JFL Med. Care, P.C. v Wesco Ins. Co., 2022 NY Slip Op 51376(U)(App. Term 2d Dept. 2022)
The defense is subject to preclusion, which always make me question the DJ’s that do not plead or prove timely disclaims per claim. “The defense that an insured made a material misrepresentation when obtaining the insurance policy is subject to preclusion”
The other rule is that the defense over the last 5-8 years in PIP follow the general Ins Law 3105 rule:
“However, a misrepresentation is only material “if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011]). Here, the alleged material misrepresentation was the failure to reveal that the vehicle being insured was a “for hire” livery vehicle, which defendant’s underwriting supervisor stated is an excluded operation, claiming that defendant does not issue livery policies in New York State. However, as plaintiff contends, defendant failed to “present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (id. at 994 [internal quotation marks omitted]). “Conclusory statements by insurance company employees, unsupported by documentary evidence, are insufficient to establish materiality as a matter of law.”
The carrier did not prevail here.
