Fraudulent procurement defense not substantiated

Quality Med. Care, PC v Progressive Cas. Ins. Co., 2017 NY Slip Op 50999(U)(Civ. Ct. Bronx Co. 2017)

I read this and I think the Court missed the issue, yet arrived at the result it should have.  First issue: a material misrepresentation defense (Ins Law 3105) does not require an intentional misrepresentation.  That said, second issue: proof must be adduced as to the rate difference,  Third issue: assuming it is not an AIP policy (statutory rates).  the underwriting manual must be entered into evidence.

The Court got lost on issue one and briefly addressed issue two (but never ruled on it) and failed to address issue three.

Too many moving pieces on these cases.

Point one: “The record is devoid of what actions, if any, the defendant took in regards to Ms. Murphy’s automobile insurance policy after having actual knowledge that she was residing in Jamaica, New York. Apparently, the defendant subsequent to the automobile accident decided to disclaim payment of Ms. Murphy’s medical bills on the purported basis that at the time the application for insurance was submitted by her that she provided a false residential address.”

Not a real issue.  Estoppel  is generally not a defense to a fraudulent procurement defense.  Perhaps now it is?  There is no case law on the topic.

Second issue: “there is no evidence attesting to her intent”  Irrelevant.

No testimony as to the rate difference:  “The best that this court can surmise, is that there must be a price differential in the policy premiums charged in Rochester, New York and Jamaica, New York, with the latter premiums being higher as this appears to be the motive attributed by defendant to the plaintiff’s assignor”

That is all she wrote on this one.


Georgia Law and New York law on material misrepresentations

JCC Med., P.C. v Infinity Group, 2016 NY Slip Op 26439 (App. Term 2d Dept. 2016)

(1) It is uncontroverted that defendant had issued a Georgia automobile insurance policy to the brother of plaintiff’s assignor, “effective from August 28, 2010 through August 28, 2011,” who had made various representations to defendant in his insurance application, including that he resided in Georgia, that the insured vehicle was garaged in Georgia, and that the assignor was an adult who resided in his Georgia household and also drove the insured vehicle.

(2) “Upon a review of the record, we find that defendant failed to show that there is a conflict between the laws of Georgia and New York with respect to the retroactive rescission of an automobile insurance policy which has been issued to a natural person for a private passenger vehicle, as both states prohibit the retroactive rescission of such a policy (see Vehicle and Traffic Law § 313; Matter of Government Empls. Ins. Co. v Nichols, 8 AD3d 564 [2004]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]; see also Geogia Code Ann §§ 33-24-44, 33-24-45; Sentry Indem. Co. v Sharif, 248 Ga 395, 282 SE2d 907 [1981]; Liberty Ins. Corp. v [*2]Ferguson, 263 Ga App 714, 589 SE2d 290 [2003]; FCCI Ins. Group v Rodgers Metal Craft, Inc., 2008 WL 2951992, *7-8 [MD GA, July 28, 2008, No. 4:06-CV-107 (CDL)]; cf. T.J. Blake Trucking, Inc. v Alea London, Ltd., 284 Ga App 384, 643 SE2d 762 [2007] [the insurance policy was not issued to “a natural person” and, therefore, the policy could be retroactively rescinded pursuant to Georgia Code Ann § 33-24-7]).”

The plight of the innocent Assignor who entered a vehicle not knowing that it embodied the misrepresentation.

Material misrepresentation again

Joseph v Interboro Ins. Co., 2016 NY Slip Op 08050 (2d Dept. 2016)

(1) “Based on the information provided by McKayle, Karis completed an application for insurance, which said that the premises would be occupied by the plaintiffs as their primary residence. The plaintiffs signed the application, and thereafter, on the date of closing, a homeowners’ insurance policy was issued by the defendant Interboro Insurance Company (hereinafter Interboro). After a fire occurred at the premises, Interboro discovered that the plaintiffs did not occupy the premises as their primary residence and rescinded the policy, contending that the plaintiffs, through a material misrepresentation, induced Interboro to issue a policy that it normally would not have issued.”

(2) “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d at 994; see Insurance Law § 3105[b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices that show that it would not have issued the policy if the correct information had been disclosed in the application

I will  pause at point number two since this important.  Many of the fraudulent procurement defenses seem to go awry on the Fatmir rule, that as originally constructed required the underwriting manual.  Seeing that this rule is overly onerous, Joseph now modifies this rule to require “documentation” covering the underwriting practices.

Fraudulent procurement has now been changed into a material misrepresentation defense

Renelique v National Liab. & Fire Ins. Co., 2016 NY Slip Op 51615(U)(App. Term 2d Dept. 2016)

It appears that Oleg Rybak has gotten his point across that the “fraudulent procurement” defense is really a material misrepresentation defense in disguise.  This defense has to fit within the parameters of Ins Law 3105 and be supported with proof from a underwriting manual.

“Defendant’s cross motion was based upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence. As plaintiff argues, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). Consequently, defendant’s cross motion should have been denied.”

Proof of military status not enough on a material misrepresentation DJ

Healthy Way Acupuncture, P.C. v USAA Gen. Indem. Co., 2016 NY Slip Op 51342(U)(App. Term 1st Dept. 2016)

“While defendant submitted evidence showing that plaintiff’s assignor misrepresented his military status in the underlying insurance policy application, defendant is precluded from asserting that defense as a result of its untimely denial of the claim (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d, 11th & 13th Jud Dists]).”

The result here was preordained.


The Court comments on a copy and paste job

Infinity Ins. Co. v Nazaire, 2016 NY Slip Op 31454(U)(Sup. Ct. Kings Co. 2016)

This is a PA rescission case based upon a garaging issue.  The Court caught on to something interesting.  First, the EUO of the Defendant was not annexed to the moving papers.  Second, the Court found the investigator affidavit to be hearsay.

Third, the footnote said:

“The affidavit of the plaintiffs litigation specialist appears to be, in the antiquated words of one court, a “mere mechanical job of paste pot and shears” (TC. Theatre Corp. v Warner Bros. Pictures, 113 F Supp 265, 271 [SD NY 1953], rearg denied 125 F Supp 233 [SD NY 1953]). The boilerplate text of her affidavit is formatted in regular size font, while the variables are highlighted in bold size font to make it easier for her to make changes depending on the facts of a particular claim.  Her affidavit here does not have all of the correct variables. Notably, para  23 of her affidavit refers to one Nandslie Jean Louis as the policyholder, rather than Jude.”

Interesting read.  My advice to Plaintiff insurance carrier counsel: slow down and proof read.  Being a speed demon does not make friends in the judiciary…

Fraudulent procurement defense looks more like a 3105 defense

Compas Med., P.C. v Praetorian Ins. Co., 2016 NY Slip Op 51000(U)(App. Term 2d Dept. 2016)

“Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.”

The citing of Fatmir now opens up a new door regarding the evidence necessary to substantiate “material misrepresentations” in establishing a fraudulent procurement defense.

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105 [b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application

The case-law defined argument as I understood it was that the defense was predicated upon the “fraudulent procurement” of an insurance policy and not what could be classified as a “material misrepresentation” defense.  The difference, while subtle, was the difference between application of Fatmir and a standard presentation of proof where the coverage specialist gives testimony relative to the policy premium amounts relative to the policy as written and the policy as should have been written.

But this is the first time that the application of Ins. Law 3105 has been introduced into the fraudulent procurement paradigm.   I would categorize this case as a game changer, although not as significant as when the Second Department held that fraudulent procurement was a precludable defense.  (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., [80 AD3d 603 [2d Dept. 2011])

The permissive use statute trumps the rental agreement

ELRAC LLC v Duque, 2016 NY Slip Op 26169 (App. Term 1st Dept. 2016)

This is not a no-fault issue but something that has always worried me in my own life.  Assume like many people you rent a car.  Furthermore, assume you let someone drive it who is not on the rental contract.  That someone else gets into a car accident.  Under New York law, the rental company is primary for the standard 25/50/10 and $50 PIP.

Assume the rental company pays our monies to settle the third-party liability and/or PD case.  Now, the rental company wants their money back from you, the renter.  The theory for recovery is that you breached the contract through allowing someone drive the vehicle.

It was thought in the subrogation circles that this was a viable basis of recovery.  The Appellate Term has now held otherwise and appears to be applying the anti-subrogation rule (an insurance carrier cannot generally recover from its own insured the amounts it pays out on the insurance contract covering the insured)

The theory is that the rental car is self-insured; the coverage is not contractual but forced upon the rental car company; and the vehicle was used outside of the scope of contractual use between the renter and rental company.  The Appellate Term disagreed and stated the following:

“Section 388 of the Vehicle and Traffic Law states that the owner of a motor vehicle may be held civilly liable for any damage caused by the owner or any permissive user of the vehicle. Vehicle and Traffic Law § 370 requires rental car companies to provide insurance for their [*2]vehicles, including minimum liability coverage of $25,000 for bodily injury, and further requires that such insurance “inure to the benefit” of any permissive user of the vehicle (Vehicle and Traffic Law § 370[1][b]). As a result of the interplay of §§ 370 and 388, a rental car company such as Enterprise is prohibited from seeking indemnification from its renter “for amounts up to the limited liability requirements” of the Vehicle and Traffic Law (Elrac, Inc. v Ward, 96 NY2d 58, 73 [2001], rearg. denied 96 NY2d 855 [2001]). Since the underlying claim is for a sum considerably less than the statutory minimum of $25,000, the action must be dismissed. To allow Enterprise to pass on the $9,000 cost to its insured would permit Enterprise to avoid the coverage it was statutorily bound to provide (id. at 77).”

I am curious if instead of bringing suit under a breach of contract, the rental company can bring suit under a “fraudulent procurement” theory.  This of course requires ELRAC to assert that the vehicle would not have been rented to the renter had it knew the ULD was operating the vehicle.  Assuming this is answered in the affirmative, then a Kaplun type recover is appropriate.

Material misrepresentation?

Renelique v National Liab. & Fire Ins. Co., 2016 NY Slip Op 50254(U)(App. Term 2d Dept. 2016)

“With respect to defendant’s cross motion, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). No-fault benefits may be denied to an insured where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon the record before us, we find that defendant failed to establish as a matter of law that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums

The question is what is necessary regarding the type of “material misrepresentations” that are necessary to demonstrate a fraudulent procurement defense.  I also do not see any notion that the underwriting handbook has to be presented here, making this different than a 3105 misrepresentation.

Why was misrepresentation material?

Gutierrez v Tri State Consumers Ins. Co., 2015 NY Slip Op 51703(U)(App. Term 2d Dept. 2015)

“Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material”

I sense the lack of materiality flowed from the failure to indicate that this misrepresentation would have caused the premium to be greater,