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State Farm and Georgia – passes Appellate Term scrutiny June 3, 2018

Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 50736(U)(App. Term 2d Dept. 2018)

I kept hearing musings about how State Farm’s receiving mail in Georiga and processing denials/payments/verifications and other CSO’s was somehow fatal to the timeliness of the disclaimer, verification or payment.  The usual “how do we know” line was also brought up.  But at the end of the day, State Farm processes its incoming mail through a modern 21st century system, logs its receipt and then sends its outgoing mail in a proper “Non-Allstate” and “Non-Progressive” manner.  Read the John Niles Allstate affidavit (old version) or the Appellate Division Progressive case for context to this comment.

I know Maiga was trying to bank on the Westchester v. Philadelphia case, but the facts just do not add up in the STate Farm context.

In any event, the mailing challenge was properly defeated.

“The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “[defendant’s] procedure for receipt of the bills in Georgia and processing and transmittal to and in [defendant’s] Ballston Spa [office].” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.”

“[W]e note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact.”

The Unitrin/ Westchester split June 3, 2018

Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 50739(U)(App. Term 2d Dept. 2018)

Oh its’s real. “Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground ”

Shout out to former no-fault attorney Irena Golodkeyer on her brief.  Rumor tells me that she has found greener pastures in the world.

Material Misrepresentations – Must follow the Ins Law 3105 rule June 3, 2018

Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co., 2018 NY Slip Op 50741(U)(App. Term 2d Dept. 2018).

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal [*2]quotation marks and citations omitted]).

Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate that the misrepresentation by plaintiff’s assignor was material.”

Clearly, Amerirpise thought it could avoid handing over the underwriting file.  For non AIP cases, these is fatal.  For AIP cases, I have learned that the rates are determined on a pre-set State schedule based upon residence.  Thus, you do not see the “underwriting file” play much of a role on those types of cases.  I suspect Ameriprise knew better, and almost slipped a fast one by the Courts.

Out of scope – out of mind May 24, 2018

Galluccio v Grossman, 2018 NY Slip Op 03664 (2d Dept. 2018)

“In opposition, the affirmation of the plaintiffs’ expert failed to raise a triable issue of fact. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [internal quotation marks and citations omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. The affirmation, therefore, lacked probative value, and failed to raise a triable issue of fact (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831). Accordingly, the Supreme Court should have granted the motion of Friedman and Island Medical for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.”

Degeneration from the App Div May 22, 2018

Campbell v Drammeh,  2018 NY Slip Op 03643 (1st Dept. 2018)

In opposition, plaintiff failed to raise an issue of fact as to his claimed spinal injuries, since he submitted no opinion about whether those injuries were caused by the accident, rather than degeneration (see Walker, 132 AD3d at 478—79), and no evidence of treatment (see Pommells, 4 NY3d at 572). As for his right shoulder claim, plaintiff’s orthopedic surgeon opined before performing surgery that any injuries were causally related to the accident. However, he failed to address or explain either the findings in plaintiff’s own MRI of hypertrophic changes and of no acute fracture or dislocation. He also did not address his own operative finding of bursitis (see Franklin v Gareyua, 136 AD3d at 465-466; Walker, 132 AD3d at 478—479). Moreover, plaintiff provided no explanation for his complete cessation of treatment after the surgery (see Pommells, 4 NY3d at 574; Baez v Rahamatali, 24 AD3d 256 [1st Dept 2005], affd 6 NY3d 868 [2006]; Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]).