No coverage due to lack of proof regarding Claimant's status as resident relative

Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 2012 NY Slip Op 50417(U)(App. Term 2d Dept. 2012)

Defendant proved that the Assignor did not “regularly reside” with the insured thus there was no coverage from Nationwide.  The opinion is less than clear if there were any other sources of no-fault coverage in this case.  However, since there is also a 45-day issue, I have to guess that there were issues determining where coverage existed, if it all.

“The proof submitted by both defendant and plaintiff established that plaintiff’s assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not “regularly reside[]” with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on this ground. In any [*2]event, even if defendant’s denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).”

(45-day rule issues also discussed)

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