Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 2015 NY Slip Op 03340 (2d Dept. 2015)
Assuming this is the standard affidavit, problems have arisen
“The defendant contends that the plaintiffs failed to establish, prima facie, that the denials of claims were timely and properly mailed to it. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335, 336). ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547, quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680). However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 832-830).
Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre, the Medical Claims Representative assigned to this matter, asserted that for denials mailed after August 17, 2010, as is relevant herein, all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre’s affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677;Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 228; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co.,284 AD2d 374). Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.,35 AD3d 720, 721).”
I think the automated mailing system got Progressive in trouble. I can attest, I always receive my premium notifications from Progressive, insurance cards and other documentation. I can attest to the functionality of Progressive’s mailing system. But my attestations will not save the day for an efficient mailing system that probably needed some more discussion in the body of the affidavit. The efficiency of machines is trumped by the perceived realities of the legal system.
But as we can see, there is a need to “timely and proper[ly] den[y]… coverage”. Why aren’t these actions not brought either in Manhattan, Bronx or Albany (where progressive has offices)? The First Department would limit your proofs to the EUO letters; the Third Department is an open book but may very well follow the First.
The notion of bringing contested DJ action in Nassau seems too risky to make the convenience of Mineola to our respective law offices worthwhile.
