Compas Med., P.C. v Travelers Ins. Co., 2016 NY Slip Op 51247(U)(App. Term 2d Dept. 2016)
“In support of its motion, defendant submitted affidavits by its claim litigation representative and products specialist, which affidavits established that the vehicle which had been driven by plaintiff’s assignor at the time of the accident on January 18, 2011 was not covered by the insurance policy at issue. Consequently, defendant demonstrated, prima facie, that “the alleged injur[ies] do not arise out of an insured incident”
I recall some older cases that made it a point to stress that affidavits and testimony regarding coverage and mailing of the cancellation letters must be made by an underwriter. Currently, I am at a loss to recall those cases.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51240(U)(App. Term 2d Dept. 2014)
“Despite plaintiff’s contention to the contrary, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident”
This is a good case because the briefs that i get from certain firms state that an exhaustive search is necessary to determine that there is no policy of insurance in effect. While a conclusory “I looked and saw nothing might not be sufficient”, there is no need to go into the intricate detail of underwriting. A happy medium – 2 paragraphs – should do the trick.
I was really close to blogging about this interesting Third Department case involving a writ of prohibition that was actually granted, preventing the Sullivan County District Attorney from retrying this poor hunter who had bad aim. (Matter of Robar v Labuda, 2011 NY Slip Op 03319 [3d Dept. 2011] . But, how many who read this are concerned with that stuff?
Anyway, an interesting case arose involving the proof required to demonstrate the failure of an insurance carrier to prima facie demonstrate lack of coverage while, interestingly, raising an issue of fact as to same.
Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50743(U)(App. Term 2d Dept. 2011):
Here was the proof that was presented: “Defendant’s opposition papers consisted of a police accident report indicating that plaintiff’s assignor, Reuven Hafizov, was the operator of a vehicle registered to Aharon Shimonov and insured by defendant; a copy of an application for no-fault benefits seeking benefits under a purported policy issued to the purported policyholder under a purported policy number; claim denial forms denying the bills received by defendant because defendant’s records indicated that Aharon Shimonov did not have a policy with defendant; and an affidavit of a claims representative stating that a search of defendant’s records revealed that State Farm did not issue an insurance policy to Aharon Shimonov under the purported policy number.”
What was missing? An affidavit from an underwriter.
Interesting observation also: “Contrary to the finding of the Civil Court, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]).”
Finally, for purposes of Mr.Gottlieb’s CPLR blog and something that is quite interesting: “With regard to defendant’s contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits”
Matter of Mvaic v Interboro Med. Care & Diagnostic PC, 2010 NY Slip Op 04522 (1st Dept. 2010)
“MVAIC defended the arbitration on the ground that the police accident report showed that the offending vehicle was registered out-of-state and was insured, but the arbitrator refused to consider that defense on the merits on the ground that MVAIC had failed to pay or deny the claim within 30 days of its submission, as required by the no-fault law (Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a]; [c]). This was contrary to settled law (see generally Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 ) recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 ). New York Hosp. Med. Ctr. of Queens v MVAIC (12 AD3d 429 [2d Dept 2004], lv denied 4 NY3d 705 ), relied on by the arbitrator, did not involve a lack of coverage issue.”
A few things should be observed. First, note the special treatment the courts give MVAIC as opposed to that given the insurance carriers that my fellow brethren and I regulalry defend. That being said, the Appellate Division correctly found the existence of a triable issue of fact as to coverage. But note how the Appellate Division, Second Department has insulated most arbitration awards from judicial scrutiny, whereas the First Department appears willing to look at the merits of an arbitral dispute.