Key Takeaway
NY No-Fault legal analysis: Mallela defense standards, burden of proof & pending Rabiner claims. Insurance case law update from State Farm v. Mallela
The Rabiner cases
I just saw this on No-Fault Paradise and thought it was an interesting decision for a few reasons. First, the court left open the issue as to whether a Mallela defense must be proven by clear and convincing evidence. See, State Farm Mut. Auto. Ins. Co. v. Robert Mallela 4 N.Y.3d 313 (2005)(“In the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do.”). Second, I found the following statement interesting: “To the extent that defendant sought to establish at trial that the management company hired by plaintiff was the entity that actually operated the plaintiff’s corporations, the record is devoid of facts establishing any of the indicia of ownership by one other than plaintiff’s licensed professional.“
I am curious what this “indicia” is that is necessary to substantiate a Mallela defense. It also looks like a Mallela defense is not as easy to substantiate at trial as many on the defense bar, who throw around the word Mallela, would like us all to believe.
I wonder how much compounded interest is out there in these cases since there was no toll. My guess is probably close to the one million dollar mark.
I also am curious to see what is now going to become of the rest of the Rabiner claims that are pending, e.g., Allstate v. Belt Parkway. While this decision is not res judicata against Allstate in the aforementioned case, it probably should have some bearing on how aggressive Allstate wants to be in prosecuting these pending actions. Good job to Dave Barshay on behalf of his client.
**Edit**
This case can be cited as: Parkway MRI, P.C. v State Wide Ins. Co, 2010 NY Slip Op 52232(U)(App. Term 2d Dept. 2010)
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