Election to arbitrate

New York’s no-fault insurance system offers healthcare providers two distinct forums for pursuing unpaid benefits: litigation in Civil Court or arbitration through the no-fault arbitration system. This choice of forum represents a significant strategic decision with lasting consequences. Once made, the election of arbitration binds the provider to that forum for all claims arising from the same accident, even when multiple insurance carriers may be potentially responsible for payment.

The principle of election of remedies prevents parties from pursuing inconsistent positions or “forum shopping” between litigation and arbitration. This doctrine promotes judicial economy, prevents duplicative proceedings, and protects defendants from the burden of defending parallel actions in multiple forums. In the no-fault context, the election doctrine takes on particular importance because coverage disputes frequently involve questions about which of multiple carriers bears primary responsibility for payment.

Legal Framework of Forum Election in No-Fault Cases

The seminal case establishing election of remedies in New York no-fault law is Roggio v. Nationwide Mutual Insurance Co., 66 NY2d 260 (1985). The Court of Appeals held that a healthcare provider’s decision to pursue arbitration constitutes a binding election that precludes subsequent litigation for the same claims, even if the arbitration ultimately proves unsuccessful. This principle serves important policy goals: it prevents providers from testing their claims in arbitration and, if unsuccessful, starting over in court with a second bite at the apple.

The election doctrine extends beyond simply choosing between arbitration and litigation for claims against a single carrier. Courts have consistently held that the election binds providers across all potentially responsible carriers when the claims arise from treating the same patient for injuries from the same accident. This expansive application prevents providers from arbitrating against one carrier while simultaneously litigating against another carrier that might also bear responsibility for the same benefits.

The rationale for this broader application makes practical sense. No-fault disputes often involve threshold questions about which carrier has priority of coverage—questions that should be resolved consistently rather than potentially receiving different answers in different forums. Allowing providers to pursue one carrier in arbitration while suing another in court would create possibilities for inconsistent determinations and would undermine the finality that election doctrines are designed to achieve.

Case Background

In Ellen Sue Ginsberg, D.O., P.C. v. New York City Transit Authority, the healthcare provider faced precisely this situation. After electing to arbitrate claims against GEICO for treatment rendered to an injured patient, the provider subsequently filed suit in District Court against the New York City Transit Authority (NYCTA) for additional claims arising from the same accident and patient.

The NYCTA moved to dismiss, arguing that the provider’s prior election to arbitrate against GEICO bound the provider to arbitration for all claims arising from that accident, even though NYCTA was a different entity that hadn’t been a party to the arbitration proceedings. The District Court denied the motion, reasoning that the provider’s arbitration election applied only to GEICO, not to claims against other potential payers like NYCTA. This determination set up the appellate question.

Jason Tenenbaum’s Analysis

Ellen Sue Ginsberg, D.O., P.C. v New York City Tr. Auth., 2020 NY Slip Op 50431(U)(App. Term 2d Dept. 2020)

Once you make an election to arbitrate with respect to a Assignee/Assignor, you have given up the ability to change or “flit” forums. This election is not carrier specific if more than one carrier is responsible for first party benefits. It makes sense.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant New York City Transit Authority (NYCTA) moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had previously elected to arbitrate its claims arising out of the underlying accident. Insofar as is relevant to this appeal, the District Court denied the motion on the ground that the previously arbitrated claims were against GEICO, not NYCTA.

Contrary to the determination of the District Court, since plaintiff’s claims against NYCTA are for treatment of the same assignor, for injuries arising from the same accident, plaintiff is bound [*2]by its initial election to arbitrate these claims, even though asserted against a different entity (see Roggio v Nationwide Mut. Ins. Co.,66 NY2d 260 ; American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 763 ; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 ; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136, 2018 NY Slip Op 51556 ; Cockett v Nationwide Mut. Ins. Co., 143 Misc 2d 249 )“

Legal Significance and Precedent

The Appellate Term’s decision reinforces a consistent line of precedent applying the election doctrine broadly in no-fault cases. The court’s citation to multiple decisions spanning decades—from Roggio in 1985 through 563 Grand Medical in 2018—demonstrates the settled nature of this principle. Courts have repeatedly rejected providers’ attempts to compartmentalize their election by carrier, recognizing that such an approach would undermine the policies supporting election doctrines.

This decision also clarifies that the election binds based on the accident and patient, not the particular defendant. The focus is on the assignor’s injuries and the accident that caused them, not on the identity of the insurance carrier. This makes sense given that no-fault priority disputes are common, and the same medical treatment might trigger coverage obligations from multiple carriers depending on how priority rules are applied.

The case law reflects judicial concern about provider tactics that might game the system. If providers could arbitrate against one carrier while litigating against another for the same accident, they could potentially use discovery or determinations from one forum to their advantage in the other, create inconsistent factual records, or simply impose duplicative defense burdens on carriers whose potential liability arises from the same underlying facts.

Practical Implications for Healthcare Providers and Attorneys

This decision carries significant implications for no-fault practitioners. Healthcare providers must carefully evaluate which forum to elect before filing any claims related to a particular accident. The decision cannot be made piecemeal or varied depending on which carrier appears most vulnerable to a particular forum. Once arbitration is elected for any carrier for a given accident, all claims arising from that accident must proceed in arbitration.

Providers should conduct thorough coverage investigations before electing a forum. If multiple carriers might potentially bear responsibility for payment—whether due to priority disputes, overlapping coverage periods, or disputes about which vehicle’s coverage applies—the provider must elect a single forum for all such claims. The election decision should consider factors like the amounts at stake, the nature of anticipated coverage defenses, costs of each forum, and the likelihood of recovering attorney’s fees.

For insurance defense attorneys, this decision provides a powerful procedural tool. When providers file suit in District or Civil Court after previously arbitrating claims from the same accident (even against different carriers), defense counsel should immediately move to dismiss based on the election doctrine. The case law strongly supports such motions, and the Ginsberg decision confirms that the election binds regardless of which carrier was the arbitration respondent.

Related Articles

• Medical provider cannot demand that fraud and RICO matter be heard in arbitration
• Priority of payment disputes must be adjudicated through Ins. Law 5105 intercompany arbitration
• Understanding collateral estoppel in no-fault arbitrations
• Personal jurisdiction requirements in New York insurance cases