Unitrin has been back-doored into the Second Department

Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 2016 NY Slip Op 04156 (1st Dept. 2016)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 10, 2015, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.

The Master Arbitrator’s award was arbitrary because it irrationally ignored the law, which petitioner insurer had presented to the Master Arbitrator, that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). The alleged error in petitioner’s denial of claim form is of “no moment” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and was not a sufficient or rational basis for the award (see Auto One Ins. Co. v Hillside Chiropractic, P.C., 126 AD3d 423, 424 [1st Dept 2015], citing Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]).

This was one of my appeals.  The case began as three no-fault arbitrations on Franklin Avenue.  The carrier prevailed.  The lower arbitrator noted that there were errors in the denial (the dates of the no-shows) were wrong, but held in favor or the carrier.  The provider appealed and the master arbitrator REVERSED all three arbitration awards based upon the errors in the denials.

We filed a Petition (consolidated all three awards) in  Bronx Supreme Court and sought to vacate the award of the master arbitrator.  Supreme Court in a published decision denied the Petition, applied the extremely deferential Second Department “no-fault does not belong in the courts” standard.  I appealed, the Petition was granted and the claims were denied.

You want to know the lesson of this case is?  Know where you are filing these Petitions and have confidence in your position.  Admittedly, the Second Department would have probably affirmed saying that mistakes of law are not sufficient to vacate an arbitration award.  Moreover, the First Department believes that Unitrin is the correct statement of law.

Also, after Hillside came out, I realized that the First Department would follow the law without the Second Department’s anti-no-fault impediments.  And this decision and Hillside prove my theory right.  While I might be guilty of forum shopping, I am also guilty of trying to maximize my successes on an eventual appeal that I knew I would have to file.