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?

It was not the partner affirmation this time

Island Life Chiropractic, P.C. v Commerce Ins. Co., 2017 NY Slip Op 50856(U)(App. Term 2d Dept. 2017)

“Defendant’s motion sought summary judgment on the ground that the amount of available coverage had been exhausted. Although the insurance policy had been issued in Massachusetts, defendant acknowledged that, pursuant to New York law, the insurance policy provided $50,000 in personal injury protection benefits. Defendant further contended that claims exceeding $50,000 had been received and that defendant had paid $50,000 in accordance with 11 NYCRR 65-3.15. However, defendant failed to establish, as a matter of law, an exhaustion of the [*2]coverage limits of the insurance policy at issue, as defendant did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.”

My thought here is straight forward.  We all agree that the Massachusetts $10,000 PIP policy was deemed to $50,000 because the accident occurred in New York.  Does this mean that 65-3.15 applies?

Defendant for reasons I will never understand stated that claims were paid in accordance with 65-3.15.  By doing this, counsel for the carrier kicked down the door in this case, begging a court to apply priority of payment rules and, therefore, allowing a finding that coverage exceeding the policy maximum could be afforded.

The correct argument appears to be that under a choice of law analysis, Massachusetts law applies to the $50,000 coverage limit.  Therefore, once $50,000.00 in coverage is exhausted, there is nothing left on the policy.  That is because except for New York, no other state (absent bad faith) ever requires an insurance carrier to pay more than the monetary limits of a policy under so-called “priority of payment”

Now, Commerce n/k/a Mapfre will go over policy.   Leave it to Rybak to torture people.


Policy Exhaustion (again) must comport with the priority of payment regimen

Ortho Passive Motion, Inc. v Allstate Ins. Co., 2017 NY Slip Op 50771(U)(App. Term 2d Dept. 2017)

(1) “Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Lisa S. Ottley, J.) awarded plaintiff a judgment in the principal sum of $2,114.50. The court noted that the parties had stipulated that, among other things, defendant had timely denied the claims at issue. The judgment was entered on March 3, 2014. Eight months later, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the Civil Court entered July 6, 2015 as denied defendant’s motion.”

(2) “In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see e.g. CPLR 5015 [a]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue were deemed 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 Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007])”

[Court discusses that 5019(a) and 5240 are not a valid basis to vacate judgment]

This case does not establish a set of facts engendering sympathy.  Allstate should have known the policy was exhausted when the trial occurred (this would not change the outcome but it could have avoided procedural nuances that make this case problematic outside the substantive issue).  Assuming the policy exhausted after entry of judgment, then Allstate really messed up since they knew they had or would receive a judgment.  Looks like a bad set of facts.

The deemer acts to dismiss complaint against MVAIC

Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC, 2017 NY Slip Op 50039(U)(App. Term 2d Dept. 2017)

“Plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident. Plaintiff contends that plaintiff, as assignee, exhausted its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). However, the letter from Dollar Rent A Car (Dollar), which identified the vehicle’s owner, Ride Share, LLC, as a licensee of Dollar and advised that coverage which would provide first-party no-fault benefits was not offered at the time the vehicle in question had been rented in New Jersey, is not dispositive. Rather, pursuant to Insurance Law sections 370 and 5107, the insurance provided by Dollar and/or Ride Share, LLC may, under appropriate circumstances, be deemed to include such coverage even if the policy in question failed to do so.”

This one is quite interesting, because it requires the medical provider and/or the collection attorney to appreciate the NY deemer statute and to analyze the validity of a disclaimer before bring suite against MVAIC.  The safest way to go about this situation is to probably bring suit against Dollar (if bill not submitted – then employ Domotor) and MVAIC, or name both in an arbitration.  What a dilemma this poses for the casual plaintiff no-fault free-lancer.



Occupied? Pedestrian?

J. Lawrence Constr. Corp. v Republic Franklin Ins. Co., 2016 NY Slip Op 08349 (2d Dept. 2016)

(1) “A person remains an occupant of a vehicle, even if that person is not in physical contact with the vehicle, “provided there has been no severance of connection with it, his [or her] departure is brief and he [or she] is still vehicle-oriented with the same vehicle”

(2)  “A connection to a vehicle will be severed “upon alighting therefrom to perform a chore which was not vehicle-oriented”

(3) “Moreover, there has to be “[m]ore than a mere intent to occupy a vehicle . . . to alter the status of pedestrian to one of occupying’ it”

(4) “[T]he evidence Republic submitted demonstrated that Bosco left the insured vehicle and walked across the street to go to his office on the second floor of the building, to retrieve documents. Thus, Bosco’s leaving the insured vehicle was not a temporary break in his journey such that he remained in the immediate vicinity of the insured vehicle”

When does someone go from occupying to pedestrian?  Always such an interesting question.  This is the most perverse coverage question I have been asked in my years of no-fault.

5102(d) examined at trial against MVAIC

Cooper v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 51707(U)(App. Term 2d Dept. 2016)

“Here, a fair interpretation of the evidence supports the jury’s conclusion that plaintiff sustained a serious injury under the permanent consequential limitation of use category of Insurance Law § 5102 (d). Plaintiff’s expert witness testified about plaintiff’s limitation of her ranges of motion and compared his findings to normal ranges of motion. Moreover, the expert witness offered testimony with respect to the tests he had performed to arrive at his conclusion that plaintiff had sustained a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Scudera v Mahbubur, 299 AD2d 535 [2002]). Although defendant’s medical experts offered a different opinion, the resolution of conflicting medical opinions is within the province of the jury (see Mendoza v Kaplowitz, 215 AD2d 735 [1995]).”

Range of motion and orthopedic tests are sufficient to establish threshold.  Leave it to MVAIC to make plaintiff’s life on a 25k policy case miserable.

Policy exhaustion and fee schedule concerns

Easy Care Acupuncture, PC v MVAIC, 2016 NY Slip Op 51556(U)(App. Term 1st Dept. 2016)

“While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860 [U] [App Term 1st Dept 2013]), triable issues remain with respect to the claims denied in whole or part by defendant on the stated basis that the maximum payment had already been made for the billed codes (see TC Acupuncture, P.C., v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435 [U] [App Term 1st Dept 2014]). Defendant’s submission reveals the existence of triable issues of fact as to whether defendant partially exhausted the coverage by payments to another provider, and whether those payments were proper under the insurance department regulations. Defendant’s failure to deny the claim within 30 days does not preclude a defense that the coverage limits have been exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]).”

Starting backwards, the court questioned the priority of payment regimen.  Second, the Court found issues of fact as to the fee schedule reductions.  What really happened here?


Lack of coverage: there was no lease for the vehicle

Compas Med., P.C. v Citiwide Auto Leasing, 2016 NY Slip Op 51504(U)(App. Term 2d Dept. 2016)

“In support of its motion, defendant submitted an affidavit by its employee, who described the details of a record search which she had performed and stated that her search had revealed that there was no Citiwide Auto Leasing policy covering the vehicle in question on the date of the accident. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).”

This one is interesting because the affidavit of the employee revealed a lack of policy covering the denominated vehicle.  There was no evidence to the contrary.

Jury said the injury was related to a stint in prison

Yuzary v Hafif, 2016 NY Slip Op 05993 (2d Dept. 2016)

Those Kings County juries, comprised of the children on midwest farmers and southern preachers have taken a turn to the right.  Whereas this fact pattern might not have changed in the trials, the results have.

(1) “On cross-examination, the plaintiff admitted that he previously had been convicted of filing false statements. He further testified that, while he was in prison, he experienced shoulder and back pain. He testified that he never told the doctors who treated him after the accident about the pain he experienced while in prison. The plaintiff’s expert physicians similarly testified that the plaintiff failed to inform them of the symptoms he experienced in his back, left shoulder, and left knee prior to the accident. Both of the plaintiff’s experts further conceded on cross-examination that these areas of the plaintiff’s body showed signs of degeneration.”

(2) “The defendant presented the testimony of two expert physicians who reviewed MRI films of the plaintiff’s alleged injuries and concluded that the plaintiff’s alleged deficits were caused either by prior trauma or by degeneration, and not by the accident.”

(3)  “The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident, and the plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence. In the order appealed from, the Supreme Court denied the motion. The plaintiff appeals.”


I think fact #1 was the end.  The film reviews will usually take second seat to a doctor who examined patient over time and there is no evidence or prior traumatic or degenerative pathology.  Again, see #1.  I would say it is nice to see a jury non-suit a lying plaintiff.


Supreme Court got it wrong but I saw a tactical error in the EUO

State Farm Mut. Auto. Ins. Co. v Thompson, 2016 NY Slip Op 51222(U)(Sup. Ct. Kings Co. 2016)

This was a  non-contact DJ Case.  Plaintiff relied on the EUO of its insured who said he never hit the EIP.  The EUO was properly sworn to.  The court held that the EUO was inadmissible.  I will just say look at where the opinion came from.

My bewilderment centers around what happened at the EUO of the insured.  At this EUO, the interlocutor discussed the EUO that took place of the EIP.  And what was missing from the motion? The EUO of the EIP.

Now, I get it: the EIP says the insured driver hit her.  The driver says otherwise.  Why put in evidence that will defeat a prima facie showing?  I get that.  My problem is that when you confront your insured about what happened at the EUO of the EIP, you invite a Court to ask for what? The EUO of the EIP.  And of course, that EUO will defeat a 3212(b) application and a 3215(f) application.

Just an observation.