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?

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.