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.

Equitable subrogation takes the backseat to the wording of the regualtion

(1) “Article 51 of the New York Insurance Law, enacted as the Comprehensive Motor [*3]Vehicle Insurance Reparations Act (see L 1973, ch 13), governs payments to reimburse a person for basic economic loss for personal injury arising out of the use or operation of a motor vehicle, irrespective of fault. Article 51 is commonly known as the No-Fault Law. The purpose of the No-Fault Law was to promote “prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts” (Pommells v Perez, 4 NY3d 566, 571 [2005] [citations omitted])”

(2) “The applicable regulation, 11 NYCRR 65.3.11 (a) provides, in relevant part, that “an insurer shall pay benefits for any loss, other than death benefits, directly to the applicant or, . . . upon assignment by the applicant . . .shall pay benefits directly to providers of health care services. . .” (emphasis added). Aetna concedes that as a health insurer it is not a “provider of health care services” as contemplated by the language of this regulation (see Health Insurance Plan of Greater New York v Allstate Insurance Co., 2007 N.Y.Slip Op 33925[U] [Sup Ct, NY County 2007]; see also Gen. Counsel Opinion 1-28-2008). Aetna argues, however, that it stands in Herrera’s shoes because Herrera assigned her no-fault rights to it.”

(3) “This argument fails for two reasons. First, since Herrera’s health care providers were able to bill and recoup payment from Aetna, an assignment by Herrera of her no-fault rights had already been made, leaving her with no rights to assign to Aetna. Second, by its very language, the no-fault regulation permits only the insured — or providers of health care services by an assignment from the insured — to receive direct no-fault benefits. Because Aetna does not fall under the term “health care provider,” Herrera could not assign her rights to it.”

What is interesting about this about this case is that the Court looks to the strict language of the regulations in coming to the conclusion major medical cannot subrogate against the no-fault carrier.

The way this used to play out (prior to the changes in the GOL and the Second Circuit affirming same) was that the major medical carrier would assert a binding lien against the EIP or even bring a lawsuit against the EIP who, in turn, would bring an action (or third-party action) against the no-fault carrier.  Insofar as the GOL has gutted the subrogation rights in major medical policies, this is a paradigm that does not play out anymore.  And now that there is no direct right of action between the major medical carrier and the no-fault carrier, this whole issue has seemingly disappeared.

Staged accident not proven

Progressive Advanced Ins. Co. v McAdam, 2016 NY Slip Op 03484 (2d Dept. 2016)

“In support of its motion, inter alia, for summary judgment on the complaint insofar as asserted against Sovereign, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the subject accidents were staged. The uncertified police accident reports submitted by the plaintiff were not admissible (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; Sanchez v Taveraz, 129 AD3d 506, 506; Adobea v Junel, 114 AD3d 818, 820; Hazzard v Burrowes, 95 AD3d 829, 831; cf. Caldara v Utica Mut. Ins. Co., 130 AD3d 665, 666). The plaintiff submitted an affidavit of its medical representative, but that representative relied largely on inadmissible evidence, and lacked personal knowledge of the facts surrounding the two collisions. Thus, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491). Moreover, the plaintiff failed to establish, prima facie, that McAdam and Fedee were in breach of their insurance contracts with the plaintiff because several defendants failed to attend their scheduled EUOs. The plaintiff failed to submit proof of mailing or evidence from someone with personal knowledge of the mailings of the EUO requests”

I find it amazing that Judges on these proofs will find a sufficient basis to grant a default judgmtn (3215[f]), let alone meet the basis to grant summary judgment (3212[b]).  Garbage in, garbage out.

UM Hearing – evidence insufficient to prove presence of coverage

Initial showing at a framed issue hearing:  Existence of other vehicle and coverage at the time of the incident

“Infinity contends, among other things, that the petitioner failed to submit competent evidence to meet its initial burden of identifying the alleged offending vehicle and showing that it was, in fact, insured at the time of the accident. Contrary to the petitioner’s contention, Infinity may raise that issue as an alternative ground for affirmance”

(1)”Here, [*2]to meet its initial burden, the petitioner was required to identify the alleged offending vehicle and show that it was, in fact, insured at the time of the accident”

(2) “At the hearing, Willis testified that, at the scene of the accident, the operator of the alleged offending vehicle, Thomas, gave him the telephone number for Thomas’s insurance carrier. Willis wrote that information, along with other information relating to the identity of the vehicle, on a piece of paper. The next day, Willis called the number given by Thomas and spoke with an unnamed insurance agent who gave him Thomas’s insurance information. Willis then wrote that information on a separate piece of paper.”

(3) “Ten days after the accident, Willis used both pieces of paper to prepare a MV-104 motor vehicle accident report. The MV-104 accident report included the name and address of the driver of the alleged offending vehicle, but did not include any identifying information about the vehicle itself, including its license plate number, state of registration, make, model, or year. The MV-104 accident report indicated that the alleged offending vehicle was insured by Esurance, but it is undisputed that the insurance policy number shown therein correlated with an Infinity policy.”

(4) “Contrary to the petitioner’s contention, it failed to make an evidentiary showing that the MV-104 accident report was admissible as a memorandum of a past recollection (see People v Taylor, 80 NY2d 1, 8). “The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” (id. at 8). “[A] witness who verifies the correctness of the facts recorded must have had personal knowledge of the facts in the first instance” (People v Fields, 151 AD2d 598, 600). Since Willis did not have personal knowledge of Thomas’s insurance information in the first instance, the petitioner may not rely upon the portion of the MV-104 accident report containing that insurance information. Moreover, the information on the MV-104 accident report relating to the alleged offending vehicle and its insurance was derived from pieces of paper that were not produced at the hearing.[A] memorandum not in its nature original evidence of the facts recorded, and not verified by the party who made the original and knew the facts, would open the door to mistake, uncertainty, and fraud'” (People v Taylor, 80 NY2d at 9, quoting Peck v Valentine, 94 NY 569, 573). Since the MV-104 accident report did not meet the criteria for admissibility as a memorandum of a past recollection, the Supreme Court erred in considering the MV-104 accident report as proof of identification of the alleged offending vehicle and that it was, in fact, insured at the time of the accident.”