Key Takeaway
Court rules USAA not liable for no-fault benefits in pedestrian knockdown case where insured and passenger affidavits denied contact, creating coverage gaps.
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.
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
