VA substantive law; NY Procedural law

Acupuncture Now, P.C. v GEICO Ins. Co., 2018 NY Slip Op 51084(U)(App. Term 2d Dept. 2018)

“While defendant asserts that Virginia law applies to this case, as the insurance policy had been obtained in Virginia, and it insured a Virginia resident and vehicle, defendant failed to demonstrate that it had mailed its cancellation notice in accordance with its office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) “by registered or certified mail,” as required by the applicable statute (Va. Code Ann. § 38.2-2208 [A] [1] [a]). Consequently, the Civil Court should have denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.”

What is interesting here is that Civil Courts will apply substantive law from sister states but then apply NY procedural law.  This has been displayed many times (this is nothing new).  It appears “mailing” is procedural at best.

State Farm and Georgia – passes Appellate Term scrutiny

Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 50736(U)(App. Term 2d Dept. 2018)

I kept hearing musings about how State Farm’s receiving mail in Georiga and processing denials/payments/verifications and other CSO’s was somehow fatal to the timeliness of the disclaimer, verification or payment.  The usual “how do we know” line was also brought up.  But at the end of the day, State Farm processes its incoming mail through a modern 21st century system, logs its receipt and then sends its outgoing mail in a proper “Non-Allstate” and “Non-Progressive” manner.  Read the John Niles Allstate affidavit (old version) or the Appellate Division Progressive case for context to this comment.

I know Maiga was trying to bank on the Westchester v. Philadelphia case, but the facts just do not add up in the STate Farm context.

In any event, the mailing challenge was properly defeated.

“The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “[defendant’s] procedure for receipt of the bills in Georgia and processing and transmittal to and in [defendant’s] Ballston Spa [office].” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.”

“[W]e note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact.”

Mailing again

Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826 (2d Dept. 2018)

“Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure

“The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to Mandrin “in full compliance with all requirements of RPAPL § 1304” was insufficient to establish that the notice was actually mailed to Mandrin by first-class and certified mail “

Mailing – CPLR 4518(a)

Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175 (2d Dept. 2018)

“The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the “business records exception” to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed”

I have to imagine this would be a mailing ledger or some other documentary proof showing that an item was mailed?  A little different than in the no-fault scenario

 

Arizona and ATIC

Arizona Premium Fin. Co., Inc. v American Tr. Ins. Co., 2017 NY Slip Op 09263 (!st Dept, 2017)

I spent a few hours earlier this year reading the case file on this one.  For starters, ATIC’s attorney at the deposition of the ATIC defendants violated the new rules in spirit and substance.  I would have flipped out if I were Arizona’s attorney.

While an attorney at a deposition should not be a potted plant, they should not be actively interfering with the questioning.  Substantively, the case involved claims of notices of cancellation that Arizona through the POA it possessed and invoked not being received by ATIC.  Arizona  was granted summary judgment on less than half the claims (it was clearly received).  On the remainder, the mailroom gentleman ad his deposition admitted at his deposition that he would received incorrectly addressed envelopes (that was the issue of fact) requiring a jury trial on whether ATIC received the cancellations.  Just amazing.

As a plaintiff, when ATIC denies receipt, you might want to read Louis Campbell’s deposition in this case.

Allstate’s inability to prove the timely mailing of claims documents

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51903(U)(App. Term 2d Dept. 2017)

Renelique v Allstate Ins. Co., 2017 NY Slip Op 51884(U)(App. Term 2d Dept. 2017)

Compas Med., P.C. v Allstate Ins. Co., 2017 NY Slip Op 51842(U)(App. Term 2d Dept. 2017)

Healing Art Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51821(U)(App. Term 2d Dept. 2017)

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2017 NY Slip Op 51791(U)(App. Term 2d Dept. 2017)

KHL Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51709(U)(App. Term 2d Dept. 2017)

Charles Deng Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51716(U)(App. Term 2d Dept. 2017)

Mortgage cases are now leading the charge on mailing issues

HSBC Bank USA v Rice, 2017 NY Slip Op 07936 (1st Dept. 2017)

“In the affidavit, the loan servicer’s vice president of loan documentation fails to demonstrate a familiarity with the servicer’s mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890 [2d Dept 2017]; Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049 [2d Dept 2017]). Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not [*2]sufficient to establish proof of the actual mailing”

It was not mailed

Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50496(U)(App. Term 2d Dept. 2017)

Jesus.  I get it, it is a volume business and we all make mistakes.  I am raising my hand here.  Guilty as charged.  Saw two on my desk.  We had a group discussion and it will not happen again.  What did we not do?  Appeal.

But now you appealed a sloppy loss?  And how come the carrier has not filed a malpractice lawsuit for this among others?

“Upon a review of the record, we find that defendant failed to establish that the denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been properly and timely mailed. The affidavit of defendant’s claims adjuster did not state how defendant obtains the mailing address for the denial of claim forms, so as to ensure that the address is correct, or that the envelopes are affixed with postage”

Notice of intent to cancel – premium finance company

Island Life Chiropractic, P.C. v Country Wide Ins. Co., 2016 NY Slip Op 51378(U)(App. Term 2d Dept. 2016)

“While the affidavit of defendant’s no-fault litigation supervisor described defendant’s mailing practices and procedures with respect to claims processing, it did not describe the process involved where other correspondence, such as a notice of cancellation, is mailed. As a result, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in order to effectuate the cancellation (see generally Vehicle and Traffic Law § 313; Banking Law § 576).”

The affidavit needed to extend the process to notices of  cancellation (in addition to form NF-10)

Allstate mailing issues

I am unsure what has changed at Allstate but there seems to be an issue proving anything is timely, properly or even close to mailed

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51377(U)(App. Term 2d Dept. 2016)

Synergy First Med., P.L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51365(U)(App. Term 2d Dept. 2016)

K.O. Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 51367(U)(App. Term 2d Dept. 2016)

Ultimate Health Prods., Inc. v Allstate Ins. Co.. 2016 NY Slip Op 51353(U)(App. Term 2d Dept. 2016)

Compas Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 51356(U)(App. Term 2d Dept. 2016)
Renelique v Allstate Ins. Co., 2016 NY Slip Op 51357(U)(App. Term 2d Dept. 2016)