Mr. Five Boro takes a dive on this oneMay 24, 2012

Congratulations to my colleague James F. Sullivan, Esq., on this DJ victory in American Transit Ins. Co. v. Toussaint, Index #:  105931/11 (Sup. Ct. NY Co., Rankower, J.).  This is a Unitrin based DJ in Supreme, New York.  I will digress for a moment.

In the last 18 months, we have recorded some of our favorite oppositions.  I will share them with you by our favorite Defendants:

Mr. Five Boro: “you did not prove you mailed it”; “you did not prove he did not attend”; “Unitrin should not be followed”; and the Federal Arbitration Act precludes you from bringing this action.

Mr. Active Care Medical Supply Corporation: Same as above and: “There is no justiciable controversy (even though this fellow admits that he submitted claims in his answer)”; “Encare superseded Unitrin (stretching?)”; and “The life and times of some unknown attorney who presents the same affirmation in each case, with a new caption in each opposition, must result in the denial of your motion.” (a red herring which the former presiding Justice of the Appellate Term, First Department, Hon. Lucindo Suarez was not impressed with in American Transit v. Gibson, et. al. (Index #: 307797/11)(Sup. Ct. Bronx Co. 2012 [Suarez, J.])

Mr. City Care Acupuncture – and this one is great: cross-claims against the Assignor, counterclaims against us and this gentleman puts a notice in accordance with the FDCPA in his papers, I guess to protect himself from a federal lawsuit under 15 USC 1692-1692p.

Back to the post.  What makes this case interesting is that the Supreme Court applied NYP v. Countriwide, for the proposition that the failure to attend an IME/EUO voids the assignment and the policy:

“The Policy and NY Insurance Regulation § 68 provide that Plaintiff may request that an eligible injured person submit to an examination under oath when and as often as, the company may reasonably require, as a condition precedent to the disbursement of any benefits under the terms of the Policy, where there is a failure to comply with the terms of the policy, any assignment of benefits becomes worthless. (See, New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 2011 WL 4834479 [2011]). Inasmuch as Toussaint failed to comply with the terms and conditions of the policy by failing to appeal for an examination under oath, Toussaint did not have the right to assign benefits to any medical providers, including Five Boro and Village, because the right to benefits was not triggered in the first place.”

For the life of me, I never understood why somebody would get involved in Supreme Court litigation and not attempt to present tangible proof to oppose the motion.  A little footwork goes a long way.

11 Responses

  1. WTF says:

    If this ruling is correct, it will, ironically, be the death blow to Unitrin and possibly Fogel. I’m guessing many insureds received no notice whatsoever in the mail of the IME, and that will finally be exposed when they are required to litigate.

    Two letters sent via US mail, commonly in 9-point print only in English submitted to Spanish insureds with no solid proof of mailing requirements to protect against outright insurer fraud resulting in the total denial of all medical coverage regarding all existing injuries, RETROACTIVE TO DATE OF LOSS. Fogel/Unitrin deserve its own webpage so that as these insureds are joined to No-Fault actions where the insurer alleges condition violations, they will know exactly why.

  2. Kurt Lundgren says:

    JT – can there now be covered vs non-covered issues in a BI suit where the no-fault portion of the policy was made void?
    If so, Unitrin is a slippery slope on the liability side of the policy.

  3. mitchell lustig says:

    JT, this is a First Department case that has nothing to do with
    Lincoln General. Lincoln General is solid precedent in the Second Department, both the Appellate Division, Appellate Term and no-fault arbitrators in Nassau County.

    • JT says:

      Look at the cite for the proposition, inter alia, that a violation of a condition precedent voids the assignment of benefits and denies coverage to the assignor? This could have been written in any of the Four Judicial Departments.

  4. mitchell s. lustig says:

    One other point. In Continental Medical, the Appellate Term, First Department went out of the way to specify that the IME notices were properly and timely mailed, an often forgotten aspect of the decision in Unitrin.

  5. WTF says:

    “Gotcha papers.” Is that like Sarah Palin’s “gotcha journalism”?

    • JT says:

      Those were Justice McKeon’s words. Having appeared before him, I can attest that he is not once to hold back.

  6. mitchell lustig says:

    JT, I can see what you are saying. But NYP v. Countrywide does not stand for the proposition that an insurer can issue an untimely denial for a violation of a condition precedent to coverage. From my reading of the facts in NYP v. Countrywide,it appears that the insurer’s denial was timely. There is no doubt that in any department, an insurer can deny a claim retroactively to the date of loss for the breach of a condition precedent to coverage. The key issue is whether such a breach constitutes a lack of ooverage defense that is exempt from the preclusion rule. I do not think that NYP v. Countrywide overrules Chubb and holds that a denial based upon a breach of a condition precedent to coverage can be issued beyond 30 days. From reading of the case, the insurer’s denial still has to be timely. That is what no-fault is all about.

  7. mitchell lustig says:

    I did not finish my prior comments. This is what no-fault is all about. This the tradeoff of no-fault. The carrier can still deny “ill- founded, illegitimate and fraudulent claims but they must do so “within a short-leashed contestable period and process desingned to avoid prejudice and red-tape dilatory practices.” Presbyterian v. Maryland Casualty. This is bedrock no-fault law.

  8. WTF says:

    The 30-day rule is a “gotcha” rule? That’s not a good way for a no-fault judge to think.

  9. SB says:

    That ruling makes no sense, if you look at the language of the prescribed AOB form itself, in Appendix 13 to Regulation 68.