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An allegation of a staged accident will not result in the granting of an insurance carrier’s summary judgment motion November 26, 2009

There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional.  So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of limited precedential value.  I would normally not post a case like this except I like how the Appellate Term quoted the decision of the District Court, that it was modifying:

“The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that'[t]his has all the indicia of a staged accident.’  The instant appeal by plaintiff ensued.”

“Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint.”

An allegation of a staged accident will not result in the granting of an insurance carrier's summary judgment motion November 26, 2009

There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional.  So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of limited precedential value.  I would normally not post a case like this except I like how the Appellate Term quoted the decision of the District Court, that it was modifying:

“The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that'[t]his has all the indicia of a staged accident.’  The instant appeal by plaintiff ensued.”

“Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint.”

I was there but I never hit you November 26, 2009

In another case involving the defense of lack of contact with a pedestrian, the Appellate Term in Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U)(App. Term 2d Dept. 2009) affirmed the order of the Civil Court that granted the insurance carrier summary judgment, dismissing the complaint.  The pertinent parts of the affidavit of the insured that was found to be sufficient to make a prima facie case of lack of involvement was as follows:

“[d]efendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.”

Concerns about the use of a first-party no-fault IME to support a third-party defendant’s summary judgment motion November 24, 2009

In the dissenting opinion of Rowe v Wahnow, 2009 NY Slip Op 29475 (App. Term 1st Dept. 2009), Justice McKeon discusses why he believes it is inappropriate for a defendant in a third-party lawsuit to solely rely on a no-fault IME of a plaintiff, to defeat said plaintiff’s serious injury claim (Ins Law 5102[d]).   He gives a few reasons why the use of a no-fault IME on its own in non-suiting a 5102(d) Plaintiff is inappropriate.

  • A no-fault IME is non-adversarial, whereas an IME in the context of a lawsuit is adversarial;
  • The IME in a first-party no-fault case is geared towards future medical treatment and compensability of wages, whereas an IME as a discovery device that is utilized during a lawsuit is solely to determine whether the Claimant breached sthe serious injury threshold;
  • The third-party defendant gets numerous bites at the apple since the insurance carrier in the first-party case can demand IME’s as often as the carrier may require.

While Justice McKeon’s opinion raises laudable goals, he fails to address the fact that the Appellate Divisions have already held that there are tremendous collateral estoppel consequences that emanate from a Claimant’s (or his or her assignee) unsuccessful pursuit to obtain contested first-party benefits.   As regular readers are aware, a finding of lack of causal relation in the no-fault context will spell the end of the Claimant’s third-party lawsuit  (Lobel v. Allstate, 269 AD2d at 502 [2d Dept. 2000]).   A finding that future services lack medical reasonableness will under many circumstances impair, if not knock out, the significant limitation and permanent consequential categories of the 5102(d) categories, leaving many times the 90/180 category as the only viable method to breach the serious injury threshold.  (c. f., Barnet v. Ives, 265 AD2d 865 [4th Dept. 1999]).

Writing on a clean slate, Justice McKeon’s argument has merit.  He raises many points that should not be taken lightly.  But, the law as it has developed renders his opinion nothing more than a good article for a law journal or law review.  I earnestly wonder, however, if the purposes of his dissent was to attempt to force the bar to contemplate the interrelation between no-fault actions and personal injury actions.

Dave Gottlieb over at NFP has a very interesting take on this issue.

Concerns about the use of a first-party no-fault IME to support a third-party defendant's summary judgment motion November 24, 2009

In the dissenting opinion of Rowe v Wahnow, 2009 NY Slip Op 29475 (App. Term 1st Dept. 2009), Justice McKeon discusses why he believes it is inappropriate for a defendant in a third-party lawsuit to solely rely on a no-fault IME of a plaintiff, to defeat said plaintiff’s serious injury claim (Ins Law 5102[d]).   He gives a few reasons why the use of a no-fault IME on its own in non-suiting a 5102(d) Plaintiff is inappropriate.

  • A no-fault IME is non-adversarial, whereas an IME in the context of a lawsuit is adversarial;
  • The IME in a first-party no-fault case is geared towards future medical treatment and compensability of wages, whereas an IME as a discovery device that is utilized during a lawsuit is solely to determine whether the Claimant breached sthe serious injury threshold;
  • The third-party defendant gets numerous bites at the apple since the insurance carrier in the first-party case can demand IME’s as often as the carrier may require.

While Justice McKeon’s opinion raises laudable goals, he fails to address the fact that the Appellate Divisions have already held that there are tremendous collateral estoppel consequences that emanate from a Claimant’s (or his or her assignee) unsuccessful pursuit to obtain contested first-party benefits.   As regular readers are aware, a finding of lack of causal relation in the no-fault context will spell the end of the Claimant’s third-party lawsuit  (Lobel v. Allstate, 269 AD2d at 502 [2d Dept. 2000]).   A finding that future services lack medical reasonableness will under many circumstances impair, if not knock out, the significant limitation and permanent consequential categories of the 5102(d) categories, leaving many times the 90/180 category as the only viable method to breach the serious injury threshold.  (c. f., Barnet v. Ives, 265 AD2d 865 [4th Dept. 1999]).

Writing on a clean slate, Justice McKeon’s argument has merit.  He raises many points that should not be taken lightly.  But, the law as it has developed renders his opinion nothing more than a good article for a law journal or law review.  I earnestly wonder, however, if the purposes of his dissent was to attempt to force the bar to contemplate the interrelation between no-fault actions and personal injury actions.

Dave Gottlieb over at NFP has a very interesting take on this issue.