Key Takeaway
Supreme Court's ruling in State Farm v Thompson highlights strategic missteps in no-fault insurance declaratory judgment cases involving examination under oath procedures.
In no-fault insurance declaratory judgment cases, strategic decisions about what evidence to present can make or break your case. The examination under oath (EUO) process is a critical tool for insurers seeking to deny coverage, but tactical errors in handling EUO testimony can backfire spectacularly.
This case from Kings County Supreme Court demonstrates how even when an insurer has what appears to be favorable EUO testimony from its own insured, poor strategic choices can undermine the entire motion. The situation involves a non-contact accident claim where the insured driver denied hitting the injured person, but the court’s handling of the EUO evidence reveals both judicial and tactical problems.
Understanding the nuances of New York No-Fault Insurance Law requires careful attention to procedural requirements and evidentiary strategy, particularly when dealing with conflicting witness accounts in declaratory judgment proceedings.
Jason Tenenbaum’s Analysis:
State Farm Mut. Auto. Ins. Co. v Thompson, 2016 NY Slip Op 51222(U)(Sup. Ct. Kings Co. 2016)
This was a non-contact DJ Case. Plaintiff relied on the EUO of its insured who said he never hit the EIP. The EUO was properly sworn to. The court held that the EUO was inadmissible. I will just say look at where the opinion came from.
My bewilderment centers around what happened at the EUO of the insured. At this EUO, the interlocutor discussed the EUO that took place of the EIP. And what was missing from the motion? The EUO of the EIP.
Now, I get it: the EIP says the insured driver hit her. The driver says otherwise. Why put in evidence that will defeat a prima facie showing? I get that. My problem is that when you confront your insured about what happened at the EUO of the EIP, you invite a Court to ask for what? The EUO of the EIP. And of course, that EUO will defeat a 3212(b) application and a 3215(f) application.
Just an observation.
Key Takeaway
When conducting an EUO of your insured, avoid discussing the injured person’s conflicting EUO testimony if you’re not prepared to submit that evidence. This tactical error invites the court to demand the missing EUO, which will likely contain testimony that defeats your summary judgment motion and undermines your declaratory judgment case.
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