Ins Law 5105 – loss transfer regarding a livery vehilce and a standard passenger vehicle

Matter of Matter of Philadelphia Ins. Co. (Utica Natl. Ins. Group), 2012 NY Slip Op 05470 (4th Dept. 2012)

This is a coverage case with a vigorous, and I think an accurate dissent.  There is never a shortage of dissenting opinions out of this Rochester based Court, and I am starting to believe the dissents out of this Court make more sense than the majority opinions.  You will see that if you regularly read this blog.  Regarding the case, I will break it down.

(1) Two car collision – it appears the possible livery vehicle is at fault.  Philadelphia insures this vehicle;

(2) Utica is insurer for vehicle that the Injured victim was present inside, and Utica paid Assignor and/or assignee medical providers no-fault benefits;

(3) Utica files for 5105 intercompany arbitration;

(4) Philadelphia did not move for a permanent stay of arbitration;

(5) Philadelphia raised defense during arbitration: (a) Lack of Jurisdiction; (b) Claim not subject to Arbitration;

(6) Arb Forums rules in favor of Utica finding Philadelphia’s vehicle was a livery vehicle;

(7) Philadelphia files an Article 75 to vacate the award on the basis that Arb Forums was wrong on the law; and Utica cross-moves to confirm the award;

(8) Supreme Court grants the petition and vacates the award, awarding judgment in favor of Philadelphia;

(9) Utica Appeals and the Fourth Department reverses and dismisses the Petition;

(10) Fourth Department holds that Philadelphia should have moved to stay arbitration and waived its right to dispute the result of the arbitration because it raised jurisdictional defenses at Arb Forums;

(11) On the merits, the Fourth Department holds that Arb Forums’ finding that the vehicle was used as a livery vehicle has record support;

(12) Dissent dispels the jurisdictional argument; looks at this case from a less deferential viewpoint; and finds that Philadelphia’s vehicle was not being used as a livery vehicle, and would have affirmed Supreme Court’s granting of the petition.

If you read the opinion and are familiar with the wild west of arb forums, it seems that the dissents argument is more persuasive.  Using what looked to be the inartful claims representative’s use of a legal term in a less than formal setting to preclude Article 75 relief seems to be over the top.  On the merits, the dissent hit the nail on the head.

This one should go to the Court of Appeals and looks interesting.