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The existence of a workers compensation award is lack of coverageNovember 19, 2018

Active Care Med. Supply Corp. v Hartford Ins. Co., 2018 NY Slip Op 51591(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its motion, and by plaintiff in support of its cross motion, established that plaintiff had submitted claims for workers’ compensation benefits and that the Workers’ Compensation Board had awarded plaintiff’s assignor workers’ compensation benefits [*2]for injuries she had sustained in the accident at issue. As plaintiff failed to demonstrate the existence of a triable issue of fact, the order is affirmed.”

This changes the calculus a bit.  While the existence of Workers Compensation coverage is precludable, the actual proof and fact of the workers compensation coverage is a coverage defense.  In actuality, the regulation states that Workers Compensation Coverage is the only type of coverage that will pay medical billings when the choice is between No-Fault and Compensation.  But, the Second Department has held it is an offset.  Perhaps as to lost wages, but not as to medical billings.

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