It was not the partner affirmation this timeJune 29, 2017

Island Life Chiropractic, P.C. v Commerce Ins. Co., 2017 NY Slip Op 50856(U)(App. Term 2d Dept. 2017)

“Defendant’s motion sought summary judgment on the ground that the amount of available coverage had been exhausted. Although the insurance policy had been issued in Massachusetts, defendant acknowledged that, pursuant to New York law, the insurance policy provided $50,000 in personal injury protection benefits. Defendant further contended that claims exceeding $50,000 had been received and that defendant had paid $50,000 in accordance with 11 NYCRR 65-3.15. However, defendant failed to establish, as a matter of law, an exhaustion of the [*2]coverage limits of the insurance policy at issue, as defendant did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.”

My thought here is straight forward.  We all agree that the Massachusetts $10,000 PIP policy was deemed to $50,000 because the accident occurred in New York.  Does this mean that 65-3.15 applies?

Defendant for reasons I will never understand stated that claims were paid in accordance with 65-3.15.  By doing this, counsel for the carrier kicked down the door in this case, begging a court to apply priority of payment rules and, therefore, allowing a finding that coverage exceeding the policy maximum could be afforded.

The correct argument appears to be that under a choice of law analysis, Massachusetts law applies to the $50,000 coverage limit.  Therefore, once $50,000.00 in coverage is exhausted, there is nothing left on the policy.  That is because except for New York, no other state (absent bad faith) ever requires an insurance carrier to pay more than the monetary limits of a policy under so-called “priority of payment”

Now, Commerce n/k/a Mapfre will go over policy.   Leave it to Rybak to torture people.


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