Key Takeaway
Fourth Department clarifies EUO nonappearance defense as policy exclusion rather than coverage matter in Nationwide v Jamaica Wellness Medical declaratory judgment case.
Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 (4th Dept. 2018)
(1) “We conclude that a defense premised upon nonappearance at an EUO is “more like a normal’ exception from coverage (e.g., a policy exclusion)” than one involving “a lack of coverage in the first instance (i.e., a defense implicat a coverage matter’)” (Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 ), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage”
(2) “We further agree with defendant that, contrary to the court’s determination and Nationwide’s contention, our holding in Interboro Ins. Co. v Tahir (129 AD3d 1687 ) is not controlling. The no-coverage exception to the preclusion remedy was not at issue and the insurer disclaimed coverage in that case; thus, it is factually distinguishable and legally unpersuasive inasmuch as the broad language regarding vitiation of the contract for failure to comply with a condition precedent was not central to the holding and did not account for the conceptual differences between types of conditions precedent (see id. at 1688).”
What saddens ms it that Tahir was my case. It is also remarkable that the Court did not examine NYP v. C-Wide. I also am upset that nobody sought to really delve into the policy language itself, and to contrast it with the notion of a condition precedent in other contexts.
The issue is one step closer to Court of Appeals scrutiny.
https://ad4.nycourts.gov/go/live/channel.asp?id={F23F2521-D06B-4824-8ADD-F51A30AD02B8}
Oral Argument Start time: 27:20
