New Way Med. Supply Corp. v Dollar Rent A Car, 2015 NY Slip Op 51794(U) (App. Term 2d Dept. 2015)
An exhaustive affidavit is not necessary. The following is the requisite proof:
“2. [A] Dollar vehicle was not involved in an alleged vehicular collision on June 18, 2011, a loss for which plaintiff’s assignor allegedly received medical treatment.
. . .
6. The claimant Jacen Adams (nor Adams Jacen) did not appear in any claimant name search. There are no records of an accident associated with said individual in Dollar’s system.
7. Secondly, Dollar is a self-insured entity and does not issue automobile policies to individuals or other entities.
8. Based upon the foregoing, I can attest with certainty that a Dollar vehicle was not involved in this particular vehicular collision on June 18, 2011, the loss for which plaintiff claims entitlement to No-Fault reimbursement.”
They said this is enough to prove prima facie no accident.
St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (2d Dept. 2010)
“In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff’s assignor was injured was not an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d at 199).”
Since i wondered what this case was about, I copied the relevant portions of the motion papers from the clerk’s office. Here is what I found out:
This case involves the “my car was not there” defense. There were numerous EUO’s that were done in this case and, without going into detail, the substance of the proof was sufficient to grant defendant summary judgment.
As to the form of the papers, the defendant annexed uncertified EUO transcripts and documentation without a business record foundation or other type of foundation. Plaintiff in his opposition papers objected to the form of Defendant’s evidentiary presentation. While I was unable to read the appellate briefs, I would imagine that Plaintiff’s admissibility argument was also presented in its Respondent’s brief. Thus, it seems interesting that Defendant was able to get this decision reversed.
I will upload the relevant portions of the motion papers once my scanner behaves itself. The relevant portions of the motion papers in St Vincent v. Allstate are uploaded for your review. Click on the previous hyperlink.
The District Court found that a detailed affidavit was sufficient to show that the vehicle was not involved in a motor vehicle accident
In the recent matter of St. Johns Hospital v. State Farm (Nassau County Index #: 11997/08), which we defended on behalf of State Farm, Judge Chaikin found that the State Farm’s insured’s vehicle was not involved in the underlying motor vehicle accident. I think this case represents a good blue print for what a defense attorney should do to successfully defendant this type of a case.
As a footnote, a special thanks goes to Claim’s Representative Clifford Koeppel for tracking down State Farm’s insured, Tabitha McDaniel. He was able to find her when neither our investigator nor I could locate her. Without his invaluable assistance, this victory would not have not been possible.
Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 52601(U)(App. Term 2d Dept. 200)
“In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do not arise out of an insured incident”
You saw it again. A medical provider prosecuted a causation case on behalf of a pedestrian and lost. Now the pedestrian/assignor is collaterally estopped from litigating the causation issue in her potential personal injury claim against the driver of the vehicle that allegedly hit him.
If a court determines that there is privity between the plaintiff assignee’s attorney and the assignor and there is personal injury claim where the assignor is the plaintiff, then there might be a malpractice claim in the horizon. Ouch.
In another case involving the defense of lack of contact with a pedestrian, the Appellate Term in Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U)(App. Term 2d Dept. 2009) affirmed the order of the Civil Court that granted the insurance carrier summary judgment, dismissing the complaint. The pertinent parts of the affidavit of the insured that was found to be sufficient to make a prima facie case of lack of involvement was as follows:
“[d]efendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.”
Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co.
2009 NY Slip Op 50736(U)(App. Term 2d Dept. 2009)
One of the biggest problems medical providers dealing with assigned claims have is defending against certain coverage issues. This usually involves in hit and run cases, “it never happened cases” and even causation defenses, predicated upon a degeneration claim.
If a carrier’s papers are satisfactory on its motion for summary judgment and sufficient to shift the burden to the Assignee provider, then the provider many times needs to procure the assistance of its Assignor. And we all know the effort and sheer impossibility it many times takes to locate the Assignor.
That is what appears to have happened here. I would opine that this happens frequently on the “my car did not make contact with that person” or “It was not me” defense.
Here are the facts:
“In support of its motion, defendant annexed affidavits from its insured and its insured’s wife in which they stated that although they own a 1995 Oldsmobile, they live in Fredonia, New York and neither they nor their vehicle was involved in an accident in Brooklyn. They further stated that they are the only individuals who have access to their vehicle and that they have not been to Brooklyn in over 30 years.”
Plaintiff could not or did not procure an affidavit or other admissible proof to raise an issue of fact. Summary judgment was granted to Defendant.
Not only did Plaintiff lose, but here comes the real rub.
Plaintiff Assignor, who was probably a pedestrian, will probably be collaterally estopped from contesting in his or her BI or even UM case that he or she was hit by the 1995 Oldsmobile. This is classic Lobell.
I guess my thought, and you can tell me if I am wrong, is that you need to be really careful when litigating certain coverage issues in the context of an assigned no-fault case. You just never know when a potential malpractice claim may be brought by the Assignor, who is in privity with the Assignee, when that Assignor learns that he or she is collaterally estopped from bringing or succeeding on his or her BI or UM case.
I would go so far as to say that the minute a coverage issue that can really hurt an Assignor arises in an assigned no-fault action, execute a stip of discon. If the Defendant will not consent, then move to discontinue without prejudice.