Great Health Care Chiropractic, P.C. v Omni Indem. Co., 2013 NY Slip Op 51450(U)(App. Term 2d Dept. 2013)
“In support of its motion, defendant submitted affidavits of its litigation manager and the claims litigation manager of American Independent Insurance Company (AIIC) which sufficiently established defendant’s lack of coverage defense”
“Notably, the AIIC claims litigation manager attested that his company had issued the policy in question. Consequently, defendant demonstrated that plaintiff had sued the wrong insurance carrier and that defendant was not the carrier which covered the present accident.”
On this case, the carrier looks to have relied on the affidavit of a claims representative who stated that the insurance carrier was insured the adverse vehicle. Usually, the courts have held that an underwriter’s affidavit was necessary to make a prima faice showing of lack of coverage. This case seems to represent a break from prior precedent.
Omega Med. Diagnostic v MVAIC, 2011 NY Slip Op 50275(U)(App. Term 1st Dept. 2011)
They just really do not like MVAIC at 60 Centre Street. Hard to imagine why.
Some have said no-pain, no gain. But, how much pain does one have to endure before it becomes apparent that “something is rotten in the State of Denmark.”
S & L Med. P.C. v MVAIC, 2010 NY Slip Op 51885(U)(App. Term 1st Dept. 2010)
“While MVAIC was not precluded by its conceded untimely denial of plaintiff’s claim from asserting the defense that plaintiff’s assignor was not qualified to receive no-fault benefits (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 ), MVAIC failed to establish that defense at trial.”
Also, at the rate things are going for MVAIC, this case should have been named “SNL Medical, P.C. v. MVAIC.” This comedy show has to end. It is embarrassing to the defense bar.
Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C., 2010 NY Slip Op 07111 (1st Dept. 2010)
Sometimes, you win the battle but lose the war. The best instance of that paradox in no-fault practice involved the Appellate Division’s holding in Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 (1st Dept. 2010), when that Court, after handing MVAIC a victory, stated the following: “We would add that the burden is on MVAIC to prove its lack-of-coverage defense.”
Then came Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 28 Misc 3d 141(A)(App. Term 1st Dept. 2010), where the Appellate Term, First Department, held the following: “In opposition, defendant, which bore the burden of proving its lack of coverage defense, failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff’s assignor’s loss arose from the use or operation of an uninsured motor vehicle”.
Now, the saga continues with Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C.2010 NY Slip Op 07111 (1st Dept. 2010), where MVAIC was trying to prove a lack of coverage through averring that the Assignor resided in a household where Allstate provided coverage. Procedurally, MVAIC sought to adjourn the case in order to provide this evidence. The adjournment was denied and an award in Respondent’s favor was granted.
A common theme through all of these cases is that MVAIC is trying to get around certain claims handling issues through asserting the special “coverage defense” it has that no other insurance carrier enjoys. Why MVAIC does not consistently clear up these coverage issues through seeking timely verification requests is beyond me. Also, why doesn’t MVAIC submit certified insurance expansion reports?
In my opinion, it appears to me that the courts, especially in the First Department, are sending a message to MVAIC that they need to play by the rules that the rest of us on the defense bar are forced to abide by.
Lenox Hill Radiology v Government Empls. Ins. Co., 2010 NY Slip Op 51638(U)(App. Term 1st Dept. 2010)
“Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold…. [t]he obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured.”
This is an extremely important case. I am not sure how many of you out there can read between the lines on this one. I will say that Lenox Hill’s argument was definitely reasonable, but the rules of no-fault practice and that of standard liability coverage cases can at times diverge. Remember what the Appellate Division held in Utica v. Timms, before you cast judgment on this court’s holding.
I also must reiterate something I stated in a post last week that the Appellate Term, First Department, tends to side with the carriers on issues involving coverage, exclusion and conditions precedent to coverage. I also tend to think that the Appellate Term, Second Department may have come to a different conclusion on a similar set of facts. See e.g., Psych. & Massage Therapy Assoc. v. Progressive Cas. Co., 12 Misc.3d 140(A)(App. Term 2d Dept. 2006).
What do the 200 readers a day who read this think?