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Lack of causationAugust 10, 2019

Parisien v Allstate Ins. Co., 2019 NY Slip Op 51249(U)(App. Term 2d Dept. 2019)

” In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured, in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” “

For starters, this is collateral estoppel as to the Assignor (See Lobel v Allstate Ins. Co., 269 ..2d 502 [2000]). While the defendant in the BI case may never catch wind of this decision (and others like it), this could be deadly to the BI matter.

For the legal malpractice attorneys out there, does this constitute legal malpractice? Is there a duty from counsel to the medical provider to the EIP when this type of action is arbitrated or litigated? My own feeling is that that the Assignor probably had a competing rendition of events that was either recorded at an EUO, possibly given at an EBT or could have been obtained via affidavit.

Any thoughts.

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