The declaratory action was properly stated

High Definition MRI, P.C. v Liberty Mut. Holding Co., Inc., 2017 NY Slip Op 01799 (1st Dept. 2017)

“Contrary to the motion court’s conclusion, the breach of contract action against defendants Liberty Mutual Holding Company, Inc., Liberty Mutual Insurance Company, Safeco Insurance Company of America, Inc., and Indiana Insurance Company provides adequate notice of the transactions and occurrences intended to be proved (see CPLR 3013), and the cause of action for a declaration that defendants’ claim-handling processes are unlawful and that plaintiff is properly incorporated states a cause of action for declaratory relief (see State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010 [2d Dept 2011]).”

The discovery on this case is going to absolutely brutal, and I sense a settlement is coming

The actionable violation of 3.2(b)

Integral Assist Med., P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50103(U)(App. Term 2d Dept. 2017)

“There is no merit to plaintiff’s argument on appeal that defendant “clearly took an adversarial position” during claims processing in violation of 11 NYCRR 65-3.2 (b).”

Assume that Defendant did take an adversarial role in the claims processing.  What would happen at that point?  The case on point states that a violation of 3.8(b)(4) is an administrative issue, not one that leads to preclusion due to its violation.  Does a violation of 3.2(b) lead to the same result?  Or, does this violation allow (under the right circumstance) an extra-contractual claim or a GBL 349 claim?  The case law will have to be further developed.

My thinking is that a violation of 3.2(b) is not enough to impact a first-party no-contractual claim.  But, this falls into the gambit of 349 and under certain extreme circumstances, bad faith.

The bad faith boondoggle that we knew was coming

Gutierrez v Government Empls. Ins. Co.,  2016 NY Slip Op 01292 (2d Dept. 2016)

I would put this in the pile with “Permanent General” and “Matter of Allstate Prop. & Cas. Ins. Co. v New Way Massage Therapy P.C.”.

“This case arises from a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits relating to a motor vehicle accident. The complaint alleges that on February 21, 2010, the plaintiff was operating a vehicle that was insured by the defendant Government Employees Insurance Company (hereinafter GEICO), with the permission of the vehicle’s owner. The vehicle collided with a vehicle insured by Allstate Insurance Company (hereinafter Allstate), allegedly causing the plaintiff serious injuries as defined in Insurance Law § 5102(d), and property damage. The plaintiff alleged that he would incur future medical expenses “in any effort to be cured” and would be “unable to pursue [his] usual duties with the same degree of efficiency as prior to this accident.”

Allstate tendered its policy limits of $50,000 in settlement of the plaintiff’s claim, which the plaintiff contends was insufficient to make him whole. Therefore, the plaintiff made a claim under the SUM endorsement to the GEICO policy. The plaintiff alleges that GEICO unreasonably refused to pay the claim.

In July 2014, the plaintiff commenced this action, asserting three causes of action. The first cause of action, sounding in breach of contract, demanded payment of the SUM benefits. The second cause of action sought damages in tort for GEICO’s alleged breach of “its duty to act in good faith” by unreasonably withholding payment of SUM benefits. The third cause of action alleged that GEICO “breached its contract and/or policy, and absolute duties and obligations to the Plaintiff and its insureds.”

GEICO moved pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action in the complaint for failure to state a cause of action. It argued, inter alia, that if the second and third causes of action sounded in breach of the implied covenant of good faith and fair dealing, that covenant was implicit in every contract, and therefore those causes of action were duplicative of the cause of action sounding in breach of contract. In the order appealed from, the Supreme Court denied GEICO’s motion on the ground, inter alia, that the second and third causes of action were not duplicative of the cause of action sounding in breach of contract.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is afforded a liberal construction, and the court must give the plaintiff the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Caravello v One Mgt. Group, LLC, 131 AD3d 1191). The second cause of action alleges a failure to act in good faith. Implicit in every contract is an implied covenant of good faith and fair dealing (see Elmhurst Dairy, Inc. v Bartlett Dairy, Inc., 97 AD3d 781, 784). The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct (see Moran v Erk, 11 NY3d 452, 456; 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153; Atlas El. Corp. v United El. Group, Inc., 77 AD3d 859, 860). Such a cause of action is not necessarily duplicative of a cause of action alleging breach of contract (see Elmhurst Dairy, Inc. v Bartlett Dairy, Inc., 97 AD3d at 784).

An insurance carrier has a duty to “investigate in good faith and pay covered claims” (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 195). Damages for breach of that duty include both the value of the claim, and consequential damages, which may exceed the limits of the policy, for failure to pay the claim within a reasonable time (see Panasia Estates v Hudson Ins. Co., 10 NY3d 200, 203; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 195). Such a cause of action is not duplicative of a cause of action sounding in breach of contract to recover the amount of the claim (see Michaan v Gazebo Hort., Inc., 117 AD3d 692; Genovese v State Farm Mut. Auto. Ins. Co., 106 AD3d 866, 868). Such consequential damages may include loss of earnings not directly caused by the covered loss, but caused, instead, by the breach of the implied covenant of good faith and fair dealing (see Mutual Assn. Adm’rs, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 118 AD3d 856). The second cause of action states a claim for consequential damages for breach of the implied covenant of good faith and fair dealing. Therefore, that branch of GEICO’s motion which was to dismiss that cause of action was properly denied.”

Sanctioned for good reason?

Sanctioned for frivolity or ignorance?

Ultimate Health Prods., Inc. As Assignee of Ansel Leslie v American Tr. Ins. Co., 2015 NY Slip Op 87796(U)(App. Term 2d Dept. 2015)

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $1500 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, the Law Office of Daniel J. Tucker, counsel for respondent, shall pay a sanction in the sum of $500 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

Under the circumstances, the failure of either counsel to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions against counsel in the amounts indicated. It is noted with respect to the amount assessed against appellant’s counsel, the court considered that The Rybak Firm, PLLC, has repeatedly violated the aforesaid rule, and for a second time, failed to respond at all to the court’s order to show cause.

Compas Med., P.C. As Assignee of David Perez v American Tr. Ins. Co., 2015 NY Slip Op 87797(U)(App. Term 2d Dept. 2015)

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $1250 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, the Law Office of Daniel J. Tucker, counsel for respondent, shall pay a sanction in the sum of $500 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

Under the circumstances, the failure of either counsel to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions against counsel in the amounts indicated. It is noted with respect to the amount assessed against appellant’s counsel, the court considered that The Rybak Firm, PLLC, has repeatedly violated the aforesaid rule.

_____________________________________________________

Apparently, Rybak is a recidivist so he was hit with a progressively larger fine in both cases.  I think he will be shooting for $10,000 per case by next year.  But, keep your eyes open for Tucker’s firm.  They may reach the $1,500 per case sanction by next year.

 

 

Some fines issued

Longevity Med. Supply, Inc. As Assignee of Osmanli Tamezan v American Tr. Ins. Co., 2015 NY Slip Op 76854(U)(App. Term 2d Dept. 2015)

Appellant Longevity Medical Supply, Inc. as Assignee of Osmanli Tamezan, having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated August 15, 2012, and appellant and respondent having attended a Civil Appeals Management Program (CAMP) conference on October 25, 2012, and appellant having perfected the appeal on March 7, 2013, and respondent having filed its brief on March 22, 2013, the appeal was noticed for a submission calendar on January 7, 2015. On January 26, 2015 a Stipulation Withdrawing Appeal, signed both parties (signed by respondent’s attorney on January 20, 2015) was filed with this court. An examination of the records of the Civil Court having revealed that the underlying action was settled on or before July 2, 2014, more than 6 months earlier. By order to show cause dated April 16, 2015, counsel for the parties were directed to show cause why an order should or should not be made and entered imposing such sanctions as the court may deem appropriate pursuant to the Rules of the Appellate Terms, Second Department (22 NYCRR) § 730.3 (f) upon the parties or their respective counsel.

Upon the order to show cause and the papers filed on behalf of respondent only, it is

ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $1000 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that within 20 days after service of a copy of this decision and order on motion upon him, Netanel Benchaim, Esq., of counsel to the Law Office of Daniel J. Tucker, counsel for respondent, shall pay a sanction in the sum of $250 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§ 130-1.1[b]; 130-1.3); and it is further,

ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon each counsel by regular mail; and it is further,

ORDERED that within 10 days after payment of their respective sanctions, counsel shall each file proof of payment of its sanction with the Clerk of this Court.

The rules of this court provides, in relevant part, that “[i]f an appeal or the underlying action or proceeding is wholly or partially settled … the parties or their counsel shall immediately notify the court. Any attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of costs and/or sanctions as the court may direct” (Rules of the Appellate Terms, Second Department [22 NYCRR] § 730.3 [f]).

Under the circumstances, the failure of The Rybak Firm, PLLC, to promptly advise this Court that a settlement had been reached and that the appeal should not be calendered warrants the imposition of sanctions against appellant’s counsel in the amount indicated. It is noted with respect to the amount assessed against appellant’s counsel, the court considered that The Rybak Firm, PLLC, has repeatedly violated the aforesaid rule and submitted no response to the court’s order to show cause in this matter.

The court’s rule does not absolve respondent’s counsel from responsibility for failing to timely notify the court of the settlement. Respondent’s counsel’s “belief” that appellant’s counsel would file the stipulation of settlement is inadequate to deflect counsel’s duty under Rule 730.3 [f].

I think everyone should have had to pay $1,000.  I just hope counsel for defendant submits an invoice to defendant for the $250 he has to pay and follows up for payment.

Bad faith

General Motors Acceptance Corp. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 02384 (1st Dept 2014)

The motion court erred when it denied defendant insurer’s motion for summary judgment where plaintiffs, defendant’s insured and the excess insurer, failed to raise an issue of fact. The record does not present conduct that constitutes a “gross disregard” by defendant of plaintiffs’ interests (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453-454 [1993]). We reject plaintiffs’ argument that defendant avoided acknowledging the underlying plaintiff’s potential damages such that a refusal to offer the policy limit constituted a reckless or conscious disregard of the excess insurer’s rights. While there was some indication that damages could be significant if the medical records substantiated the underlying plaintiff’s claim of a loss of smell from a severe blow to the head, the record established that defendant’s investigation presented a great deal of medical evidence tending to show that the underlying plaintiff’s injuries were primarily preexisting soft tissue injuries unrelated to the automobile accident on April 24, 1994. Defendant’s investigation included the medical opinion of four physicians that conducted independent medical examinations; one psychologist who conducted a review of the extensive medical records; experienced defense counsel; and separate monitoring counsel for the damages trial. The review of the numerous medical records, which included contradicting evaluations of the underlying plaintiff’s treating physicians, provided a justifiable basis to fairly evaluate potential damages and assess the relative risks of declining to offer a settlement of the policy limit.”

“Here, the assessment of the insured’s exposure and the failure to make a settlement offer of the policy limit was a mistake in judgment. It does not demonstrate that defendant acted in bad faith by failing to heed contrary evidence. Instead, the record shows defendant’s reasonable belief that, under the No Fault Law, the underlying plaintiff did not sustain a serious injury causally related to the accident.”

I somehow remember reading about this jury verdict.  Now, the excess carrier is upset because the primary carrier made what appears to be a boneheaded decision and got zinged with 6-7 figure liability.

Bad faith claim not adequately pleaded

Dinstber v Allstate Ins. Co., 2013 NY Slip Op 07103 (3d Dept. 2013)

Thus, “[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant’s motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” (New York Univ. v Continental Ins. Co., 87 NY2d at 316). In this regard, a “defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” (id.). Nonetheless, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” (id.).”

. . .

“Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in “bad faith tactics” by failing to promptly investigate his no-fault claim and failing to renew his insurance policy. Such claim does not allege a breach of duty distinct from defendant’s contractual obligations.”

“In light of the foregoing, even if we construe the complaint liberally, accept as true the facts as alleged and accord plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Murray Bresky Consultants, Ltd. v New York Compensation Manager’s Inc., 106 AD3d 1255, 1258 [2013]; Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011]), we concur with Supreme Court that the complaint does not allege a tort existing independently from the parties’ contract (see New York Univ. v Continental Ins. Co., 87 NY2d at 320; Alexander v GEICO Ins. Co., 35 AD3d 989, 990 [2006])”

This case is important for what it says between the lines.  The complaint at issue did not allege the tort of bad faith.  But, it is clearly possible.  The Court also cites Alexander which states categorically hold there is no bad-faith tort arising from a breach of no-fault benefits.

Also, be aware that the Second Department held similarly in Drysdale v Allstate Prop., 109 AD3d 784 (2d Dept 2013)(“The Supreme Court properly granted that branch of the defendant’s cross motion which was for summary judgment dismissing the second cause of action, which alleged bad faith in disclaiming coverage, as the defendant established, prima facie, its entitlement to judgment as a matter of law by showing it had a reasonable basis for issuing a letter denying the plaintiff’s claim based upon the information available to it at the time.”

 

The motion that went nowhere

Genovese v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 03453 (App. Term 2d Dept. 2013)

“The complaint alleged, among other things, that the plaintiff entered into an insurance contract for State Farm to provide the plaintiff with no-fault insurance benefits if he was involved in a car accident, and that State Farm breached the contract by denying coverage for medical services. Since the allegations in the complaint were sufficient to state a breach of contract cause of action, the Supreme Court should have denied that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action.

The Supreme Court properly granted that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which sought consequential damages for breach of the no-fault insurance benefits policy. The plaintiff’s prolix allegations, when “[s]tripped of their verbiage” (United States Fid. & Guar. Co. v Pressler, 77 NY2d 921, 923), do not adequately plead facts that would support a finding that his damages for pain and suffering arose out of State Farm’s alleged breach of its obligations under its no-fault insurance contract with him (see id. at 923).

This was Mr. Zuppa’s case.  I omitted the fact that his fraud causes of action were booted.  I think the 3211(a)(7) portion and the fact that the court was unhappy with his prolix allegations was enough to post.  Admittedly, I had to google the word prolix – I never encountered it before in my 30+ years on this earth.  That word in the history of the published decisions in New York has been used 167 times.  Not a lot when you consider that our courts probably generate over 10,000 opinions a year.  Incidentally, the last time the Second Department used the prolix was in 2007 (Data Tree, LLC v. Romaine, 36 A.D.3d 804, 828 N.Y.S.2d 512, 2007 N.Y. Slip Op. 00526, N.Y.A.D. 2 Dept., January 23, 2007 (NO. 2005-06121, 19331/04).

Knowing the Plaintiff, the complaint read like a novel.

The appellate term first department hints that it will countenance a bad faith no-fault action

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v National Cont. Ins. Co., 2010 NY Slip Op 50042(U)(App. Term 1st Dept. 2010)

“Because plaintiff did not specify any consequential damages (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of NY, 10 NY3d 187 [2008]) caused by defendant’s failure to pay plaintiffs’ claims for such benefits, the proposed amendment is palpably insufficient as a matter of law”

I guess you can call this is a loss for this plaintiff, but really a big win for the Plaintiffs bar.  The Appellate Term, through citing to “Bi-Economy”, has now held that consequential damages are available in the realm of no-fault litigation, if properly pleaded.  This is pretty big.  All I would say is that Appellate Division precedent does not support the proposition that a party is entitled to consequential damages in no-fault actions nor does the authority of a sister no-fault state (see here).  What I find troubling is that the Appellate Term ignored Appellate Division authority directly on point.  The Court should have at least acknowledged competing authority with a “c.f.”, “compare” or “but see” cite.

I hope i get the chance to appeal this issue with one of my clients.

If you want the Appellate Division cases on point, they are from the following years: 2006 and 2002.  There is a lower court case from 2009.  You will have to find these cases the same way I found them.  I am not a research service.

On bad faith

While doing research on certain nationwide principles of no-fault law, I came across an issue that I felt compelled to discuss: bad faith.  Dave Gottlieb at NFP has discussed this issue extensively.  While I disagree with his perspective, it is one that is shared by many.  Roy Mura also discusses this issue quite extensively at Coverage Counsel.

My view on “bad faith” has always been that penalty interest at a rate of 24% along with an attorney fee of 20% is sufficient to penalize a recalcitrant no-fault insurance carrier.  Those of us who litigate these cases on a regular basis know that many times a $3,000 case can yield interest in an amount commensurate if not greater than the said principle amount.  And then there is the attorney fee.

Off the beat and path, I came across Endo Surgical Center v. Allstate New Jersey Ins. Co., 2009 WL 4877155 (NJ Sup. Ct. App. Div. 2009).  The following represents the relevant portion of Endo Surgical Center:

“Plaintiff cites Pickett v. Lloyd’s, 131 N.J. 457 (1993) in support of its argument that defendant acted in bad faith by unnecessarily delaying the proceedings. Plaintiff’s reliance on Pickett is misplaced.

Plaintiff correctly cites Pickett for the general principle that an insurer owes a duty of good faith to its insured in processing a first-party claim, id. at 467, and that the insurer may be liable to its insured for consequential economic losses for the insurer’s bad faith in either delaying the processing of the claim or in failing to pay benefits, id. at 481. However, an insured’s right to pursue a common law action for consequential damages pursuant to Pickett is not applicable to PIP actions.Endo Surgi Ctr. v. Liberty Mut. Ins., 391 N.J.Super. 588, 592-96 (App.Div.2007). Rather, because PIP benefits are statutory in nature, “the sole remedy for a wrongful denial of PIP benefits is an award of the interest mandated by N.J.S.A. 39:6A-5(h) and attorney’s fees.Id. at 594.

What is more, even if Pickett was applicable to the present matter, we are satisfied that plaintiff’s bad faith claim fails as a matter of law. Pursuant to Pickett, if a claim is “fairly debatable,” bad faith is not established. Id. at 473. Under that standard, “a claimant who could not have established as a matter of law a right to summary judgment on the substantive claim would not be entitled to assert a claim for an insurer’s badfaith refusal to pay the claim.” Ibid.

Interesting.