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Workers Comp July 24, 2019

Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co., 2019 NY Slip Op 51150(U)(App. Term 2d Dept. 2019)

“Defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). ” ‘Since primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'”

An objective standard is not necessary July 24, 2019

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51158(U)(App. Term 2d Dept. 2019)

“This court has held on multiple occasions that since the Appellate Division, Second Department, stated that an insurer need only establish as a matter of law that it twice duly demanded an EUO from the provider that the provider twice failed to appear, and that the insurer issued a timely denial of the claims, an insurer does not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law”

Material misrepresentation July 24, 2019

Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co., 2019 NY Slip Op 51157(U)(App. Term 2d De

“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, prima facie, that the misrepresentation by plaintiff’s assignor was material.”

“What is noteworthy is that recent trend on fraudulent procurement has taken a turn to Ins Law 3105 and the Fatima case.”

Jurisdiction defenses need to specific July 24, 2019

Masigla v Windhaven Ins. Co., 2019 NY Slip Op 51169(U)(App. Term 2d Dept. 2019)

He wrote the book, but who wrote the answer? I am not quitting my day job anytime soon…

It appears that an innocent error in an answer could produce grave results for the insurance carrier.

“As to defendant’s second argument, there is no need to consider whether defendant’s claimed lack of contacts with New York might raise an issue of personal, rather than subject matter, jurisdiction, since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that [*2]the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at 649; Osserman v Osserman, 92 AD2d 932 [1983]).”

Personally, I think the Court court have construed that the summons was not properly served as a general personal jurisdiction defense. Not sure I agree with this Court’s holding, but my name is not on the order nor is my name Paul Kenny and my opinion does not really count.

The second basis for the decision is absolutely correct and is a lesson to everyone who tries to play the deemer does not apply to us game.

” Finally, even if, as defendant claims, it is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant did not demonstrate that its policy did not provide such coverage, and, therefore, defendant did not demonstrate its entitlement to judgment as a matter of law.”

The reason as many of you coverage geeks know is that many insurance policy contains an out of state deemer provision in the insurance contract. This is separate and apart from Ins. Law 5107. Thus, absent presenting the contract of insurance, the Court properly found denied the motion as all triable issues of fact have not been eliminated.

After the DJ July 24, 2019

Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 2019 NY Slip Op 51098(U)(App. Term 2d Dept. 2019)

This case answers a question some have properly asked. At what point do the Assignee medical providers not have to be named in the underlying declaratory judgment in order for a declaration of non-coverage to be binding on the that party.

The general rule is the Magic rule, which states that res judicata will not attach to an declaratory judgment when a medical provider is not named in a DJ action. The corollary to this rule is the Astoria v. State Farm rule which says that a fully contested jury trial in a third-party negligence action involving the assignor will be collateral estoppel on the issue of non contact in an assigned first-party action despite the medical provider not having the opportunity to participate in the third-party action.

Now we have the Valdan Acupuncture rule.

” Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., [*2]140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as the injured party’s assignment to plaintiff was made on September 21, 2011, after the commencement in August 2011 of the declaratory judgment action, plaintiff is deemed to be in privity with the assignor and “charged with notice that [its] rights to the assignment are subject to the competing claim” (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 487 [1979]). “

And I am unsure if it is irony or serendipity but my good friend Gary T was involved in all three of these cases. I guess he owns all aspects of this issue. Oleg Rybak cannot own every IME/EUO/DJ issue.