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Nationwide took an ax to UnitrinNovember 18, 2018

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 (4th Dept. 2018)

(1) “We conclude that a defense premised upon nonappearance at an EUO is “more like a normal’ exception from coverage (e.g., a policy exclusion)” than one involving “a lack of coverage in the first instance (i.e., a defense implicat[ing] a coverage matter’)” (Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 [1982]), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage”

(2) “We further agree with defendant that, contrary to the court’s determination and Nationwide’s contention, our holding in Interboro Ins. Co. v Tahir (129 AD3d 1687 [4th Dept 2015]) is not controlling. The no-coverage exception to the preclusion remedy was not at issue and the insurer disclaimed coverage in that case; thus, it is factually distinguishable and legally unpersuasive inasmuch as the broad language regarding vitiation of the contract for failure to comply with a condition precedent was not central to the holding and did not account for the conceptual differences between types of conditions precedent (see id. at 1688).”

What saddens ms it that Tahir was my case.  It is also remarkable that the Court did not examine NYP v. C-Wide.  I also am upset that nobody sought to really delve into the policy language itself, and to contrast it with the notion of a condition precedent in other contexts.

The issue is one step closer to Court of Appeals scrutiny.

https://ad4.nycourts.gov/go/live/channel.asp?id={F23F2521-D06B-4824-8ADD-F51A30AD02B8}

Oral Argument Start time: 27:20

4 Responses

  1. Stefan belinfa says:

    This decIsion was exactly right. Under the first dep’s incorrect analysis, a single late bill Would also void the policy ab initio.

    • jtlawadmin says:

      I am annoyed. I am glad it is not my name on that opinion and order. But I have street credibility here since I did get the Fourth Department to honor Unitrin on 2015. Perhaps, I wish it was me who was taking a crack at this one.

  2. Lurker on the Threshold says:

    This is what happens when carriers try to use EUO no-shows as if they themselves are a reason to void coverage, rather than clearly setting forth a valid reason why the EUOs are necessary in order to ensure coverage. Call it putting the cart before the horse if you like – but the fact is that simply saying that an EUO is necessary isn’t going to be enough. If a carrier were to specify that an EUO was needed because, let’s say, there was no reported accident and no other notice was ever received aside from bills (i.e. the carrier really has no clue what is supposed to have happened), then the failure of the claimant to appear for the EUO means that the carrier was actually prevented from making any sort of informed determination that the accident did or did not happen. But that’s what has to be underscored, not blind repetition that the failure to appear vitiates coverage.

  3. Anonymous says:

    https://ad4.nycourts.gov/go/live/channel.asp?id={F23F2521-D06B-4824-8ADD-F51A30AD02B8} -go to 27:20

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