently clear up these coverage issues through seeking timely verification requests is beyond me. Also, why doesn’t MVAIC submit certified insurance expansion reports?
In my opinion, it appears to me that the courts, especially in the First Department, are sending a message to MVAIC that they need to play by the rules that the rest of us on the defense bar are forced to abide by.