Staged accident stay

Matter of Liberty Mut. Ins. Co. v Young, 2015 NY Slip Op 00377 (2d Dept. 2015)

“A deliberate collision by an insured is not a covered event under an insurance policy (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491;Matter of Metro Med. Diagnostics v Eagle InsCo., 293 AD2d 751, 751-752). Here, the strong circumstantial evidence at the framed-issue hearing established that [*2]Trotman intentionally caused the collision between his vehicle and Young’s vehicle. In finding otherwise, the Supreme Court focused entirely on whether Trotman’s vehicle suffered any damage, rather than on the totality of the evidence (see generally A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822 [Civ Ct, Kings County]). Accordingly, because the evidence at the hearing established that Trotman intentionally caused the collision with Young’s vehicle, the collision between the two vehicles was not a covered event under Trotman’s policy with GEICO. Therefore, the Supreme Court erred in entering a judgment granting Liberty Mutual’s petition for a permanent stay of arbitration of Young’s claim for uninsured motorist benefits on the ground that Trotman’s vehicle was insured and directing GEICO to defend and indemnify Trotman with respect to the subject accident (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d at 699).”

By the way, you should note in this case that Geico (third party liability carrier) disclaimed coverage.  Liberty Mutual (first-party UM carrier) lost its Petition despite proof that it was a staged accident.  This may very well limit the application of “from the eyes of the injured person perspective” to first-party coverage.

From the eyes of the insured has its limits

Nationwide Gen. Ins. Co. v Pontoon, 2014 NY Slip Op 09001 (2d Dept. 2014)

“The referee incorrectly concluded that GEICO was required to submit evidence that Pontoon was involved in staging the collision in order to support a disclaimer of coverage. Contrary to the referee’s conclusion, if GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party (see Matter of Travelers Indem. Co. v Richards-Campbell, 73 AD3d 1076, 1077; Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522, 523; Morris v Allstate Ins. Co., 261 AD2d 457, 458; see also Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699; State Farm Mut. Auto Ins. Co. v Laguerre, 305 AD2d 490, 491)”

Perhaps we can call this the staged accident exception to Langan.  I think this is wrong since under Langan, an intentional act is looked at through the perspective of the Claimant.  Here, Pontoon said he had nothing to do with the staged accident.  Under Langan, it would appear that Claimant would be entitled to a framed issue hearing to protest his innocence.  Yet, the Court here is saying that where there is evidence of a staged accident scheme, anyone seeking coverage is barred (regardless of whether they were aware of it).  All I can say is wow.

An Application of Langan


Matter of Utica Mut. Ins. Co. v Burrous, 2014 NY Slip Op 06986

“From the eyes of the decedent”

“Contrary to the Supreme Court’s determination, Utica is not entitled to a permanent stay of arbitration, and that branch of its petition should have been denied. In State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349), the Court of Appeals held that, for the purposes of an uninsured motorist endorsement, when an occurrence is “unexpected, unusual and unforeseen,” from the insured’s perspective, it qualifies as an “accident” (id. at 355 [internal quotation marks omitted]). Here, from the decedent’s perspective, her collision with Demoliere’s vehicle was unexpected, unusual, and unforeseen. Therefore, the occurrence constituted an “accident” within the meaning of the uninsured motorist endorsement of the decedent’s policy (see State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355-357; see Matter of Progressive Northeastern Ins. Co. v Vanderpool, 85 AD3d 926, 927)”

It is an inquiry of whether the recipient of PIP benefits or seeking UM benefits was part of the intentional loss.  In a staged loss scenario, this is colloquially stated a “no-brainer.”  When the issue involves the victim of someone on a death wish (who is not Charles Bronson), it is a different story.

Verdict sustaining that the loss was intentional sustained

V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co., 2014 NY Slip Op 50615(U)(App. Term 2d Dept. 2014)

“Prior to trial, the parties stipulated that the sole question for the jury’s determination was whether the motor vehicle collision at issue was the result of an intentionally caused event. An investigator from defendant’s Special Investigation Unit was the only witness called to testify. Thereafter, plaintiff moved, pursuant to CPLR 4401, for judgment as a matter of law or, in the alternative, to declare a mistrial. Defendant opposed, and the Civil Court denied plaintiff’s motion. The jury unanimously returned a verdict in favor of defendant, finding that the motor vehicle collision was the result of an intentionally caused event.”

“Thus, the branch of plaintiff’s motion seeking judgment as a matter of law and the motion to set aside the verdict as contrary to the weight of the evidence and for a new trial were properly denied by the Civil Court.”

If I had to guess, I would say it was  a link chart showing that the 1995 Pontiac was involved in 5 prior losses and the loss here occurred immediately after policy inception and the policy was cancelled for non-payment.  I just recall seeing that fact pattern often and the plaintiffs’ attorneys arguing that the carrier was off based for making the leap that this fact pattern circumstantially proved that the loss was less than legitimate.   Certain judges, probably desensitized to the volume of cases, had a similar thought process.  Thus, it took jury trials to bring a semblance of sanity – that it is illogical for a vehicle to be used as a FHA crash dummy surrogate and for the loss to be anything except intentional.

So, my hats off to counsel for defense and to an Appellate Term that allowed the jury verdict to stand.


Successful summary judgment: Plaintiff Assignor jumped on a parked car and walked away and the complaint was dismissed

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co., 2012 NY Slip Op 52388(U)(App. Term 2d Dept. 2012)

In this case, the Plaintiff Assignor jumped on a parked car and walked away and the complaint was dismissed

“In support of its cross motion, defendant submitted an affidavit by its insured who stated that plaintiff’s assignor had jumped on the hood of the insured’s car, while it was parked, and got off of the car without incident or injury. The insured, according to his sworn statement, drove away without further contact with plaintiff’s assignor. Consequently, defendant argued that plaintiff’s assignor’s alleged injuries did not arise out of an insured incident.”

In opposition Plaintiff offered a non certified police report and what appear to be non-certified hospital records, which District Court found was sufficient to warrant a trial.

Holding #1: The police report offered by plaintiff did not constitute proof in admissible form, as it was not certified pursuant to CPLR 4518 (c) and no foundation establishing its authenticity and accuracy was offered (see Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2009]). In any event, “the statements in the report attributed to the [plaintiff’s assignor] constituted inadmissable hearsay” (id. at 991-992).”

Holding #2: “The hospital records that plaintiff submitted to the court purport to include a description of the alleged accident as reported to hospital staff by plaintiff’s assignor. Such statements are considered reliable only when they are relevant to diagnosis or treatment (see Williams v Alexander, 309 NY 283, 286 [1955]). Here, the hospital records do not contain any allegations that rebut the allegations contained in defendant’s insured’s sworn statement. Furthermore, plaintiff failed to lay the requisite foundation for the hospital records (see CPLR 4518 [a], [c]).”  Following this the court gave an “assuming arguendo” passage when they said: “even assuming the hospital records were admissible at all, and therefore could be used as proof that plaintiff’s assignor was injured by a motor vehicle, they still did not raise a triable issue of fact as to whether defendant’s insured was involved, thereby triggering defendant’s liability.”

End of the day: Plaintiff loses.  Two case cites: St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 69 AD3d 923 [2010]; 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, 11th & 13th Jud Dists 2009]).”

Staged accident and non-payments of premiums

21st Century Advantage Ins. Co. v Cabral

Look, 21st Century did their homework.  Someone admitted to defrauding the insurance companies.  Yet, Mr. All Boro, a distant relative of of Mr. Five Boro felt the need to put in gratuitous opposition to the preliminary injunction motion.  As such, more paper and judicial resources were were wasted on a case that has no value.  More can be said, but I will leave it that.

On a more serious note, it seems that a lot of companies are binding contracts over the internet without performing any due diligence.   Perhaps the ability to cancel policies based upon non-payment needs to be amended to allow retroactive rescission.    This will at least mandate that some payment is made before the insurance companies have to investigate these types of incidents.

An intentional act is precluded if not raised in a timely denial

Nyack Hosp. v Allstate Ins. Co.,  2011 NY Slip Op 04644 (2d Dept. 2011)

This Medicaid crisis has spurred judicial activism from the Appellate Division, Second Department.  Now an intentional act, both a coverage issue and a policy exclusion has been deemed to be the latter, to the exclusion of the former.

I swear people who practice other areas of law or PIP outside New York must look at the decisions and either laugh or cry.  It is decisions like this that undoubtedly created the Unitrin monster.

Anyway, I guess I have to create a new category for precludable coverage defenses.

From your perspective – not mine

State Farm Mut. Auto. Ins. Co. v Langan, 2011 NY Slip Op 02437 (2011)

It is Langan again.  That bad dream that does not go away.  Well this time, the Court of Appeals held that for both lines of first-party automobile coverage, PIP and UM/SUM/UIM, an intentional act should be looked at through the viewpoint of the injured person.  If you remember, the Second Department limited that holding to PIP coverage.  It is an interesting opinion.

Proof insufficient to prove the accident was intentional

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U)(App. Term 2d Dept. 2011)

“Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator’s affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident”

It appears – and do not quote me please- that police reports do not generally need to be certified to be admissible.  There is a legion of recent case law which dances around the 4518(c) requirement but does not explicitly reject it.  The better practice, when possible, is to obtain a certified police report.  Yet, that can be a challenge when dealing with NYC police reports.  Go onto the DMV police report site- you will see what I am referencing.

I suspect the substance of the police report was insufficient to raise an issue of fact.

Default Judgment seeking a declaration of non-coverage is denied based upon the failure to adduce any non-hearsay evidence

This is a most interesting case.  I will discuss my thoughts in some detail because this case seems to possibly support the inference that a default judgment in a declaratory judgment involving a staged or non-loss may never be viable.  I do not think that is the case at all.  I also am not sure this case is consistent with the cases to which it cited.

The above being said – I was taught an early age that if you can do something to avoid a trip to the Appellate Division, despite what the correct view of the law is, then you should do what is necessary to avoid appellate intervention.

Consequently, how come Plaintiff never procured the affidavit of the adverse driver?  This would have allowed a default to be entered.  It also would have made complete sense since the investigator had contact with the adverse driver!  This seems like a bout of doing the least to get the most – and getting burnt.

On to the case:

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (2d Dept. 2010)

“The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff’s counsel, and an affidavit of the plaintiff’s investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff’s investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]).”

The issue of “personal knowledge” as set forth in 3215(f) has confused me for years.  What is sufficient personal knowledge?  In a breach of contract for goods sold and delivered, this would be satisfied through the affidavit or verification of the plaintiff who is the victim of the breach.  In a negligence case, this would be the plaintiff’s affidavit or verification stating that he was in a motor vehicle accident.  The conclusion of negligence would flow from the act of the accident.  For no-fault benefits (in the second department as of now), this would be the affidavit or verification of a billing manager or the president of the corporation.

So what is necessary in a staged accident or “not in the car” case to satisfy the 3215(f) threshold?  It would seem that some affidavit, which presupposes an inference that the event is intentional or did not exist, would be what is required.  The Court of Appeals matter the Appellate Division cited to (Woodson v Mendon Leasing Corp., 100 NY2d 62) is interesting, because it does not really support the Dobbins court’s reasoning, as seen below:

“Having concluded that Supreme Court abused its discretion in vacating the default judgment, we also reject ATIC’s argument that, as an initial matter, plaintiff’s submissions in support of her motion for a default judgment were insufficient. CPLR 3215 (f) requires that an applicant for a default judgment file “proof by affidavit made by the party of the facts constituting the claim.” A verified complaint may be submitted instead of the affidavit when the complaint has been properly served (see CPLR 3215 [f]). Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists (see 7 Weinstein-Korn-Miller, NY Civ Prac ¶ 3215.24, at 32-326). Indeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.”

To me, I believe that Plaintiff’s presenting conflicting certified EUO transcripts in its motion for leave to enter a default should be enough to raise an issue of fact as to whether a viable cause of action exists.

And in light of the default, the defaulter would be”deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them.”  Id.

So, the Appellate Division may very well have been incorrect, in my opinion, for not reversing Supreme Court.

One last thing, and I say this because I was upset when I read this case, and am really annoyed that the Appellate Division cites to it.  The Appellate Division cites for support of its “hearsay” arguments, besides its Hochhauser case Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]”.

Read Shaid carefully.  I would just note that in Shaid, the declaratory judgment action was against the insured and the vehicle operator, both individually, as aiders abettors and as co-conspirators.  The statements that were made to the investigator in that case should have come in as admissions, admissions in furtherance of a conspiracy or declarations against penal interest.

In Dobbins, the statements was of a completely non-interested witness to an investigator.  This could only be admitted through the business record rule, which is now foreclosed because of Hochhauser.