Great Health Care Chiropractic, P.C. v Infinity Group, 2016 NY Slip Op 50257(U)(App. Term 2d Dept. 2016)
“In order to prevail on its motion for summary judgment dismissing the complaint, defendant was required to demonstrate that the insurance policy at issue had been validly cancelled in accordance with Pennsylvania law (see generally Compas Med., P.C. v Infinity Group, 46 Misc 3d 146[A], 2015 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Although defendant’s motion papers contained a supporting affirmation by defense counsel and accompanying documents, and purported to include an affidavit by defendant’s litigation specialist, in fact, the affidavit of defendant’s litigation specialist was not included.”
I do not understand why this was appealed?
Compas Med., P.C. v Infinity Group, 2016 NY Slip Op 50042(U)(App. Term 2d Dept. 2016)
Florida law prevails again, and the decision makes sense. I imagine of Plaintiff procured an affidavit from Assignor and raised an issue of fact, this case would have been tough on defense to prove. And, do not forget about Florida Attorney fees.
“The vehicle involved in the accident at issue, which occurred in New York, was being driven by plaintiff’s assignor, the daughter of the policyholder. At the time of the accident, the vehicle was insured by defendant under a Florida automobile insurance policy. After defendant’s investigation into the accident revealed that the insured had not resided at the Florida address listed on the insurance application and that the vehicle had not been garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.
In order to show that it properly voided a motor vehicle policy ab initio, in accordance with Florida law, an insurer must demonstrate that it had given notice of the rescission to the insured and that it had returned or tendered, within a reasonable time after the discovery of the grounds for avoiding the policy, all premiums that had been paid (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its senior litigation specialist and accompanying documents, that it had fully complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4[App Term, 2d, 11th & 13th Jud Dists 2012]).”
New Way Med. Supply Corp. v Infinity Group, 2015 NY Slip Op 51880(U)(App. Term 2d Dept. 2015)
“In Pennsylvania, in order for an insurance policy to be cancelled due to the nonpayment of premiums, the “notice of cancellation must be in strict accordance with the provisions of Act 68. An insurance policy may be cancelled by mailing to the named insured, at the address shown in the policy, a written notice of cancellation. If the notice sets forth a time period in which intervening action may negate the cancellation, the cancellation shall not become effective until the expiration of the time period” (Nationwide Ins. Co. v Pennsylvania Ins. Dept., 779 A2d 14, 17 [Pa Cmmw 2001]; see Donegal Mut. Ins. Co. v Pennsylvania Dept. of Ins., 694 A2d 391 [Pa Cmmw 1997]; see also 40 P.S. § 991.2006). Inasmuch as defendant failed to attach a copy of the insurance policy, or the declaration page of the policy, to its motion papers, it is impossible to determine whether the notice of cancellation was mailed to the insured “at the address shown in the policy” (40 P.S. § 991.2006). Consequently, defendant failed to establish as a matter of law that the insurance policy had been properly cancelled as of May 12, 2011 in accordance with [*2]Pennsylvania law and that, therefore, no coverage existed when the accident in question occurred on May 19, 2011.”
Does defense counsel have to refund the carrier when they make this type of mistake?
Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 2015 NY Slip Op 25425 (App. Term 2d Dept. 2015)
“In Bay Med, P.C., this court held that dispute resolution is not mandatory pursuant to NJSA § 39: 6A-5.1 (a), as implemented by NJAC § 11:3-5.1 (a), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute resolution upon the initiative of either party to the [*2]dispute (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 ). The insurance policy in question also states that a matter may be submitted to dispute resolution “on the initiative of any party to the dispute.” However, the existence of an option to arbitrate is not a ground for dismissal of a court action; such an option— if exercised by way of a motion to compel arbitration—is a ground to stay the court action (see CPLR 7503 [a]). As defendant has not moved to compel arbitration, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bay Med., P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U]; Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”
I agree that the proper mechanism to compel arbitration is through application of Article 75. I also tend to believe that if Geico in their motion sought such other and further relief, the Court should have read CPLR 7503 relief as it is not dissimilar to the statutory grounds (3212[b]) to dismiss the complaint. Is this another example of this Court bending to Rybak? Who knows…
Delta Diagnostic Radiology, P.C. v Infinity Group, 2015 NY Slip Op 25304 (2d Dept. 2015)
It is relatively rare to see a court vacate a consent order, but in the right circumstances they will do it.
“Subsequently, in January 2013, defendant moved for leave to renew its motion for summary judgment, contending that, after the entry of the Civil Court’s order, there had been “a change in the law that would change the prior determination” (CPLR 2221 [e] ). Defendant [*2]specifically referred to this court’s decisions in Craigg v Infinity Select Ins. Co. (38 Misc 3d 56 [App Term, 2d, 11th & 13th Jud Dists 2013]) and W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]), which held that an insurer need not establish the underlying reasons for the retroactive rescission of the policy, but rather has the burden of establishing that it complied with the law of the sister state which permits retroactive rescission. Thus, defendant argued, contrary to the Civil Court’s April 14, 2011 order, based on the W.H.O. and Craigg cases, which were decided subsequent to April 14, 2011, defendant’s burden at trial was not to prove that the policy had been procured by fraud, but rather to demonstrate that the policy had been properly rescinded from its inception in accordance with Pennsylvania law”
“Thus, defendant demonstrated, prima facie, that it had validly rescinded the policy in accordance with Pennsylvania law by showing that, within 60 days of issuance of the policy, it had provided the insured with “a written statement of the reason for cancellation” (40 P.S. § 991.2002 [c] ) and that it had returned to the insured the premiums he had paid (see Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1). In opposition to defendant’s showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Pennsylvania law.”
This is the long and short of it. The Court seemingly gave Defendant a break.
37 Ave Med., P.C. v Metlife Auto & Home Ins. Co., 2015 NY Slip Op 51293(U)(Civ. Ct. Kings Co. 2015)
How do you not research core issues before you tell a client you want to take a case to trial? I hope the client was told that Rhode Island law would not support their position and the client voluntarily opted to take a chance the issue. Also, if you are going to apply Rhode Island law, what is the standard for collection of medical bills? Is there a requirement that the provider prove the services are necessary and related to injury at hand. Alternatively, if the policy issuance state is not a no-fault state (neither compulsory or through election), wouldn’t the better argument be that New York law should apply viz the deemer, including the fraudulent procurement rules? Certain things never cease to amaze me.
Good job to Evan Polansky- we have something in two weeks right?
Quality Psychological Servs. v Infinity Prop. & Cas. Co., 2015 NY Slip Op 50645(U)(App. Term 1st Dept. 2015)
“While defendant-insurer submitted proof indicating that it properly rescinded the underlying insurance policy pursuant to Pennsylvania law based upon misrepresentations made by the insured, one Catrina Gordon, in the underlying policy application, defendant failed to demonstrate that plaintiff’s assignor, who was injured in an accident involving the Gordon vehicle, was “not an innocent third party” who should be precluded from receiving protection under the policy”
“In applying for the automobile insurance policy in Pennsylvania, the insured had indicated on her application that she resided in Pennsylvania and owned two vehicles which were garaged in Pennsylvania. The only connection between the policy and New York State was that plaintiff’s assignor, the insured’s husband, was injured while driving one of the insured vehicles in New York.”
“The Pennsylvania Supreme Court has held that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 ). Defendant, in its motion papers, set forth facts demonstrating that the insured was the actual perpetrator of a fraud, and that, based thereon, defendant had rescinded the policy in accordance with Pennsylvania law.”
Invariably, the choice of law will militate in favor of the State where the vehicle was registered. Thus, unless the issue involves an Assignor who said he lived upstate or Long Island as opposed to Brooklyn, the choice of law question will militate in favor of the state where Claimant lives.
Optimal Well-Being Chiropractic, P.C. v Infinity Ins. Co., 2014 NY Slip Op 51203(U)(App. Term 2d Dept. 2014)
This fact pattern asked if under PA law, the injured person who was complicit in the scheme to obtain lower priced insurance could have his first-party benefits denied. The answer, on reargument, is yes sir.
(1) PA Law applies: “Defendant issued the automobile insurance policy in Pennsylvania to the insured, who purportedly resided in Pennsylvania, for a vehicle which was purportedly garaged in Pennsylvania. The only connection between the policy and New York State is that plaintiff’s assignor was injured while riding in the insured’s vehicle in New York. Consequently, we find that Pennsylvania law is controlling under New York’s conflict of law rules ”
(2) PA Law substantiates the disclaimer: “[A]lthough Pennsylvania law provides for a common law right by the insurer to rescind a policy of insurance, in Erie Ins. Exchange v Lake(543 Pa 363, 375, 671 A2d 681, 687 ), the Pennsylvania Supreme Court held that an automobile insurance policy cannot be retroactively rescinded with respect to third parties who were harmed through no fault of their own. In the case at bar, during his examination before trial, plaintiff’s assignor testified that his mother, the insured, had never resided in Allentown, Pennsylvania, and that he had driven his mother to[*2]Pennsylvania for the sole purpose of renewing her automobile insurance because the insurance was cheaper in Pennsylvania than in New York. Inasmuch as the aforementioned acts of the assignor make him complicit in the fraud perpetrated by his mother, he is not an innocent third party and, therefore, rescission of the subject insurance policy is effective with respect to him.”
Good to see logic prevail.
Delta Diagnostic Radiology, P.C. v Infinity Group, 2014 NY Slip Op 50602(U)(App. Term 2d Dept. 2014)
The EUO was sufficient to raise an issue of fact as to the fraudulent procurement issue. Now, you need to subpoena the assignor for trial and have the Civil Court enforce a judicial subpoena. I feel pains even thinking about how Defendant is going to win this at trial. This is another example of how the assignment shields the EIP from being responsible for her sins. Without the assignment, EIP has to appear and testify pursuant to subpoena; otherwise, the complaint may very well be stricken. CPLR 2308. The assignment blocks a 2308 penalty and, at best, can cause a matter to be stricken from the trial calendar during discovery when Assignor dodges a subpoena. (Total Family v. Mercury)
There is no penalty for the less than innocent medical provider who knows (or should know) that all of Infinity’s insured’s/EIP’s are seemingly involved (somehow) with PA-NY rate evasion issues. I know this just by reading every Infinity case from this Court; it is the same issue over and over. So I digressed. Here is the holding:
“Pennsylvania law gives an insurer a common law right to rescind a policy of automobile insurance (see Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 ). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie [*2]Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 ). Although defendant, in its motion papers, set forth facts tending to demonstrate that the insured was the actual perpetrator of a fraud, and that, based on that fact, it rescinded the policy in accordance with Pennsylvania law, defendant’s submissions did not conclusively establish that plaintiff’s assignor was not an innocent third party. Consequently, defendant’s cross motion failed to make a prima facie showing of defendant’s entitlement to judgment as a matter of law.”