Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co., 2018 NY Slip Op 50080(U)(App. Term 1st Dept. 2018)
“Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).
In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).”
I am working on a Florida no-fault defense case (getting mileage out of my dormant Florida law license) and I was searching around the clerk’s offices for sample discovery demands to put in my database. This one takes the cake. I want you to look at request to admit number 29.
Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 50255(U)(App. Term 2d Dept. 2013)
“Contrary to plaintiff’s argument on appeal, defendant’s denial of claim forms were sufficient to preserve defendant’s fee schedule defense (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”
The Arco-Lancer case allowed for an EBT on “billing practices” because box #18 was checked.
In light of the dearth of no-fault cases, I have devoted this week’s postings to interesting issues that have arisen in Florida no-fault law. Today’s case is from the Florida Supreme Court, and was decided in 1999. It should be noted that the issue of “use and operation” in New York is one that has created numerous conflicts between the Second Department and Third Department.
But, this case is really interesting in seeing how expansive the phrase “use and operation” of a motor vehicle is in Florida.
Blish v. Atlanta Causalty Company, 736 So.2d 1151 (Fla. 1999)
Karl Blish left work on January 6, 1995, drove a coworker home, spent a few minutes at the coworker’s house, and then headed home himself. Blish’s pickup truck had a blowout on U.S. 1 in Brevard County and he pulled over to change the tire. He jacked up the truck and was loosening the lug nuts when he was attacked from behind by several assailants. The men choked and beat him (he testified that he “might have went unconscious”) and stole between eighty and a hundred dollars from his pocket. After the attack, Blish recovered his glasses, did his best to finish changing the tire, and drove home (“I just barely got the tire on and I drove home.“). He did not go to the hospital or call police because he did not think that he had been hurt badly enough (“I was just going to write it off as a loss, I guess.“).
A week later, he experienced severe abdominal pain, was rushed to the hospital in an ambulance, and was diagnosed as suffering from a ruptured spleen, which doctors removed.
Under these circumstances, the actual source of the injury-causing blow is not dispositive–whether it came from a negligent driver in a passing vehicle or a violent group of passing thugs is not decisive. It was the use and maintenance of the truck that left Blish stranded and exposed to random acts of negligence and violence, and he was in the very act of performing emergency maintenance on the vehicle when he was injured.
Acts of violence are an ageless and foreseeable hazard associated with the use of a vehicle–for once a person sets out in a vehicle, he or she is vulnerable. The highwaymen and desperados of bygone times preyed on the wayfarer, and these villains are with us still. Each Floridian today, when he or she gets behind the wheel, faces a variety of dangers: a car-jacking at a stoplight, or a strong-arm robbery at a deliberately staged rear-end collision, or a road rage assault in rush hour traffic, or even a random shooting by an anonymous sniper from an overpass.
The danger is particularly acute when the motorist is stranded as the result of a disabled vehicle. The scenario in the present case is every motorist’s nightmare. Losses resulting from a violent encounter with this ageless road hazard–i.e., the highwayman or opportunistic thug–might reasonably be said to be very much in the contemplation of Florida consumers when they are contracting to purchase auto insurance. The motivation of the assailant–whether it be to “possess or use” the vehicle, or to steal the victim’s wallet or purse, or simply to harm the victim–is a nonissue to the consumer.
Compare, e.g., Hammond v. GMAC Ins. Group 56 AD3d 882 (3d Dept. 2008); Matter of Manhattan & Bronx Surface Transit Operating Authority, 71 AD2d 1004 (2d Dept. 1979). But see, Mazzarella v. Paolangeli, 63 AD3d (3d Dept. 2009); 1420Trentini v. Metropolitan Property and Cas. Ins. Co., 2 AD3d 957 (3d Dept. 2003).
The District Court of Appeal, Third Division answered this question in the affirmative.
In the matter of Millennium Diagnostic Imaging Ctr., Inc. v. United Auto Ins. Co., 975 So. 2d 1149 (Fla. 3d DCA 2009), the Court held the following:
The language in section 627.736(4)(b) pertains to PIP benefits that are “due” under the policy. If a medical bill is submitted for treatment that is not reasonable, related, or necessary, there can possibly be no benefits “due” under the policy, and therefore, that claim cannot be deemed “overdue.” Section 627.736(4)(b) provides that the insurer can assert, “at any time, including . . . after the 30-day time period for payment,” that “the claim was unrelated, was not medically necessary, or was unreasonable.”
Based on the unambiguous language of section 627.736(4)(b) and applicable case law, we answer the certified question, as phrased by the trial court, in the affirmative, and conclude that the thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable, or unnecessary treatment. Therefore, an insurer may challenge such treatment at any time, and is permitted to rely on a report, obtained pursuant to section 627.736(7)(a), even if the report is obtained more than thirty days after the claim was submitted. The insurer, however, must keep in mind that if its challenge fails, it will be liable for interest and attorney’s fees.
Oh I forgot to add that I was referencing Florida law. Compare, Bronx Expert Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co. 24 Misc.3d 134(A)(App. Term 1st Dept. 2009); Dilon Medical Supply Corp. v. New York Cent. Mut. Ins. Co., 18 Misc.3d 128(A)(App. Term 2d Dept. 2007).