There is no policy of insurance in effect – the standard is set forth belowAugust 20, 2014
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51240(U)(App. Term 2d Dept. 2014)
“Despite plaintiff’s contention to the contrary, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident”
This is a good case because the briefs that i get from certain firms state that an exhaustive search is necessary to determine that there is no policy of insurance in effect. While a conclusory “I looked and saw nothing might not be sufficient”, there is no need to go into the intricate detail of underwriting. A happy medium – 2 paragraphs – should do the trick.
The Appellate Term seems to be in a world of its own when they cite their own decisions for their own propositions that are unsupported by any substantive and persuasive authority. A simple Lexis or Westlaw search of any Appellate Division case law would reveal that the Appellate Term is wrong.
The Appellate Division, Second Department has held that an insurance carrier alleging that it did not issue the policy in question must provide evidence of an “exhaustive search of its records disclosing that no insurance policy was issued to the vehicle in question” in order to rebut the presumption of coverage. Matter of Travelers Indem. Co. v. Machado, 28 A.D.3d 569 (2d Dep’t 2006); Marsala v. Travelers Indem. Co., 50 A.D.3d 864 (2d Dep’t 2008). This requires more than a mere name search and should include cross-referencing the name of the insured with other information available to the insurance carrier. Brogan v. New Hampshire Ins. Co., 250 A.D.2d 562 (2d Dep’t 1998).
Where the only evidence provided by the defendant is an affidavit from its own representative stating that it did not issue the policy in question, that would be insufficient under Second Department case law requiring the carrier to demonstrate that it conducted an “exhaustive search.” This would be especially true where the plaintiff provider can establish prima facie that the defendant insured the vehicle, such as by submitting the police report identifying the defendant as the insurance carrier or through DMV records. See Eagle Ins. Co. v. Olephant, 81 A.D.2d 886 (2d Dep’t 1981).
Once again Appellate Term is creating contrary law and is refusing to follow Appellate Division. See Mountain View Coach Lines v Storms, 102 A.D.2d 663 (2d Dep’t, 1984).