Ross v Geico Indem. Co., 2019 NY Slip Op 04242 (3d Dept. 2019)
” In October 2014, defendant denied plaintiff any additional no-fault insurance lost wage benefits after receiving notification from Walmart that plaintiff was terminated from employment due to her lack of compliance with Walmart’s leave of absence guidelines. Plaintiff thereafter commenced this action against defendant claiming her continued entitlement to no-fault lost wage benefits. Following a nonjury trial, at which plaintiff was the sole witness, Supreme Court determined that defendant had properly denied plaintiff additional no-fault lost wage benefits and dismissed plaintiff’s complaint.”
There is no dispute that plaintiff sustained disabling injuries as result of the accident that prevented her, at least initially, from returning to work at Walmart. Based thereon, she obtained a leave of absence from Sedgwick, short-term disability benefits through Walmart’s disability carrier through July 7, 2014 and no-fault lost wage benefits from defendant through September 2014. Plaintiff acknowledges that Sedgwick approved her initial request for a leave of absence and that she thereafter twice communicated her status to Sedgwick by providing copies of doctor’s notes excusing her absence from work. However, the last doctor’s note that plaintiff provided prior to her termination, dated January 17, 2014, only excused her absence from work until March 1, 2014, and there is unrefuted record evidence that she had been advised of the need to provide updates regarding her status. By separation notice dated May 6, 2014, Walmart notified plaintiff that her employment was to be terminated as of May 23, 2014 based upon her “failure to return from leave [of absence].” Walmart also provided plaintiff an exit interview document, wherein it reiterated the basis for plaintiff’s termination and further indicated that plaintiff had failed to file for an extension of her leave of absence after March 26, 2014 and had not otherwise been in contact with Walmart’s personnel manager since such time.
“This is not an action for wrongful termination, and it was not defendant who terminated plaintiff’s employment. To the extent that plaintiff believes that she was wrongfully terminated, she may pursue any legal remedies that she may have against Walmart and/or Sedgwick. Defendant, however, was entitled to rely on the documentation it received from Walmart indicating that plaintiff was terminated from employment for reasons unrelated to her injuries (cf. State Farm Mut. Auto Ins. Cos. v Brooks, 78 AD2d 456, 459 , appeal dismissed 54 NY2d 753 ). Moreover, contrary to plaintiff’s assertion, there is nothing in the record demonstrating that her termination from employment and subsequent denial of no-fault insurance benefits was deliberately intended to circumvent defendant’s obligation to provide plaintiff with lost wage benefits. Accordingly, giving deference to Supreme Court’s factual findings, we find that defendant properly denied plaintiff continuing no-fault lost wage benefits.”
It has always been interesting because under established precedent, the injured person gets a pass if he or she gets fire while disabled. Thus, leaving a job while disabled was never an issue. Here, the Court has held that job abandonment ends the inquiry.
Moshe v Country-Wide Ins. Co., 2019 NY Slip Op 29138 (Dis. Ct. Nassau Co. 2019)
I love this case. It makes little sense for many reasons. But what is perplexing is how much of the income of Moshe is active? He missed a day of work – what business opportunities were missed? What passive income was lost due to his not being at work? I really do not know how the heck you prove any of that without expert testimony (see below)
But in the prior motion sequence, the judge prevented Defendant from obtaining a deposition. As can be seen in this decision, a deposition is absolutely necessary to figure out how you get to the $12,000 figure. I would have appealed that decision and stayed the trial.
Because when you read this decision, how is Countiwide going to really defend this case except to argue that Plaintiff cannot prove its case? The EUO in the underlying case had to do with the facility, not how its owner gets paid per diem. So this case, to me, is a mess. Plaintiff’s theory of recovery is amorphous, C-wide failed to get an absolutely necessary deposition to figure out how it will defend this case and the trial will be unwieldy.
The relevant allegations
“Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is the owner.
There is no dispute that pursuant to the relevant provisions governing EUO’s involving first-party no-fault insurance claim(s) the deponent is entitled to ‘loss of earning’ caused by attendance at the EUO (22 NYCRR 65-3.5[e]).
As alleged in plaintiffs’ complaint, on or about November 6, 2015 — prior to the November 10, 2015 EUO — counsel for Excel advised counsel for Country-Wide Insurance Company (Country-Wide) that Moshe claimed a loss of earnings of $12,186.14 (Complaint at ¶ 24). In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint Federal tax return which showed $320,000 in ‘Wages, salaries tips, etc.’ and an additional $2,604,942 in ‘Rental real estate, royalties, partnerships, S corporations, trusts, etc.’ (Complaint at ¶ 24; defendant’s exhibit D [tax return].) Despite demand for confirmation that full payment would be made at the conclusion of the deposition (Complaint at ¶ 24), Country-Wide neither committed to payment nor rejected same (Complaint at ¶ 26). Instead, following the EUO, on or about March 10, 2016 Country-Wide remitted $1,280.00 as its calculation of Moshe’s loss of earnings (Complaint at ¶ 36).
The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00).”
The Court’s decision
“Consistent with the clear language of 11 NYCRR §65-3.5(e) and regardless of the formulaic manner in which the parties approach the calculation of lost earnings, the focus should be on the actual monetary loss incurred by reason of plaintiff’s attendance at the EUO. As defined by PJI 2:290, albeit in the context of personal injury, loss of earnings means “reduction in capacity to earn money”. That Moshe was entitled to payment of lost earnings caused by attendance at an EUO and not a physical injury is irrelevant to the meaning of the term and, hence, the method of calculation.
Movant and cross-movants fail to provide any particularity or evidence of what Moshe’s companies do, what was happening on November 10, 2015 or why Moshe’s unavailability for an undisclosed number of hours on that date caused earnings loss. Passivity alone is not the criteria – a day trader may be involved with purely passive assets but the inability to trade on a particular day may have consequences in monies lost that otherwise would not have been. Given the wholesale absence of relevant evidence supporting the parties’ respective claims, neither side has made the requisite prima facie showing.”
I think Plaintiff will need an expert economist to win. There is no way in this case that lay testimony can prove the amount of lost income within a reasonable certainty. In fact, had this been done in the beginning, this might have been a larger case. Alternatively, it could have been a smaller case. But without expert testimony, this case is just for the birds.
Moshe v Country-Wide Ins. Co.. 2018 NY Slip Op 28220 (Dis. Ct. Nassau Co. 2018)
(1) “Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is owner.”
(2) “In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint federal tax return which showed $320,000.00 in “Wages, salaries tips, etc.” and an additional $2,604,942.00 in “Rental real estate, royalties, partnerships, S corporations, trusts, etc.” (Complaint at ¶ 24; defendant’s Exhibit D [tax return]”
(3) “The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a “second” deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due him for his loss of earnings incurred by his appearance at first deposition.
() Plaintiffs oppose defendant’s current notice to again depose plaintiff Moshe contending that the first deposition should have included the “loss of earnings” issue. In effect, plaintiffs would have this court find that defendant’s failure to address the loss of earnings issue in the context of the first-party no-fault claim constitutes a waiver of defendant’s right to now depose him in the context of this action.
(5) “Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 22 NYCRR § 65-3.5[e]. This is so regardless of which party ultimately prevails in fixing the amount of Moshe’s loss of earnings for his appearance at the first deposition.”
(6) “Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant’s right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.”
Look, this decision is wrong. When you bring a plenary action, you are subjected to a deposition. Even the First Department gave the “cf” treatment to Ralph Medical v. Mercury in Acupuncture Approach.. What is more concerning this: Why would you bring a plenary case that would expose Mr. Moshe’s tax returns? My eyes are rolling at this one.
Martinez v Metropolitan Transp. Auth., 2018 NY Slip Op 02028 (1st Dept. 2008)
“Plaintiff failed to establish her past lost earnings with reasonable certainty since her testimony was unsubstantiated by tax returns, W-2 forms, or other documentation (Orellano v 29 E. 37th St. Realty Corp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 ; cf. Kane v Coundorous, 11 AD3d 304, 305 [1st Dept 2004] [plaintiff’s testimony about lost earnings sufficient where defendants “expressly declined to challenge such testimony by the use of the W-2 forms in their possession”]).”
My sources certain insurance companies refuse to pay plaintiff healthcare practitioners who come in for EUOs. Question always becomes how do you prove lost wages? Healthcare professionals are loathe to give up their tax records and bank statements. Those “marketing charges”, “maintenance charges”, “computer upkeep charges” – well are a Pandoras box that makes payroll for SIU defense firms
What “other documentation” can prove lost wages?
Freligh v Government Employees Ins. Co., 2017 NY Slip Op 08714 (2017)
“Triable issues of fact exist as to plaintiff’s claim for lost wages. ”
This was the case where the Appellate Division, Third Department went to great pains to show that the Plaintiff’s lost wage claims were the textbook definition of speculative. The dissent argued that these were pure credibility issues being decided on summary judgment motion. The Court of Appeals reversed.
Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017)
Admittedly, I like the issue of lost wages. I am convinced few practitioners understand all the nuances involved – I will not say more. It is clearly an undeveloped area of no-fault law and seemingly all over the place. Perhaps that is why I bring these actions or arbitration – they are intellectually entertaining at times.
A firm upstate I tried a case involving medical bills (one week jury trial in Kingston) leads the charge on these cases. Their results are quite good. This one ended in a 3-2 decision ending in dismissal. I hope Derek takes it up to the Court of Appeals, because it looks like a fascinating case.
The cliff-notes version of this case is that the EIP was unemployed when the accident occurred. Prior to the accident, he was offered a job to run a parts plant. He was unable to do so because of his accident. The EIP projected a certain income on his claim forms.
The defense and the basis for summary judgment was that the job opportunity was a farse. Various pieces of evidence, including documentary, deposition and FOIL responses proved (in the eyes of the Court) that the sought after job opportunity was unreasonable as a matter of law and Plaintiff’s claim of income at this job lacked legal merit. The Court reversed Supreme Court and dismissed the complaint.
The dissent stated viewing the evidence in the light most favorable to the non-moving party, a rational fact finder could find the job opportunity legitimate and would have affirmed.
If this goes to the Court of Appeal, it is hard to figure out where they will go with this one.