Another policy exhaustion case went nowhere

Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co., 2018 NY Slip Op 51630(U)(App. Term 2d Dept,. 2018)

“Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.”

Nothing new here.

Prima Facie Staged accident

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51586(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51587(U)(App. Term 2d Dept. 2018)

LVOV Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 51589(U)(App. Term 2d Dept. 2018)

Is it ironic that Danny Safire, the purported owner of Jamaica Wellness Med was indicted at or about the time these cases were decided?  The fact that an attorney would appeal a case with these facts speaks volumes about so much.  I would have run for cover if I was a Plaintiff.  But read the indictment…

 

 

Policy Exhaustion goes to Madison Avenue/Someone from the Insurance Defense side should be putting in Amicu

Ameriprise Insurance Company v Kensington Radiology Group, P.C,  2018 NYSlipOp 80613(U)(1st Dept. 2018)

Respondent having moved for leave to appeal to this Court from the decision and order of the Appellate Term entered in the office of the Clerk of the Supreme Court, New York County, on or about December 22, 2017, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,It is ordered that the motion is granted. Respondent-appellant shall file two copies of the pre-argument statement and of this order with the Clerk of the Appellate Term with proof of service, pursuant to Section 600.17 of the Rules of this Court.

Underlying Decision

Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 58 Misc. 3d 144(A)(App. Term 1st Dept. 2017)

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, which denied its petition to vacate an arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $3,548.01, and confirmed the arbitration award.

Per Curiam.

Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became obligated to pay respondent’s claim.

When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 708 N.Y.S.2d 862 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580, 786 N.Y.S.2d 68 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur [*2]  of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823, 699 N.E.2d 414, 677 N.Y.S.2d 55 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1).

Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 41 N.Y.S.3d 448, 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 926 N.Y.S.2d 342, 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011]).  [**2] Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Please Help

If you represent no-fault carriers and do not want the Second Department priority of payment rule to be the law of the State, file an Amicus with the First Department.  Your help is absolutely required.  Without your help, the wind may very well determine the outcome of this issue.  Is that what you want?

Note:  We all can live with Harmonic v. Praetorian.  For the most part, it is a fair balance and leaves everybody unhappy.  It balances priority of payment with reality.  That said,  we CANNOT live with Alleviation v. Allstate.
Unfortunately, I do not have the papers so I cannot even send them to you if you ask .  I assume you can obtain the papers from the New York County Civil Court’s clerk’s office.  Perhaps if you contact Ameriprise’s counsel, they will provide the same to you?
Since this appeal will be heard before the Second Department Alleviation battle, this case may become dispositive of the issue.

 

Non contact case on motion

Compas Med., P.C. v United Servs. Auto. Assn., 2018 NY Slip Op 50764(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured’s passenger also submitted an affidavit, in which she stated that the insured vehicle had not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. [*2]Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). “

Triable issue of fact on EIP issue

TAM Med. Supply Corp. v Country Wide Ins. Co., 2018 NY Slip Op 50578(U)(App. Term 2d Dept. 2018)

“Although the accident occurred in Pennsylvania, the NF-2 form annexed to defendant’s cross motion states that plaintiff’s assignor resides in Bronx County. As a result, defendant’s cross motion for summary judgment should have been denied, because defendant failed to establish, as a matter of law, that plaintiff’s assignor is not an eligible injured person (see 11 NYCRR § 65-1.1 [d]).”

What probably happened here is that the Assignor was a stranger to the policy and Defendant tried to articulate that since the MVA occurred in PA and (arguably?) the EIP lived outside NY, there would be no coverage.  This would be a valid coverage defense if the facts played as out as above.  But… they did not.

Coverage – use or operation

Peter Pan Bus Lines, Inc. v Hanover Ins. Co., 2018 NY Slip Op 00467 (1st Dept. 2017)

“The insurance policy issued by defendant to Peter Pan provides coverage for damages owed because of, inter alia, ” bodily injury’ … caused by an accident’ and resulting from the ownership, maintenance or use of a covered auto.'” Regardless of whether the plaintiff in the underlying action, having arrived at her destination on a Peter Pan bus and seen the driver unloading the passengers’ luggage, tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase, her accident resulted from Peter Pan’s use of the bus, a covered auto, and defendant is obligated to defend and indemnify Peter Pan in the underlying action”

Priority of payment

Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 2017 NY Slip Op 51911(U) (App. Term 1st Dept. 2017)

“Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, [*2]1st Dept 2011]). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.”

This looks like pure priority of payment, which does not look good,

Alleviation is going to the Appellate Division – what happens next is for you to decide.

Alleviation Medical Services P.C. v Allstate Insurance Company, 2017 NY Slip Op 96489(U) (2d Dept. 2017)

“Motion by Allstate Insurance Company for leave to appeal to this Court from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated August 4, 2017, which affirmed an order of the Civil Court of the City of New York, Queens County, entered April 1, 2015. Separate motion by New York Insurance Association, Inc., for leave to file papers, as amici curiae, in support of the motion by Allstate Insurance Company.

Upon the papers filed in support of the motion for leave to appeal and the papers filed in opposition and in relation thereto, and upon the papers filed in support of the motion for leave to file papers, as amici curiae, and the papers filed in opposition thereto, it is

ORDERED that the motion by New York Insurance Association, Inc., is granted and its papers have been considered in the determination of the motion by Allstate Insurance Company; and it is further,

ORDERED that the motion by Allstate Insurance Company is granted.”

This really should not surprise anyone.  The Appellate Term should have granted leave in the first instance.  Instead, they tried to hide this case as (U) cite and quietly denied leave to appeal.  My prediction?   Unless DFS submits amicus (and I think they will sit on the sidelines), this will probably be affirmed.  The fallback here is Harmonic v. Praetorian, which I think is the correct rule.  But in light of Dust, I cannot see this Court applying Harmonic v. Praetorian.

Should this be affirmed, expect an amendment within a year after affirmance.

Was the Plaintiff the owner? Court says triable issue of fact.

Harris v Direct Gen. Ins. Co., 2017 NY Slip Op 08961 (4th Dept. 2017)

(1) “We have previously stated that, generally, ownership is in the registered owner of the vehicle or one holding the documents of title, but a party may rebut the inference that arises from these circumstances”

(2) “defendant submitted plaintiff’s testimony that he was the co-owner of the vehicle, and that he and his fiancée paid for the vehicle, its maintenance, and a Florida insurance policy that did not cover plaintiff. Nevertheless, defendant also submitted the registration, title, and insurance documents for the vehicle, all of which list plaintiff’s father as the owner. ”

Courts found a triable issue of fact as to whether Plaintiff owned the vehicle.  Makes sense to me.  The matter should go to trial.

Detailed search yields no insurance policy

Compas Med., P.C. v Hereford Ins. Co., 2017 NY Slip Op 51083(U)(App. Term 2d Dept. 2017)

“In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee who described the details of a record search she had performed and stated that her search had revealed that there was no relevant Hereford Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident.”

My sense is that Hereford may have been the WC carrier?  Or was this just a stab in the dark that Hereford was the no-fault carrier?