The pedestrian knockdown case

No-fault insurance coverage in New York depends fundamentally on whether an injury arises out of the use or operation of a motor vehicle, as defined by Insurance Law Section 5102(a). This threshold coverage requirement means that when factual disputes arise regarding whether contact occurred between a vehicle and an injured person, the existence of coverage itself becomes contested. Pedestrian knockdown cases present particular challenges in establishing coverage because they often involve conflicting accounts of whether physical contact occurred, and absent contact, the injury may not qualify as arising from use or operation of a motor vehicle under New York’s no-fault statute.

The burden of proof in no-fault litigation follows standard summary judgment principles, with the moving party required to establish its prima facie case through admissible evidence before the burden shifts to the non-moving party to raise triable issues of fact. When an insurer disclaims coverage based on the absence of contact between vehicle and pedestrian, the insurer must affirmatively establish through competent evidence that no contact occurred. Affidavits from the insured driver and vehicle occupants denying contact can satisfy this burden, shifting to the claimant the obligation to produce evidence establishing that contact did occur.

The intersection of no-fault coverage disputes and third-party tort litigation creates strategic complications for all parties. When an insurer successfully establishes lack of coverage in a first-party no-fault action, that determination does not necessarily bind the parties in subsequent third-party litigation due to the different parties and different issues involved. However, the practical reality of obtaining contradictory rulings on the fundamental question of whether an accident occurred creates significant litigation risks for medical providers and their patients.

Case Background

In Compas Medical, P.C. v United Services Automobile Association, the plaintiff medical provider sought payment for no-fault benefits for treatment provided to a patient who claimed to have been struck by a motor vehicle as a pedestrian. The defendant insurer disclaimed coverage, contending that the alleged injury did not arise from an insured incident because no contact occurred between the insured vehicle and the alleged pedestrian victim.

In support of its cross-motion for summary judgment, the defendant insurer submitted an affidavit from the insured driver who stated that her vehicle did not come into contact with any pedestrian on the date in question. Additionally, the insurer submitted an affidavit from a passenger who was in the vehicle at the time of the alleged incident, and who similarly stated that the vehicle did not contact any pedestrian. These sworn statements from percipient witnesses with firsthand knowledge of the incident provided the foundation for the insurer’s position that no insured event occurred.

The plaintiff medical provider opposed the insurer’s motion solely through an affirmation of counsel. Critically, this affirmation did not include any assertion that counsel possessed personal knowledge of the relevant facts. The plaintiff did not submit an affidavit from the assignor-patient asserting that contact occurred, did not submit statements from any witnesses supporting the occurrence of contact, and did not present any other evidence controverting the affidavits submitted by the insurer. The court was required to determine whether the insurer’s evidence established lack of coverage as a matter of law and whether the plaintiff’s opposition raised any triable issues of fact.

Jason Tenenbaum’s Analysis

Compas Med., P.C. v United Servs. Auto. Assn., 2016 NY Slip Op 50559(U)

“The insured’s passenger also submitted an affidavit, in which she stated that the subject vehicle did not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that “the alleged injur do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 ; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126, 2009 NY Slip Op 52601 ; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139, 2009 NY Slip Op 52379 ). Plaintiff opposed defendant’s cross motion only with an affirmation by its counsel, who did not assert that he possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion (see Zuckerman v City of New York, 49 NY2d 557 ).”

These are dangerous cases. USAA picked up the no-fault and the third-party coverage end of this case. Through prevailing on the first-party claim, the Assignor is not estopped from arguing the existence of coverage on her third party claim. Allstate v. Lobell. USAA should be able to non-suit the Assignor on the third-party action.

If I were the PI attorney, I would now bring a malpractice action against counsel for Compas since it does not appear anybody attempted to obtain Assignor’s affidavit. This is not a situation you want to be in as a medical provider.

Legal Significance

The Appellate Term’s decision in Compas Medical establishes important principles regarding the proof required to disclaim no-fault coverage based on absence of an insured incident. The court’s holding confirms that affidavits from the insured and vehicle occupants with personal knowledge, stating that no contact occurred, establish prima facie that the alleged injury did not arise from use or operation of the vehicle. This evidentiary standard places significant weight on sworn testimony from individuals present at the scene, treating their firsthand accounts as sufficient to shift the burden to the plaintiff.

The decision underscores the inadequacy of attorney affirmations lacking personal knowledge as opposition to summary judgment motions. Under Zuckerman v City of New York and its progeny, affidavits or affirmations in opposition to summary judgment must be based on personal knowledge and must contain facts, not mere conclusions or unsubstantiated allegations. An attorney’s affirmation, unless the attorney has personal knowledge of the underlying facts, cannot create a triable issue of fact. The plaintiff’s failure to submit an affidavit from the assignor-patient describing the incident proved fatal to the opposition.

As Jason Tenenbaum notes, the decision’s practical implications extend beyond the first-party no-fault litigation. The insurer’s success in the first-party action does not collaterally estop the patient from asserting that contact occurred in a third-party tort action against the insured driver. However, the practical challenge of obtaining a different factual finding in a subsequent proceeding creates substantial litigation risk. The insurer, having established the absence of contact in the no-fault action, will be well-positioned to move for summary judgment in the third-party action based on the same evidence.

Practical Implications

Medical providers and their counsel must exercise great care when defending coverage disputes involving fundamental questions about whether an accident occurred. When an insurer moves for summary judgment based on affidavits denying contact, opposition counsel must immediately obtain a detailed affidavit from the assignor-patient describing exactly what happened. This affidavit should address the specific factual assertions in the insurer’s affidavits and should provide a clear account of how and when contact occurred between vehicle and pedestrian.

The failure of plaintiff’s counsel in Compas Medical to obtain the assignor’s affidavit represents a serious error that resulted in dismissal of the action despite potentially meritorious claims. Medical providers should ensure that their counsel maintains communication with assignor-patients and can obtain necessary evidence when coverage disputes arise. The provider’s relationship with the patient, while based on assignment of benefits, requires ongoing ability to secure the patient’s cooperation in litigation.

From the insurer’s perspective, the decision demonstrates the efficacy of affidavits from insureds and vehicle occupants in establishing lack of coverage in questionable accident cases. When an insurer’s investigation raises doubts about whether an incident occurred as alleged, obtaining detailed sworn statements from all vehicle occupants creates powerful evidence for summary judgment motions. These affidavits should specifically address the issue of contact and should describe what the affiant observed.

The decision also highlights the broader strategic implications of first-party coverage litigation. As Jason Tenenbaum notes, the interplay between first-party no-fault actions and third-party tort claims requires careful consideration of how determinations in one action may affect the other. While collateral estoppel may not technically apply due to different parties and claims, the practical reality of contradicting evidence and findings creates settlement pressures and litigation disadvantages.

Related Articles

• When the appellate division grants summary judgment because the loss was not an insured event
• How absence of business record entries can prove no motor vehicle accident occurred
• When proof is insufficient to establish an accident was intentional
• Understanding collateral estoppel in coverage disputes with co-defendants
• New York No-Fault Insurance Law