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.
3 Responses
“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?”
The app term 2nd has been relieving MVAIC from all its burdens, both as an insurance carrier and as a litigant in pending court actions. It appears this Court doesn’t like Hosp. Medical Center of Queens so it is ignoring it without referencing it as not to piss off the Appellate Division.
It’s been a gravy train for MVAIC before this Court, which has apparently resulted in a complete lack of claims processing for them– no burdens at law, no claims processing, no litigation work. Funny how that works. The 1st Department courts are not buying the snake oil.
We expected this App Div win. We never expect any win before the App Term 2nd. We have some very interesting appeals pending which make it clear that MVAIC has taken advantage of the current state of affairs. We have illustrated how MVAIC’s legal position regarding “no coverage” works in lockstep with disingenuous claims processing. It will be very interesting to see how these coming appeals will go.
I never really researched MVAIC issues until recently because my practice has never involved MVAIC. It still does not, but Interboro Rehab v. MVAIC really got me starting to think about these issues.
Having begun to research MVAIC, I have become quite upset at the level of special treatment MVAIC gets. I am a defense guy and I have gone as record as to my disagreement with the allocations of the evidentiary burdens in the typical no-fault matter. That being said, it seems completely unbelievable that MVAIC gets away with things that have cost my clients hundreds of millions of dollars.
My papers used to say the following before I had to tone it down: “MVAIC — or Maniac as they are affectionately called — has a mystical belief that absolutely no one has any coverage.”
But Eva and others kept having to apologize to the Courts and adversaries at oral argument so I cannot say things like that anymore.