Coverage Pointers - Volume VII, No. 10

11/17/05          Granger v. Keeter

Appellate Division, Third Department

Subjective Complaints and Non-Specific Chiropractor Report Fails to Stop Dismissal on Serious Injury Threshold Motion

Here, the chiropractor's conclusions that plaintiff had a 10% to 15% permanent consequential limitation of her cervical spine and a 20% permanent consequential limitation of her lower back were based upon tests that relied primarily on her subjective complaints of pain and did not establish a significant or consequential injury.  His un-detailed opinions that plaintiff was “restricted by some loss of spinal motion as well as pain" and had "some difficulty" performing certain household chores also did not create an issue of fact as to whether plaintiff suffered a permanent consequential limitation as a result of the subject accident. As to the 90/180 day category, plaintiff's only argument was that defendant failed to make the requisite prima facie showing, but as defendant’s expert did express an opinion concerning this category of serious injury, it also was properly dismissed.

 

 

11/17/05          Sullivan v. Barry Scott Agency Inc.

Appellate Division, Third Department

Lifting TV Out of Van Did Not Arise Out of the “Use or Operation” of a Motor Vehicle for Purposes of No-Fault Coverage

Plaintiff allegedly sustained injuries to his neck while single-handedly lifting a box containing a 100-pound television from the bed of his employer's delivery van. Plaintiff's claim for no-fault benefits were denied by his automobile insurer on the ground that plaintiff's injuries did not arise out of the use or operation of a motor vehicle (see Insurance Law § 5102 [b]).  Plaintiff's description of how his injuries occurred finds that they were caused by lifting a heavy object, and not by the van itself. As plaintiff's injuries would have occurred even if he had been standing on the ground and lifting the box, his presence in the van at the time was wholly incidental and so not a covered event under the policy.  Plaintiff's argument that his insurer is nonetheless liable for no-fault benefits because it failed to timely disclaim coverage on this ground is equally unavailing. Here, the policy's no-fault coverage was expressly limited to injuries caused by an accident arising out of the use or operation of a motor vehicle. Since plaintiff's injuries were not shown to be the result of an insured accident, the insurer had no obligation to disclaim coverage Editors Note:  While loading and unloading is generally considered “use and operation” under a liability policy, the most recent cases in the universe of No-Fault insurance require the vehicle to actually play a part in the injury before No-Fault benefits become available.

 

11/17/05          Toussaint v. Claudio

Appellate Division, First Department

Although Six Year Old Defense Examinations Are Insufficient to Dismiss Under the 90/180 Category of Serious Injury, the Gap in Treatment Gets Dismissal of Significant Limitation Category

The defense medical reports were based on examinations of plaintiff conducted six years after the automobile accident, addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident, and were insufficient to obtain dismissal for the 90/180 day category (incapacitated from performing substantially all of his customary and daily activities for 90 of the 180 days following the accident).  But, Defendant did show a more than six-year gap in plaintiff's treatment, thus meeting the burden to demonstrate that plaintiff had not sustained serious injury involving a significant limitation in his use of a body function or system and so dismissal of plaintiff's claim of serious injury under the significant limitation category was correct.

 

11/17/05          Smith v. Brito

Appellate Division, First Department

Absent Causal Connection Between Herniation and Accident (with Objective Proof of Impairment), Plaintiff Fails to Meet Consequent Burden On Serious Injury Motion

Reports of a resolved cervical and lumbar strain and full cervical and lumbar ranges of motion was sufficient to meet defendant’s initial burden that plaintiff had not sustained serious injury. Plaintiff did not meet her consequent burden with medical submissions that failed to establish a causal connection between the cervical and lumbar disc bulges and lumbar disc herniation indicated on her MRIs and the subject automobile accident.  In addition, plaintiff's medical submissions failed to satisfy the requirement that there be some objective basis for a finding of such impairment. Finally, plaintiff's claim of serious injury was fatally undermined by virtue of her failure to explain notable gaps in her treatment for the alleged injuries

       

11/16/05          SZ Medical P.C. v. State Farm Mutual Automobile Insurance Company

Appellate Division, First Department

Absent Policy Endorsement Permitting EUOs, New Regs Requiring Submission to EUO Did Not Apply

While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the "Conditions" section that an injured person "shall ... as may reasonably be required submit to examinations under oath ...,"  State Farm did not establish that the policy contained the no-fault endorsement authorizing EUOs. Although plaintiffs' claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, these new regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued.  Consequently, absent a showing that the policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

 

11/14/05          Baudillo v. Pam Car & Truck Rental, Inc.
Appellate Division, Second Department
Where’s Defense Motion for Summary Judgment in Serious Injury Case Fails to Compare Degree of Disability to Normal, Plaintiff Need Not Present Contrary Medical Proof
In yet another “serious injury” threshold case, the defense physician failed to compare the plaintiff’s degree of disability to “normal” and thus the defense did not shift the burden of proof back to the plaintiff to respond.

Same issue, same result, same court:

11/14/05          Sayers v. Hot

11/14/05          In the Matter of State Farm Mutual Automobile Insurance Company v. Fernandez
Appellate Division, Second Department
Court Confuses Permission
In this case, the Court confuses the Vehicle & Traffic Law with the insurance policy.  Here, insured owner left keys in car in violation of Vehicle & Traffic Law.  Someone apparently stole the car and carrier denied coverage based on lack of permissive use.  Court looked at Vehicle and Traffic Law cases and § 388(1) and found that insured leaving keys in car at the time of the theft may raises a triable issue of fact whether disclaimer of coverage was proper.  Editor’s Note: court should NOT be looking to Section 388(a) of the Vehicle & Traffic Law to determine whether insurer’s disclaimer was appropriate, but, instead, to policy language.  Permission under the V&T law is different than permissive use under an insurance policy.

11/14/05          In the Matter of Progressive Northern Insurance Company v. White
Appellate Division, Second Department
Policy Cancellation Rules are Meant to be Followed
Where insurer fails to establish that it has complied DMV filing requirements, cancellation of policy is ineffective with respect to innocent third parties.

11/14/05          In the Matter of Government Employees Insurance Company v. Spence

Appellate Division, Second Department
Carrier Can Deny UM Claim Based on Fraud, Even if Denial is Late – Fraudulent Claim Does Not Fall Within Grant of Policy Coverage
Where carrier takes position that UM claim was fraudulent, it should be permitted to deny coverage based on that claim, even if its denial of coverage was late. Timely notice of an intent to disclaim pursuant to Insurance Law § 3420(d) is unnecessary when a claim does not fall within the coverage terms of an insurance policy.  Stated differently, insurers are not precluded by an untimely disclaimer from asserting a lack of coverage where the injuries did not arise from a covered accident.  Here, the hearing officer improperly failed to consider evidence of a fraudulent claim because he improperly cut off the proceeding when he determined denial of claim was too late.

 

11/14/05          Long Island Sports Dome v. Chubb Custom Insurance Company
Appellate Division, Second Department
Insufficient Proof of Mailing of Proof of Loss Forms to Insured Preclude Carrier’s Motion for Summary Judgment in First Party Case
Where carrier fails to prove, with affidavit of someone with personal knowledge, that Proof of Loss form was sent to insured, it cannot establish, as a matter of law, that insured failed to comply with requirements to submit forms and submit to examinations.  The mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing, is insufficient to give rise to the presumption of receipt that attaches to notices duly addressed and mailed

11/10/05          Evans v. Prudential Fianancial Inc. et al

Appellate Division, Fourth Department

Without Judgment in Hand, Plaintiff in Underlying Action Cannot Seek Recovery From Defendant’s Insurer

Supreme Court properly granted the motion of Prudential for summary judgment dismissing the complaints and cross claims against them.  Evans lacked standing to bring actions against Prudential because they have not obtained a judgment against Prudential's insureds (see Insurance Law § 3420 [b] [1].  Readers will remember that the Court of Appeals, in Lang v. Hanover Insurance Company, detailed in Volume VI, No. 6 of Coverage Pointers, settled an outstanding dispute between the various Departments of the Appellate Division.  The Lang Court held that an injured party cannot seek declaratory judgment against a liability carrier until after judgment is obtained, in the underlying lawsuit, against the insured. 

Same issue as above, same ruling, different court:
11/14/05          Geissler v Liberty Mut. Ins. Co.
Appellate Division, Second Department

 

11/10/05          Liberty Mutual Insurance Company v. Old Republic Insurance Company

Appellate Division, Fourth Department

Court Gives Retroactive Application to Contractual Requirements to Provide Additional Insured Status
The policy provided that, in order for Old Republic to be obligated to provide additional insured coverage to another entity, Ferguson must have agreed in a written contract to provide insurance for that entity and the contract must be in place before the accident.  Here, the contract was amended after the accident to require additional insured status.  However, the court determined that there was unequivocal evidence that the parties intended it to be in place before the accident and the Court had little difficulty in finding that the requirement to provide insurance should be retroactively recognized.

 

11/10/05          Gibson v. Encompass Insurance Company

Appellate Division, Fourth Department

Material and Necessary Documents Within Carrier’s Claim File are Discoverable

Plaintiffs commenced an action to recover supplementary underinsured motorist (SUM) coverage. Lower Court properly denied that part of defendant's motion seeking to strike plaintiffs' notice to produce defendant's file regarding plaintiffs' SUM claim. “The sought-after disclosure was 'material and necessary' for the prosecution of plaintiff[s'] action"  The disclosure request was not "palpably improper"  and defendant's contentions that the file contains material exempt from disclosure are raised for the first time on appeal and are thus not preserved for our review.  In any event, defendant failed to meet its burden of establishing that the file contains material that is privileged or otherwise exempt from discovery.

 

11/10/05          B&W Heat Treating Co. v. Hartford Fire Insurance Company

Appellate Division, Fourth Department

Plain Meaning of Policy Language Supported Disclaimer of Coverage for “Flood”

Lower Court properly dismissed plaintiff’s complaint. Hartford issued a policy of insurance to insured that provided coverage for damage to property "solely caused by water that backs up from a sewer or drain." The policy endorsements contained a specific exclusion for damage "caused by any flood," and the term "flood" was defined in the policy as "the overflow of surface water, streams or other bodies of water, or their spray, all whether driven by wind or not." "Where[, as here,] the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the court" Affording the unambiguous terms in the policy their plain meaning, the court concludes that Hartford established as a matter of law that the policy did not cover the loss.  The assertion of plaintiff that the source of the water that caused the flooding was a drain backup does not raise the requisite issue of fact to defeat the cross motion. Although "other factors, such as a clogged drain ..., may have contributed to the loss [, that] is of no consequence under the language of the policy.”

 

11/10/05          Elm Insurance Company v. GEICO Direct

Appellate Division, First Department

Primary Carriers Beware -- Bad Faith Claim Against Primary Insurer Viable With Inference that it Misrepresented the Status of Litigation to the Excess Carrier

We have noted in previous issues of Coverage Pointers that the winds of Bad Faith are starting to blow into New York State.  Here’s another example.

 

Elm Insurance, excess liability insurer, paid $700,000 to settle the underlying action. The defense of the action was handled by lawyers retained by GEICO, the primary liability insurer. GEICO paid its policy limit of $100,000. Elm Insurance commenced suit against GEICO’s assigned counsel and GEICO alleging that GEICO and the law firm misinformed the excess carrier regarding the status of the case and the extent of the injuries involved, failed to inform defendant that its insured was precluded from testifying, failed to conduct an investigation, and specifically advised plaintiff that liability would not exceed the policy limits of the primary layer of coverage.  The breach of contract claim against GEICO was not sustainable since the plaintiff did not specify any contractual provision that was breached, and because the law firm was an independent contractor for whose acts and omissions GEICO was not answerable.  But, the Lower Court’s dismissal of plaintiff's bad faith claim was properly denied in light of allegations permitting the inference that GEICO, by deliberately or recklessly misrepresenting the status of the litigation, effectively deprived plaintiff subrogee of a meaningful opportunity to protect its client's interests by realistically evaluating and prosecuting the case.

 

There is a very important counseling point here, most of which should NOT be a surprise to primary carriers and defense counsel:  KEEP THE EXCESS CARRIER IN THE LOOP AT ALL TIMES.

 

11/10/05          State Farm Mutual Automobile Insurance Company v. Katehis

Appellate Division, First Department

Two and a Half Years Too Long for Reasonable Notice on UM Claim

Petitioner insurer's application to permanently stay an uninsured motorist arbitration demanded by defendant is affirmed.  Arbitration was properly stayed on the ground that respondent's notice of a potential uninsured motorist claim was not given as soon as practical, as required by the parties' policy. Respondent's inability to discover the police report or otherwise learn the identity of the offending vehicle's owner or driver "should have alerted him to the fact that he had a potential uninsured motorist claim" much sooner than the two and a half years it took him to give petitioner notice.

 

11/10/05          426-428 West 46th St. Owners v. Greater New York Mutual Insurance

Appellate Division, First Department

Almost Ten Month Delay In Notice to Insurer Not Untimely as Matter of Law

Insurer disclaimed coverage on the ground that plaintiffs' notice of claim was untimely.  Evidence was uncontradicted that although they knew on August 27, 2002 that their tenant had been found lying incapacitated inside her apartment and was brought by ambulance to the hospital, the insured lacked knowledge that she had sustained severe injuries from falling down stairs inside her apartment, and that the tenant provided no information which would lead plaintiffs to believe she held them responsible for her condition. In these circumstances, the Lower Court properly concluded that the insurer had not shown that the insured’s delay in not notifying defendant of the incident until June 18, 2003, shortly after the tenant commenced the underlying action, was unreasonable as a matter of law.

 

11/10/05          Allcity Insurance v. Manhattan and Bronx Surface Transit Authority

Appellate Division, First Department

No Coverage Afforded, Certificate of Insurance is Not the Same as a Policy Endorsement

Allcity did not provide coverage to the Transit Authority despite the certificate of insurance indicating it as an insured.  Allcity’s denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted. Thus, there was no possibility it would be subrogated to its own insured.

 

11/7/05            Brown v.  Tairi Hacking Corp

Appellate Division, Second Department

Once Defendant Makes a Prima Facie Case for Dismissal on Serious Injury, Plaintiff Needed More than a Two Year Old Examination and Unexplained Medical Notes of Plaintiff’s Recovery

Defendants submitted the affirmed medical reports of a neurologist and orthopedist who examined the plaintiff and determined that he did not suffer from any disabilities, impairments, or limitations in functioning, as well as the affirmed medical report of a radiologist who indicated that the plaintiff's magnetic resonance imaging reports of the cervical spine revealed only degenerative changes unrelated to the accident. This evidence sufficed to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345). In opposition, the affirmations of the plaintiff's doctors failed to raise a triable issue of fact. One physician based his affirmation upon examinations two years prior to the motion  and the other physician, who examined the plaintiff more recently, failed to account for the notations in the plaintiff's medical records indicating that the plaintiff had recovered from his injuries within a few months of the accident.

 

11/7/05            In the Matter of Allstate Insurance Company v. Guillaume

Appellate Division, Second Department

Disclaimer Based on Non-Cooperation Triggers Availability of UM Benefits 

Allstate appeals from a denial of a CPLR Article 75 petition to permanently stay arbitration of a claim for UM benefits.  Allstate  issued an auto policy to the respondent, Alegret Guillaume, who was involved in a motor vehicle accident with an automobile owned and operated by Michael Lespinasse, insured under a State Farm auto policy.  State Farm disclaimed coverage to their insured based upon his alleged failure to cooperate with the investigation of the claim in accordance with the terms of the policy.  Court found the disclaimer for non-cooperation by the insured was proper as the insured’s actions were willful and obstructive.  As a result, State Farm demonstrated met the requirements set forth in Thrasher v United States Liab. Ins. Co to disclaim coverage on the ground of lack of cooperation and the vehicle was uninsured at the time of the accident, allowing the claim for uninsured motorist benefits pursuant to the Allstate policy.

 

11/7/05            Perez v. Ali

Appellate Division, Second Department

Three to Four Year Old Medical Exams Not Sufficient to Dismiss For Purposes of 90/180 Day Category of Serious Injury Threshold

The medical reports of the defendants' examining physicians finding plaintiff had no orthopedic or neurological disabilities or impairments were based upon examinations of the plaintiff ranging from three to four years after the date the plaintiff allegedly was injured. This proof was insufficient to establish that the injured plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident. 

 

11/7/05            Sayas v. Merrick Transportation

Appellate Division, Second Department

Here, Medical Evidence is Sufficient to Dismiss on Serious Injury For Purposes of 90/180 Day Category In Light of Plaintiff’s Chiropractor’s Report

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the affirmed medical report of a neurologist who found no objective evidence that the plaintiff was suffering from any disability, and concluded that she was capable of performing her daily living activities. The affirmation of the plaintiff's treating chiropractor, which improperly relied upon unsworn medical and magnetic resonance imaging reports, was insufficient to raise a triable issue of fact.  The chiropractor's affirmation also failed to provide competent evidence to support a claim that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days immediately following the accident due to a medically-determined injury or impairment.

 

11/7/05            Shpakovskaya v. Etienne

Appellate Division, Second Department

Herniation with Objective Medical Evidence of Significant Limitations Meets Threshold Under Insurance Law § 5102(d)

The defendants' medical experts examined the plaintiff 2 1/2 years after the subject accident and determined that she suffered no limitations or restrictions in motion, and no impairments or disabilities. This established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of as a result of the subject motor vehicle accident However, the plaintiff submitted an affirmation of a radiologist identifying the presence of herniated discs on magnetic resonance imaging films, as well as an affirmation of her treating physician connecting the herniations with "additional objective medical evidence establishing that the accident resulted in significant physical limitations."  Finally, the gap in treatment was explained in compliance with Pommells v Perez.

 

Audrey’s Angle on No-Fault

 

In this feature to the newsletter, we highlight recent no-fault arbitration awards.   The compilation and publication of these awards is not at the same level as traditional reported case law.  There is no single source to conduct comprehensive research in the area.  This feature seeks out notable current awards and judicial determinations and provides them to our subscribers.

 

We encourage the submission of no-fault awards, including Master Arbitration awards that address interesting issues.  These can be submitted to Audrey Seeley at [email protected].   With all submissions, we ask that you forward a redacted version of the award omitting the parties’ names and that the document be in PDF format.  For copies of these decisions, contact Audrey.

 

11/16/05          In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Andrew M. Horn

Applicant’s Submission of Bill and Proof Of Service Upon Insurer Does Not Demonstrate Medical Necessity In Case Of Existing Denial Regarding Lack of Medical Necessity.

Here is the Angle:

Through our own cases and in discussions within the no-fault community, a common argument  set forth by Applicant’s is that the Applicant establishes a prima facie case of medical necessity upon submission of the bill in dispute, proof of service upon the insurer, and the denial of claim. The Applicants are relying upon a recent decision from downstate for that proposition.(See Mary Immaculate Hospital v. Allstate Insurance Co. )  In response to this proof, the insurer must come forth with an IME or peer review to demonstrate lack of medical necessity.  It is our experience that many Applicants do not submit medical records demonstrating the treatment rendered and letters of medical necessity, or even results from electrodiagnostic testing.  Many Applicants are successful in this argument. 

 

As we see it and have consistently argued in the litigation and arbitration forum, the arbitration decisions, the case law, and the Insurance Department’s General Counsel Opinions, clearly indicate that the Applicant must demonstrate that the medical treatment was medically necessary.  The submission of the aforementioned documentation is insufficient to meet Applicant’s burden when there is a denial of claim based upon lack of medical necessity for the treatment.  Arbitrator Horn’s decision explains the recent downstate decision that many Applicants are relying upon and sets forth when it is proper to rely upon this decision.  Ultimately, in the situation where the insurer has not issued a denial regarding a medical bill and the Applicant places it into dispute, the Applicant establishes a prima facie case of medical necessity by submitting the bill and proof of service upon the insurer.

 

The Analysis:

The Applicant, a provider and assignor of the eligible injured person, sought payment of psychological services rendered to the eligible injured person for numerous sessions as well as testing and a report.  The Respondent issued a denial for all of the treatment except for the last psychotherapy session.  We note that Applicant agreed that the denial issued was timely.  Further, Respondent contended that a denial was issued for the last session because the bill was never submitted and never received. 

 

Arbitrator Horn stated that when there is no issue regarding the insurer’s denial being timely and the denial sufficiently explains the factual basis and medical reasoning for the denial of treatment then lack of medical necessity is demonstrated.  More importantly, the Applicant bears the burden of demonstrating that the medical treatment was necessary:

 

When an insurer timely interposes a denial of claim that sets forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection, the presumption of medical necessity

attached to the applicant’s properly completed claim is rebutted and the applicant bears the burden of refuting the denial. See S&M Supp. Inc. v. Peerless Ins. Co., 2004 WL 2979217, 2004

NY Slip Op 51683 (U) (App Term, 2nd & 11th Jud Dists 2004); Amaze Medical Supply (Bermudez) v. Eagle Insurance Co., 2004 NY Slip Op 51701(U) (App Term, 2nd & 11th Jud Dists

2004).

 

In order for an applicant to prove that an expense was medically necessary, it must demonstrate that “the treatment, procedure, or service (was) ordered by a qualified physician…based on an objectively reasonable belief that it will assist in the patient's diagnosis and treatment and cannot be reasonably dispensed with”. Nir v. Progressive Insurance, NYLJ, April 14, 2005, p.19. col. 1 (Civ Ct Kings County, J. Nadelson). Moreover, “(s)uch treatment,

procedure, or service must be warranted by the circumstances as verified by a preponderance of credible and reliable evidence, and must be reasonable in light of the subjective and objective

evidence of the patient's complaints." Id.

 

Furthermore, Arbitrator Horn notes that with respect to the bill that the Respondent contends was never submitted for payment and never received by the Respondent, the Applicant’s burden of proof is different:

 

Regarding the remaining claim for psychotherapy on July 30, 2003 for which no denial of claim form was issued (and which Respondent’s attorney contends was never received), “in

order to prevail, the claimant must still meet the statutory requisite and make out a prima facie case of entitlement to benefits.” Opinion Letter, No-Fault Burden of Proof, Office of General

Counsel, State of New York Insurance Department (January 11, 2000).  A complete proof of claim is a prerequisite to entitlement to No Fault benefits. Mary Immaculate Hospital v. Allstate Insurance Co., 2004 NY Slip Op 02359 (2nd Dept. 2004); St. Luke's-Roosevelt Hospital v. American Transit Insurance Co., 274 A.D.2d 511 (2nd Dept. 2000); Interboro General Hospital v. Allcity Insurance Co., 149 A.D.2d 569 (2nd Dept. 1989).

 

In Mary Immaculate Hospital v. Allstate Insurance Co., 2004 NY Slip Op 02359 (2^nd Dept. 2004), the Appellate Division held that a claimant “made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits were overdue” (underlining added).

 

Moreover, the Applicant may prove that its claims were submitted to the insurer by one of four ways:

 

            1.         The provider may submit an affidavit of service and/or proof of

mailing;

2.         Proof of a standard office practice or procedure designed to ensure that claims

are properly addressed and mailed might be provided;

3.         The date the claim was received as specified on the NF-10 (denial of claim) form acts as an admission by the insurer and is sufficient proof of mailing and receipt; or

4.                  Verification requests (“delay letters”), acknowledging receipt of bills, adequately

establish that the provider sent, and that the insurance carrier received those claims.

 

Overall, Arbitrator Horn clearly explains the difference in the Applicant’s burden of proof when arbitrating or litigating a denial of medical treatment based upon lack of medical necessity versus arbitrating or litigating a bill that the insurer contends was never submitted for payment and was never received by the insurer.

 

11/16/05          In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Victor Moritz

Applicant Provider for Electrodiagnostic Testing Fails To Establish Medical Necessity.

Here is the Angle:     

The Applicant, provider of electrodiagnostic testing must demonstrate a prima facie case of medical necessity.  The Applicant can accomplish this by demonstrating a letter of medical necessity from the treating physician clearly explaining the reason for the testing and why it’s being utilized on the patient; the test results must be submitted with a clear interpretation of the findings; the test must be medically linked to the injuries sustained in the motor vehicle accident; and the test must be distinguished from other testing conducted previously or contemporaneously.   

 

The Analysis: 

Arbitrator Moritz denied the electrodiagnostic testing portion of this claim as the Applicant provider of the EMG/NVC testing failed to establish medical necessity of the testing.  The Applicant must demonstrate medical necessity for the testing by:

 

1.                                          Submitting a letter of medical necessity from the treating physician clearly explaining the reason for the testing and why it’s being utilized on the patient;

2.                                          Submit the test results for the record with a clear interpretation of the findings;

3.                                          Demonstrate that the test must be medically linked to the injuries sustained in the motor vehicle accident;

4.                                          And distinguish the test from other testing conducted previously or contemporaneously.   

 

Here, the Respondent submitted peer reviews that indicated that EMG/NCV testing was not medically necessary in support of its denial.  Arbitrator Moritz found in Respondent’s favor on that issue as the treating physicians records revealed conflicting objective medical tests prior to the electrodiagnostic testing.  Applicant failed to submit any evidence that explained the discrepancies found.  Further, the electrodiagnostic testing was performed one month post-accident.  Arbitrator Moritz agreed with the peer review physician that conservative treatment should have been further explored.

 

Across Borders

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org  ranked among the top five legal research websites in an article published in Litigation News, a publication of the Litigation Section of the American Bar Association. Dan Kohane serves as the FDCC’s Website Editor Emeritus.

11/9/05            Federal Ins. Co. v. Campbell Soup Co.
Superior Court of New Jersey, Appellate Division

Insurer Has No Duty to Defend or Indemnify Insured Against Fraudulent Conveyance Claim Where Insured Was Parent Corporation and Transacted With Wholly Owned Subsidiary
An insurance policy issued by plaintiff to defendant requires payment of defense costs and indemnification for any claims arising out of the insured’s participation in the sale or purchase of securities. When a third party sued the insured, the insured asserted that the action arose out of such a securities transaction and demanded coverage from the carrier, Federal. Federal filed a declaratory judgment action alleging that the underlying transaction was not covered by its policy and that the complaint unambiguously alleged facts demonstrating that point. Because the underlying claim arose from an exchange of securities between Campbell as parent corporation and its wholly owned subsidiary, the court held that a transfer of securities from a parent to its wholly owned subsidiary did not to amount to a statutory purchase or sale so as to be covered under the Federal policy.

 

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

11/9/05            United States Liab. Ins. Group v. Security Ins. Co. of Hartford
Superior Court of New Jersey, Appellate Division

No Liability for Workers’ Compensation Insurer to Reimburse Professional Liability Insurer for Cost of Defense of Claims of Retaliation
United States Liability Insurance Group (“USLIG”) was ordered to reimburse defendant Security for the cost of defense in an action by a former employee against the employer-insured. USLIG was the insurer under the insured’s professional liability policy and Security provided workers’ compensation and employer’s liability protection. The claims arose out of the employee’s allegations that she was filed in retaliation for reports concerning fraud by her employer. The court found in favor of Security in a declaratory judgment action because the employee had not alleged bodily injury in her complaint or responses to discovery, nor had the plaintiff alleged emotional injuries with physical manifestations. The appellate division affirmed, noting while emotional distress including anxiety and depression may be as painful and debilitating as physical injury, there is no reasonable expectation of coverage under the Security policy.

 

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

11/9/05            Westfield Ins. Co. v. Russo
Ohio Court of Appeals, Ninth Judicial District

Eight Year Delay in Providing Notice of Claim Relieves Insurer of Duty to Defend
Eight years after a motor vehicle accident in which she sustained injuries, defendant Russo filed a claim under a policy providing underinsured motorist coverage. The carrier filed a complaint for declaratory judgment, arguing that it had no obligation to provide UM coverage to Russo because Russo breached her obligation to provide prompt notice of the claim to her insurer and as a result, the carrier was prejudiced. The trial court granted the carrier’s motion for summary judgment on the basis that Russo failed to meet her burden of producing sufficient evidence to rebut the presumption of prejudice resulting from her breach of the prompt-notice provision, pointing out that Russo offered no explanation for her eight year delay in notifying the carrier of her accident and claim. The appellate court affirmed, holding that the carrier was deprived of the opportunity to investigate any of Russo’s prior injuries or medical evaluations, had no opportunity to conduct their own independent medical evaluation and was unable to get a clear, accurate and timely assessment of the full scope of Russo’s injuries.

 

Submitted by: Bruce D. Celebrezze & Vanessa L. O'Brien (Sedgwick, Detert, Moran & Arnold LLP)

 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York.

 

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[email protected]

 

Insurance Coverage Team

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Audrey A. Seeley

 

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Appellate Team

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426-428 West 46th St. Owners, Inc v.Greater New York Mutual Insurance Company

Thomas D. Hughes, New York (Julia M. Moore of counsel), for
appellant.
Windels, Marx, Lane & Mittendorf, LLP, New York (Robert J.
Luddy of counsel), for respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 12, 2004, which denied defendant's motion to dismiss plaintiff's declaratory judgment action challenging defendant-insurer's disclaimer of coverage on the ground that plaintiffs' notice of claim was untimely, unanimously affirmed, with costs.

There was uncontradicted evidence presented by plaintiffs that although they knew on August 27, 2002 that their tenant had been found lying incapacitated inside her apartment and was brought by ambulance to the hospital, they lacked knowledge that she had sustained severe injuries from falling down stairs inside her apartment, and that the tenant provided no information which would lead plaintiffs to believe she held them responsible for her condition. In these circumstances, the IAS court properly concluded that defendant had not shown that plaintiffs' delay in notifying defendant of the incident until June 18, 2003, shortly after the tenant commenced the underlying action, was unreasonable as a matter of law (Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748 [1995]). Furthermore, taking all the circumstances into consideration, plaintiffs' apparent failure to conduct any inquiry into the tenant's condition did not render their excuse unreasonable as a matter of law.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2005

CLERK

Allcity Insurance Company v. Manhattan and Bronx Surface Transit Authority

Camacho Mauro Mulholland, LLP, New York (Kathleen M.
Mulholland of counsel), for appellant.
Law Office of Vincent P. Crisci, New York (Joseph S. Wiener
of counsel), for respondent.

Judgment (denominated an order), Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 6, 2005, which denied plaintiff's motion for summary judgment and granted defendant-respondent's cross motion for summary judgment dismissing the amended complaint and awarding defendant-respondent judgment on its counterclaim, unanimously modified, on the law, to declare in defendant-respondent's favor that it had no duty to defend or indemnify the New York City Transit Authority, and otherwise affirmed, with costs in favor of defendant-respondent payable by plaintiff.

efendant-respondent did not provide coverage to the Transit Authority, the certificate of insurance notwithstanding  (see Insurance Corp. of N.Y. v U.S. Underwriters Ins. Co., 11 AD3d 235 [2004]), and its denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted. Thus, there was no possibility it would be subrogated to its own insured (cf. National Union Fire Ins. Co. v State Ins. Fund, 213 AD2d 164, 166 [1995]; National Cas. Co. v State Ins. Fund, 227 AD2d 115, 117 [1996], lv denied 88 NY2d 813 [1996]). [*2]

We modify solely to declare in defendant-respondent's favor (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2005

CLERK

Elm Insurance Company v. GEICO Direct

O'Melveny & Myers LLP, New York (Paul R. Koepff and
Barbara M. Almeida of counsel), for appellant.
Lavin, O'Neil, Ricci, Cedrone & DiSipio, New York (Francis F.
Quinn of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered August 24, 2004, which, to the extent appealed from, denied so much of defendant-appellant's motion as sought dismissal of the complaint as against it, unanimously modified, on the law, to grant appellant's motion insofar as to dismiss the fourth cause of action, sounding in breach of contract, and otherwise affirmed, without costs.

Plaintiff, in its capacity as excess liability insurer, paid $700,000 to settle the underlying action. The defense of the action was handled by lawyers retained by the primary liability insurer, defendant GEICO, which, in connection with the settlement, paid its policy limit of $100,000. Alleging that defendant and the law firm it retained misinformed plaintiff regarding the status of the case and the extent of the injuries involved, failed to inform defendant that its insured was precluded from testifying, failed to conduct an investigation, and specifically advised plaintiff that liability would not exceed the policy limits of the primary layer of coverage, plaintiff now sues the law firm for malpractice and breach of contract, and defendant-appellant GEICO for bad faith and breach of contract. The breach of contract claim against GEICO is not sustainable since plaintiff does not specify any contractual provision that was breached, and because the law firm was an independent contractor for whose acts and omissions GEICO is not answerable (see Feliberty v Damon, 72 NY2d 112 [1988]).

While this is not a case in which bad faith may be found in the context of a failure to settle, the underlying litigation having in fact been settled, dismissal of plaintiff's bad faith claim was properly denied in light of allegations permitting the inference that GEICO, by deliberately or recklessly misrepresenting the status of the litigation, effectively deprived plaintiff subrogee of [*2]a meaningful opportunity to protect its client's interests by realistically evaluating and prosecuting the case (see Pavia v State Farm Mut. Auto. Ins., 82 NY2d 445 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2005

CLERK

State Farm Mutual Automobile Insurance Company v. Katehis

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered July 28, 2004, which granted petitioner insurer's application to permanently stay an uninsured motorist arbitration demanded by respondent insured, unanimously affirmed, without costs.

Respondent was struck by a vehicle in October 2000. Although the police responded, attempts made by respondent's two original attorneys to locate the police report were unsuccessful, and both advised respondent that they were unable to discover the identity of the offending vehicle's owner or driver. In December 2002, a new attorney discovered a police report, but it was not the original report, which apparently was never filed, and did not list the offending vehicle's owner, license plate number or insurance information. Not until May 2003, after somehow learning the owner's name, did respondent's attorney give petitioner written notice of a potential uninsured motorist claim. Finally, in April 2004, after a January 2004 disclaimer of coverage in an action brought by respondent against the owner, respondent's attorney served a demand for arbitration. Arbitration was properly stayed on the ground that respondent's May 2003 notice of a potential uninsured motorist claim was not given as soon as practical, as required by the parties' policy. Respondent's inability to discover the police report or otherwise learn the identity of the offending vehicle's owner or driver "should have alerted [*2]him to the fact that he had a potential uninsured motorist claim" much sooner than the two and a half years it took him to give petitioner notice thereof (Matter of Nova Cas. Co. v Helmstadt, 204 AD2d 330 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2005

 

Brown v.  Tairi Hacking Corp

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated July 14, 2005, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants submitted the affirmed medical reports of a neurologist and orthopedist who examined the plaintiff and determined that he did not suffer from any disabilities, impairments, or limitations in functioning, as well as the affirmed medical report of a radiologist who indicated that the plaintiff's magnetic resonance imaging reports of the cervical spine revealed only degenerative changes unrelated to the accident. This evidence sufficed to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Luckey v Bauch, 17 AD3d 411; Sims v Megaris, 15 AD3d 468, lv denied 5 NY3d 703; Check v Gacevk, 14 AD3d 586; Paul v Trerotola, 11 AD3d 441; Mastaccioula v Sciarra, 11 AD3d 434). [*2]

The affirmations of the plaintiff's doctors failed to raise a triable issue of fact. One physician based his affirmation upon examinations two years prior to the motion (see Kauderer v Penta, 261 AD2d 365; see also Batista v Olivo, 17 AD3d 494; Constantinou v Surinder, 8 AD3d 323; Mohamed v Dhanasar, 273 AD2d 451), while the other physician, who examined the plaintiff more recently, failed to account for the notations in the plaintiff's medical records indicating that the plaintiff had recovered from his injuries within a few months of the accident (see Doran v Sequino, 17 AD3d 626; Cantanzano v Mei, 11 AD3d 500; Powell v Hurdle, 214 AD2d 720).

Accordingly, the defendants were entitled to summary judgment dismissing the complaint.
ADAMS, J.P., RITTER, GOLDSTEIN, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

In the Matter of Allstate Insurance Company v. Guillaume

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum] of counsel), for appellant.
Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (Barbara
Hall of counsel), for proposed
additional respondent State Farm Insurance
Company.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of Supreme Court, Kings County (Marano, J.H.O.), dated November 26, 2004, which, after a hearing, denied the petition.

ORDERED, that the order is affirmed with costs.

The petitioner, Allstate Insurance Company (hereinafter Allstate), issued an automobile insurance policy to the respondent, Alegret Guillaume, who was involved in a motor vehicle accident on May 10, 2003, with an automobile owned and operated by Michael Lespinasse. State Farm Insurance Company (hereinafter State Farm) issued an automobile insurance policy to Lespinasse which was in effect on the date of the accident. However, State Farm disclaimed coverage to Lespinasse based upon his alleged failure to cooperate with the investigation of the claim in accordance with the terms of the policy. Following a hearing, the Supreme Court determined that State Farm had demonstrated noncompliance by its insured and denied the petition.

"An insurer who seeks to disclaim coverage on the ground of noncooperation must demonstrate that it acted diligently in seeking to bring about the insured's co-operation . . . that the efforts employed by the insurer were reasonably calculated to obtain the insured's co-operation . . [*2]. and that the attitude of the insured, after his [or her] co-operation was sought, was one of willful and avowed obstruction" (Matter of Metlife Auto & Home v Burgos, 4 AD3d 477 [internal quotation marks and citations omitted]; see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168-169; Coleman v New Amsterdam Cas. Co., 247 NY 271, 276; State Farm Fire & Cas. Co. v Imeri, 182 AD2d 683).

State Farm demonstrated that it met the requirements set forth in Thrasher v United States Liab. Ins. Co. (supra) to disclaim coverage on the ground of lack of cooperation of its insured, Lespinasse (see Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605, lv denied 5 NY3d 708). Accordingly, the Lespinasse vehicle was uninsured and, as such, the Supreme Court properly denied the petition to permanently stay arbitration of the claim for uninsured motorist benefits.
ADAMS, J.P., LUCIANO, SKELOS and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

Perez v. Ali

Alpert & Kaufman, LLP (Miller & Goldman, P.C., New York,
N.Y. [Julie L. Miller] of counsel), for appellant.
Morris, Duffy, Alonso & Faley, LLP, New York, N.Y.
(Yolanda L. Ayala of counsel), for
respondent Mohamed Yousuf Ali.
Cheven, Keely & Hatzis, New York, N.Y. (Mayu Miyashita
of counsel), for respondent Leonide
A. Perez.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated July 15, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motions are denied, and the complaint is reinstated.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The medical reports of the defendants' examining physicians, who found that the plaintiff had no orthopedic or neurologic disabilities or impairments were based upon examinations of the plaintiff ranging from three to four [*2]years after the date the plaintiff allegedly was injured. However, this proof was insufficient to establish that the injured plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see Connors v Center City, 291 AD2d 476, 477; Frier v Teague, 288 AD2d 177; DePetres v Kaiser, 244 AD2d 851; see also Nembhard v Delatorre, 16 AD3d 390; Scott v Roudellou, 291 AD2d 550). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law in the first instance, it is unnecessary to reach the question of whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Nembhard v Delatorre, supra; Scott v Roudellou, supra; Coscia v 983 Trading Corp., 283 AD2d 538; see also Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437).
H. MILLER, J.P., CRANE, KRAUSMAN, RIVERA and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Shpakovskaya v. Etienne

Barry Richard Feldman, Brooklyn, N.Y., for appellant.
Norman Volk & Associates, P.C., New York, N.Y. (Michael
I. Josephs of counsel), for
respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated July 7, 2004, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendants' medical experts examined the plaintiff 2 1/2 years after the subject accident and determined that she suffered no limitations or restrictions in motion, and no impairments or disabilities. This established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). However, the plaintiff submitted an affirmation of a radiologist identifying the presence of herniated discs on magnetic resonance imaging films, as well as an affirmation of her treating physician connecting the herniations with "additional objective medical evidence establishing that the accident resulted in significant physical limitations." This evidence was sufficient to raise a triable issue of fact (see Pommells v Perez, 4 NY3d 566, 567; Kearse v New York City Tr. Auth., 16 AD3d 45). Moreover, [*2]the plaintiff adequately explained the three-year gap in time between the cessation of her medical treatments and the re-examination by her treating physician (see Pommells v Perez, supra).

Accordingly, the Supreme Court erred in granting the defendants' motion for summary judgment.
ADAMS, J.P., RITTER, GOLDSTEIN, SKELOS and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Sayas v. Merrick Transportation

 

Weiss & Rosenbloom, P.C., New York, N.Y. (Barry D. Weiss of
counsel), for appellants.
Norman Volk & Associates, P.C., New York, N.Y. (Holly E.
Peck of counsel), for respondents
Merrick Transporation and James
Eldridge.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated June 15, 2004, as granted the motion of the defendants Merrick Transportation and James Eldridge and that branch of the separate motion of the defendant Gustavo A. Vargas which was for summary judgment dismissing the complaint on the ground that the plaintiff Doris Sayas did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs to the respondents Merrick Transportation and James Eldridge.

The defendants made a prima facie showing that the plaintiff Doris Sayas (hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the affirmed medical report of a neurologist who found no objective evidence that the plaintiff was suffering from any disability, and concluded that she was capable of performing her daily living activities (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Farozes v Kamran, AD3d [2d Dept, Oct. 3, 2005]; Paykina v Golden,21 AD3d 1021; Nelson v Amicizia, 21 AD3d 1015). The affirmation of the plaintiff's treating chiropractor, which improperly relied upon [*2]unsworn medical and magnetic resonance imaging reports, was insufficient to raise a triable issue of fact (see Sammut v Davis, 16 AD3d 658; Garces v Yip, 16 AD3d 375; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). The chiropractor's affirmation also failed to provide competent evidence to support a claim that the plaintiff was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days immediately following the accident due to a medically-determined injury or impairment (see Nitti v Clerrico, 98 NY2d 345, 357-358; Paykina v Golden, supra; Farozes v Kamran, supra; Nelson v Amicizia, supra).
H. MILLER, J.P., CRANE, KRAUSMAN, RIVERA and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

 

EVANS v. PRUDENTIAL FINANCIAL, INC et al

Appeals from an order of the Supreme Court, Wyoming County (Rose H. Sconiers, J.), entered November 19, 2004. The order granted the motion of defendants Prudential Financial, Inc., Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them and declared that defendant Prudential Financial, Inc. has no obligation to defend or indemnify any of the remaining defendants.


 
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the declaration and as modified the order is affirmed without costs.

Memorandum: Supreme Court properly granted the motion of defendants Prudential Financial, Inc. (Prudential), Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them. Plaintiffs lack standing to bring actions against Prudential because they have not obtained a judgment against Prudential's insureds (see Insurance Law § 3420 [b] [1]; Lang v Hanover Ins. Co., 3 NY3d 350, 354-355). Because plaintiffs lack standing, the court erred in declaring the rights of the parties (see Lang, 3 NY3d at 355), and we therefore modify the order accordingly.

 

Entered: November 10, 2005
JoAnn M. Wahl
Clerk of the Court

 

Liberty Mutual Insurance Company v. Old Republic Insurance Company

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered January 4, 2005. The judgment, upon reargument, adhered to the prior decision that, inter alia, granted defendants' cross motion for summary judgment in a declaratory judgment action.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting the motion for summary judgment in part, denying the cross motion in part and granting judgment as follows: It is ADJUDGED AND DECLARED that defendant Old Republic Commercial General Insurance Company is obligated to defend, indemnify and provide primary coverage to plaintiff McPhee Electric Ltd., LLC in the underlying action and as modified the judgment is affirmed without costs.

Memorandum: The three remaining plaintiffs in this action, Liberty Mutual Insurance Company (Liberty Mutual), McPhee Electric Ltd., LLC (McPhee) and Klewin Building Company, Inc. (Klewin) (collectively, plaintiffs), appeal from a judgment denying the motion of the five plaintiffs for summary judgment seeking, inter alia, a declaration that defendant Old Republic Commercial General Insurance Company (Old Republic) is obligated to defend and indemnify McPhee and Klewin in the underlying action, Nephew v Klewin Bldg. Co. ([appeal No. 1] ___ AD3d ___ [Sept. 30, 2005]). According to plaintiffs, McPhee and Klewin are additional insureds on the policy issued by Old Republic to defendant Ferguson Electric Construction Co., Inc. (Ferguson), thereby requiring Old Republic to defend and indemnify McPhee and Klewin in the underlying action and to provide primary coverage for them in that [*2]action.

Klewin contracted with McPhee to provide electrical services necessary for the conversion of the Niagara Falls Convention Center into a casino and McPhee, in turn, subcontracted with Ferguson to provide those services. Kelly Nephew, Sr. (Nephew), one of the plaintiffs in the underlying action, was employed by Ferguson and was injured when he fell from a stepladder. He and his wife thereafter commenced the underlying action seeking damages from, inter alia, Klewin and McPhee for those injuries (see Nephew, ___ AD3d ___). For the reasons that follow, we conclude that Old Republic is obligated to defend, indemnify and provide primary coverage to McPhee in the underlying action but is not obligated to defend, indemnify or provide primary coverage to Klewin therein.

In determining this dispute regarding insurance coverage, we must "look to the language of the policy" issued by Old Republic to Ferguson (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221). The policy provides that, in order for Old Republic to be obligated to provide additional insured coverage to another entity, Ferguson must have agreed in a written contract to provide insurance for that entity. As we concluded in our decision in Nephew with respect to the order in appeal No. 2, the letter dated September 25, 2002 (September agreement) constituted the requisite written contract between McPhee and Ferguson (see id. at ___). That letter included an attachment requiring Ferguson to name McPhee and others as entities to be included as additional insureds on its liability policy, but the attachment did not name Klewin as an entity to be included as an additional insured. We therefore conclude that, with respect to McPhee, the September agreement comports with the requirement of Ferguson's policy that Ferguson agree in a written contract to provide insurance coverage. We note that the September agreement further satisfies the requirement of the policy that coverage is provided only for bodily injury that occurs after the parties entered into the contract providing for the coverage. Although the subcontract executed on January 29, 2003, by its terms, superseded the September agreement (see id.; see generally Lnzro Pizza Empire v Brown, 229 AD2d 947, 948), we conclude that Ferguson and McPhee intended that the indemnification provision in the subcontract nevertheless would apply to Nephew's accident. As we wrote in Nephew, we agree with the decision of the First Department in Podhaskie v Seventh Chelsea Assoc. (3 AD3d 361) and conclude that "'case law supports [McPhee's] contention that such a clause in a [sub]contract executed after a plaintiff's accident may nevertheless be applied retroactively where evidence establishes as a matter of law that the agreement pertaining to the contractor's work was made as of [a pre-accident date], and that the parties intended that it apply as of that date'" (Nephew, ___ AD3d at ___ ). We therefore conclude that Supreme Court erred in denying that part of plaintiffs' motion seeking a declaration that Old Republic is obligated to defend, indemnify and provide primary coverage to McPhee in the underlying action, and we modify the judgment accordingly.

We further conclude, however, that the court properly denied that part of plaintiffs' motion with respect to Klewin, and properly granted that part of defendants' cross motion seeking a declaration that Old Republic is not obligated to defend or indemnify Klewin in the underlying action. Pursuant to the terms of its policy, Old Republic is not liable to indemnify any entity for bodily injury that occurred prior to the date of the contract whereby its insured, Ferguson, agreed to indemnify that entity. Although the subcontract between McPhee and Ferguson requires Ferguson to defend and indemnify any agents of the owner, which would include Klewin, that subcontract was executed approximately one month after Nephew's accident (see Nephew, ___ AD3d at ___) and, as previously noted, Klewin, unlike McPhee, was not named in the attachment to the September agreement. Thus, pursuant to the language of the policy (see Consolidated Edison of N.Y., 98 NY2d at 221), Old Republic is not obligated to defend or indemnify Klewin, despite Ferguson's agreement with McPhee to indemnify Klewin. [*3]

We have reviewed the remaining contentions of the parties and conclude that they are without merit.
Entered: November 10, 2005
JoAnn M. Wahl
Clerk of the Court

Gibson v. Encompass Insurance Company

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered April 15, 2005. The order denied defendant's motion seeking to strike plaintiffs' notice to produce and seeking a protective order.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiffs commenced this action to recover supplementary underinsured motorist (SUM) coverage pursuant to an automobile liability insurance policy issued by defendant. Supreme Court properly denied that part of defendant's motion seeking to strike plaintiffs' notice to produce defendant's file regarding plaintiffs' SUM claim. The court did not abuse its broad discretion in determining "that the sought-after disclosure was 'material and necessary' for the prosecution of plaintiff[s'] action" (Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843, quoting CPLR 3101 [a]). The disclosure request was not "palpably improper" (Zambelis v Nicholas, 92 AD2d 936; see Salwen Paper Co., Inc., Profit Sharing Retirement Trust v Merrill Lynch, Pierce, Fenner & Smith, 110 AD2d 895, 896), and defendant's contentions that the file contains material exempt from disclosure are raised for the first time on appeal and are thus not preserved for our review (see Central Buffalo Project Corp. v Rainbow Salads, 140 AD2d 943, 944-945). In any event, defendant failed to meet its burden of establishing that the file contains material that is privileged or otherwise exempt from discovery (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648; McCarthy v Klein, 238 AD2d 552, 553-554).

The court also properly denied that part of defendant's motion seeking a protective order to prevent the deposition of defendant's underinsurance claim representative. We perceive no basis to disturb the determination that defendant's representative possesses "material and necessary" information regarding the action (CPLR 3101 [a]; see Walsh, 289 AD2d at 843). [*2]
Entered: November 10, 2005
JoAnn M. Wahl
Clerk of the Court

B&W Heat Treating Co. v. Hartford Fire Insurance Company

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered July 15, 2004. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the amended complaint.


ANTHONY D. PARONE, NIAGARA FALLS, FOR PLAINTIFF-APPELLANT.
THOMAS H. BURTON, BUFFALO, FOR DEFENDANT-RESPONDENT.


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant's cross motion for summary judgment dismissing the amended complaint. Defendant issued a policy of insurance to plaintiff providing coverage for damage to property "solely caused by water that backs up from a sewer or drain." The endorsements contain a specific exclusion for damage "caused by any flood," and the term "flood" is defined in the policy as "the overflow of surface water, streams or other bodies of water, or their spray, all whether driven by wind or not." "Where[, as here,] the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the court" (Town of Harrison v National Union Fire Ins. Co. of Pittsburgh, PA, 89 NY2d 308, 316). Affording the unambiguous terms in the policy their plain meaning, as we must (see id.), we conclude that defendant established as a matter of law that the policy does not cover the loss herein (see generally Zuckerman v City of New York, 49 NY2d 557, 562). The assertion of plaintiff that the source of the water that caused the flooding was a drain backup does not raise the requisite issue of fact to defeat the cross motion. Although "other factors, such as a clogged drain ..., may have contributed to the loss[, that] is of no consequence under the language of the policy" (Casey v General Acc. Ins. Co., 178 AD2d 1001, 1002).
Entered: November 10, 2005
JoAnn M. Wahl
Clerk of the Court

Geissler v. Liberty Mutual Insurance Company

In an action for a judgment declaring, inter alia, that the defendant Liberty Mutual Insurance Company is obligated to defend and indemnify the defendant Howard Geissler in an underlying personal injury action entitled Geissler v Geissler, pending in the Supreme Court, Orange County, under Index No. 3746/02, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), dated August 5, 2004, as granted the motion of the defendant Liberty Mutual Insurance Company for summary judgment dismissing the complaint insofar as asserted against it and denied their cross motion for summary judgment.

ORDERED that the order is modified, on the law, by adding to the first subparagraph of the decretal paragraph thereof granting the defendant's motion the words "without prejudice to reinstituting or commencing a new action against Liberty Mutual Insurance Company in accordance with Lang v Hanover Ins. Co. (3 NY3d 350), in the event that the plaintiffs obtain a judgment [*2]against Howard Geissler in the underlying personal injury action which remains unsatisfied for 30 days after service thereof on the insurer"; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs were not named insureds under the general liability insurance policy issued by Liberty Mutual Insurance Company (hereinafter Liberty Mutual) to the defendant Boy Scouts of America and their right of action was therefore subject to the provisions of Insurance Law § 3420. As both parties agree, the plaintiffs did not obtain a judgment against the defendant Howard Geissler which remained unsatisfied for 30 days after service thereof on the insurer. In light of the Court of Appeal's decision in Lang v Hanover Ins. Co. (id.), although decided after the order appealed from, the plaintiffs cannot maintain a direct action against Geissler's purported insurer, and their complaint insofar as asserted against Liberty Mutual must be dismissed (see Insurance Law § 3420; Lang v Hanover Ins. Co., supra at 354). Accordingly, we do not reach the merits of the plaintiffs' cause of action against Liberty Mutual. The complaint insofar as asserted against Liberty Mutual should have been dismissed without prejudice to the plaintiffs reinstituting or commencing a new action against that defendant if the requirements of Insurance Law § 3420 are met.

Long Island Sports Dome v. Chubb Custom Insurance Company

In an action to recover the proceeds of an insurance policy, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated October 22, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant, Chubb Custom Insurance Company (hereinafter Chubb), failed to establish its entitlement to judgment as a matter of law based upon the plaintiffs' failure to comply with provisions of the insurance policy requiring the insureds to file sworn proofs of loss, submit to examinations under oath, and produce documents. It is undisputed that Chubb did not send demands for compliance with those policy provisions to two of the plaintiffs who were named insureds. As such, the Supreme Court properly denied Chubb's motion for summary judgment dismissing the complaint insofar as asserted by those plaintiffs (cf. Gola Supermarket v Travelers Indem. Co., 150 AD2d 159).

Chubb does claim to have mailed demands for a sworn proof of loss together with blank forms, an examination under oath and production of certain documents to the first named insured, Long Island Sports Dome, by both certified mail, return receipt requested, and regular mail. The certified mailings were returned, marked "unclaimed." Long Island Sports Dome acknowledges [*2]receiving a copy of the demand for an examination under oath and production of documents, but claims it was forwarded to it by its adjuster, who was copied on the letter. Chubb admits that it was contacted by the plaintiffs' attorney and consented to adjournments of the examination under oath. In the absence of an assertion by Chubb that it ever denied the requests for adjournments of the examination under oath, we find that it has not been established that Long Island Sports Dome wilfully failed to comply with the policy's provision requiring submission to such an examination and production of documents (see Sappah v Cambridge Mut. Fire Ins. Co., 105 AD2d 911).

Concerning the alleged mailing, by regular mail, of the demand for a sworn proof of loss, which Long Island Sports Dome denies receiving, we reject Chubb's argument that it is entitled to the presumption of receipt. "The absence of evidence from anyone claiming to have mailed the notice or pertaining to office practices creates questions of fact that cannot be decided on a summary judgment motion . . . The mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing, is insufficient to give rise to the presumption of receipt that attaches to notices duly addressed and mailed" (Washington v St. Paul Surplus Lines Ins. Co., 200 AD2d 617, 618).

Sayers v. Hot

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated June 3, 2004, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs, the motions are denied, and the complaint is reinstated against the defendants.

The defendants failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants' motion papers never addressed the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The accident happened April 17, 2000, and the plaintiff was out of work until October 2000. The defendants' physicians conducted their independent examinations of the plaintiff some 3 1/2 years [*2]after the incident. Neither expert related their findings to this category of serious injury for the period of time immediately following the accident. Where a defendant does not meet this initial burden, the court "need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact" (Jones v Jacob, 1 AD3d 485, 486; see Taylor v Ellis, 5 AD3d 471, 472). Accordingly, the defendants' separate motions for summary judgment should have been denied.
SCHMIDT, J.P., S. MILLER, MASTRO, SPOLZINO and LUNN, JJ., concur.

 

In the Matter of Government Employees Insurance Company v. Spence

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, State Farm Mutual Automobile Insurance Company appeals from an order of the Supreme Court, Kings County (Archer, J.H.O.), dated March 8, 2004, which, after a hearing, granted the petition and permanently stayed the arbitration.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new hearing on the petition and a new determination thereafter; and it is further,

ORDERED that the arbitration is temporarily stayed pending the new hearing and determination.

At a hearing conducted on March 8, 2004, before a Judicial Hearing Officer (hereinafter the J.H.O.) to whom the matter was referred, the alleged insurer of the offending vehicle, State Farm Mutual Automobile Insurance Company (hereinafter State Farm), began to elicit [*2]testimony from its employee regarding whether the collision giving rise to the underlying claim was intentional or staged and whether it was related to other fraudulent accident claims. Before the direct examination of that witness was concluded, the J.H.O. granted the petition and permanently stayed the arbitration on the ground that State Farm did not timely disclaim coverage under its policy as against its insured, and determined that State Farm was obligated to provide coverage under a policy issued to its insured. This was error.

Timely notice of an intent to disclaim pursuant to Insurance Law § 3420(d) is unnecessary when a claim does not fall within the coverage terms of an insurance policy (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649; Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610; Matter of Liberty Mut. Ins. Co. v McDonald, 6 AD3d 614; Matter of Metro Med. Diagnostics, P.C. v Eagle Ins. Co., 293 AD2d 751). Stated differently, insurers are not precluded by an untimely disclaimer from asserting a lack of coverage where the injuries did not arise from a covered accident (see Matter of Metro Med. Diagnostics, P.C. v Eagle Ins. Co., supra; Town of Oyster Bay v Employers Ins. of Wausau, 269 AD2d 387, 389). As State Farm was endeavoring to adduce evidence of such fraud which may have established that the occurrence or collision in question was not covered under its policy, the Supreme Court incorrectly terminated the hearing and granted the petition on the basis of untimeliness of disclaimer.
COZIER, J.P., RITTER, SPOLZINO and LIFSON, JJ., concur.

 

In the Matter of Progressive Northern Insurance Company v. White

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), dated November 1, 2004, which, after a hearing, denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

On October 6, 2000, Nationwide Mutual Insurance Company (hereinafter Nationwide) cancelled the automobile insurance policy of the proposed additional respondent Percival W. Plummer for nonpayment of the premium. Nationwide never notified the Department of Motor Vehicles (hereinafter the DMV) of the cancellation. On October 10, 2000, Plummer was involved in an automobile accident when the car he was driving collided with an automobile driven by nonparty Caesandra Velazquez. After the accident, Kenneth White, a passenger in Velazquez's car, sought arbitration of his claim for uninsured motorist benefits from Progressive Northern [*2]Insurance Company (hereinafter Progressive), Velazquez's insurer. Progressive commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration on the ground that Nationwide's purported cancellation was defective and therefore, ineffective with respect to Kenneth White's claim.

Vehicle and Traffic Law § 313 governs the procedures which an insurance carrier must follow in order to properly cancel an automobile insurance policy. Cancellation will be ineffective against third parties unless there is strict compliance with the cancellation requirements of Vehicle and Traffic Law § 313 (see Matter of Material Damage Adj. Corp. v King, 1 AD3d 439; Matter of Progressive Northeastern Ins. Co. v Robbins, 279 AD2d 631). Vehicle and Traffic Law § 313(2)(a) requires an insurance carrier to file with the Commissioner of Motor Vehicles a notice of cancellation within 30 days of the cancellation of an automobile insurance policy (see Vehicle and Traffic Law § 313[2][a]). Failure to comply with this provision results in invalid termination of coverage as to third parties (see Matter of Chubb Group of Ins. Cos. v Williams, 14 AD3d 561; Matter of AIU Ins. Co. v Mensah, 307 AD2d 921, 922; Matter of Merchants & Bus. Men's Mut. Ins. Co. v Williams, 295 AD2d 614, 615).

Pursuant to certain regulations issued by the DMV, a period existed from May 19, 2000, through September 12, 2000, when electronic transmission of policy cancellations to the DMV was not required (hereinafter the blackout period) during the DMV's conversion to a new electronic reporting system (see 15 NYCRR 34.4[b], 34.5[c], 34.7[a]; Matter of Chubb Group of Ins. Cos. v Williams, 14 AD3d 561). However, if an insurance company failed to complete the initial load of its New York State automobile policyholders into the new system between June 12, 2000, and September 12, 2000, that insurance company would not be relieved "of any ongoing reporting requirement" (15 NYCRR 34.13[d]). Since Nationwide purportedly cancelled the subject insurance policy on October 6, 2000, and since it did not complete its initial load into the new system until November 27, 2000, such cancellation was not in compliance with the blackout period established in the regulations and Nationwide was still required to report cancellations occurring after September 12, 2000. Therefore, the termination of coverage by Nationwide did not strictly comply with Vehicle and Traffic Law § 313 and was ineffective with respect to the claim made by Kenneth White. Accordingly, the Supreme Court erred in denying the petition to permanently stay arbitration.

In the Matter of State Farm Mutual Automobile Insurance Company v. Fernandez

 

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 16, 2004, which, without a hearing, denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for joinder of the proposed additional respondents Hanover Insurance Company and Sharlisha D. Jackson, and the arbitration is temporarily stayed pending an evidentiary hearing on the issue of whether the offending vehicle was insured at the time of the accident, and a new determination on the petition.

Vehicle and Traffic Law § 388(1) creates a presumption that a driver uses a vehicle with the owner's express or implied permission (see Murdza v Zimmerman, 99 NY2d 375) which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704, 705; Murdza v Zimmerman, supra). Although evidence that a vehicle was stolen at the time of the [*2]accident will rebut the presumption of permissive use, here, the affidavit of the vehicle owner Sharlisha D. Jackson was insufficient to rebut the presumption (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, supra; Minaya v Horner, 279 AD2d 333). In her affidavit, Jackson admitted that she left the car keys in the vehicle at the time of the theft, which raised a triable issue of fact whether the purported disclaimer of coverage by Hanover Insurance Company was proper under the circumstances (see Vehicle and Traffic Law § 1210[a]; Matter of Merchants Ins. Group v Haskins, 11 AD3d 694).

 

SZ Medical P.C. v. State Farm Mutual Automobile Insurance Company

 

Plaintiffs appeal from that portion of an order of Civil Court, New York County (Debra Rose Samuels, J.), entered February 6, 2004, which denied their motion for summary judgment.

 

PER CURIAM:

Order (Debra Rose Samuels, J.) entered February 6, 2004, reversed, with $10 costs, plaintiffs' motion for summary judgment is granted in the amount demanded in the complaint and the matter is remanded to Civil Court for a calculation of statutory interest and an assessment of attorneys' fees due thereon, and for entry of judgment.

In this action to recover first party no-fault benefits for medical services rendered to its assignors, the plaintiff health care providers established a prima facie entitlement to summary judgment by evidentiary proof that they submitted claims between December 27, 2002 and April 8, 2003, setting forth the facts and the amounts thereof, and that payment of no-fault benefits was overdue as defendant neither paid nor denied the claims within 30 days as required by Insurance Law § 5106(a) (see Mary Immaculate Hospital v Allstate Ins. Co., 5 AD3d 742 [2004]).

We find unavailing defendant's argument that plaintiffs are not entitled to judgment because the assignors failed to submit to examinations under oath (EUOs). While the prescribed No-Fault Mandatory Personal Injury Protection Endorsement under 11 NYCRR §65-1.1(d) provides in the "Conditions" section that an injured person "shall ... as may reasonably be required submit to examinations under oath ...," defendant did not establish that the insurance policy in effect contained the no-fault endorsement authorizing EUOs. Although plaintiffs' claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

Nor may defendant base its right to an EUO on the policy provisions providing for "cooperation" because the no-fault protection created by the statute and implementing regulations cannot be qualified by the conditions of the liability portion of the policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022U [App Term, 1st Dept]).

This constitutes the decision and order of the court.
Decision Date: November 16, 2005

 

 

Granger v. Keeter

 

MEMORANDUM AND ORDER

Calendar Date: September 9, 2005
Before: Cardona, P.J., Mercure, Spain, Carpinello and Lahtinen, JJ.


Cade & Saunders, P.C., Albany (John D. Rogers of
counsel), for appellant.
Law Office of Kris T. Jackstadt, Albany (Edward A.
Gibson of counsel), for respondents.

Carpinello, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 8, 2004 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff was allegedly injured in a May 24, 2000 rear-end collision with a vehicle owned by defendant MAPG, Ltd. and operated by defendant L.W. Keeter III. At issue on appeal is an order of Supreme Court granting defendants summary judgment on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). Upon our review of the record, we find that summary judgment was properly granted. Accordingly, we affirm.

Plaintiff alleged serious injury under the statutory categories of permanent consequential limitation of use of a body organ or member (i.e., her neck, left shoulder and lower back) and a medically determined nonpermanent injury which prevented her from performing substantially all of her customary daily activities for at least 90 of the first 180 days immediately following the accident. In support of summary judgment, defendants submitted an affidavit of a physician specializing in neurology and neurosurgery who conducted an examination of plaintiff, as well as reviewed certain pleadings in the matter and plaintiff's medical records. Based upon his examination and review of these materials, he opined within a reasonable degree of medical certainty that she did not sustain any injury of a permanent nature as a result of the accident or a nonpermanent, objectively medically determined injury or impairment of sufficient severity so as [*2]to prevent her from performing substantially all of her customary daily activities for 90 of the first 180 days following that accident.

According to this physician, plaintiff suffered no more than a mild cervical and lumbar strain as a result of the accident. Indeed, immediately following the accident, X rays of her cervical spine were normal, "demonstrat[ing] no evidence of fracture or subluxation." An MRI of the cervical spine performed in July 2000 revealed, among other negative findings, no evidence of subluxation or disc herniation. Although plaintiff was referred to a neurologist in September 2001, significantly, this was done at the request of her attorney. This neurologist's report of October 2001 reveals "no evidence of injury to spine, nerve roots or peripheral nerves. Objective findings in regard to the lower back and muscles of the lower extremities [were] entirely normal today." Moreover, nerve conduction and needle EMG studies ordered by this neurologist were all normal, revealing "no electrodiagnostic evidence of an upper extremity neuropathy or cervical radiculopathy bilaterally."

At her examination before trial, plaintiff testified that she could not recall the precise amount of time she lost from work immediately following the accident but claimed that it was less than one month. A no-fault form completed by plaintiff on January 26, 2001 indicates that she missed only a few days ^[FN1]. She was also unable to recall if and when she missed any other time from work as a result of the accident. Morever, while plaintiff acknowledged at her examination before trial that there have been some restrictions on her daily activities as a result of the accident, she was unable to recall when these restrictions began (see n 1, supra). She did indicate, however, that she was able to bowl in her bowling league during the fall and winter months following the accident.

Next, although plaintiff underwent physical therapy after the accident, her last session was in early October 2000. Although she sought out chiropractic care some nine months after the accident (i.e., on January 26, 2001), she had previously treated with this particular chiropractor between December 8, 1999 and May 3, 2000 for complaints of neck and shoulder pain, as well as headaches. Her resumption of regular chiropractic treatment following the subject accident continued through December 2002. Thereafter, however, she only had four sporadic treatments between mid-January 2003 and early January 2004. Given all of this evidence, we are satisfied that defendants made a prima facie showing of entitlement to summary judgment with respect to both categories of serious injury.

As to the 90/180-day category, plaintiff's only argument is that defendants failed to make the requisite prima facie showing. With the issue so limited, we are unpersuaded since, contrary to plaintiff's contention, defendants' expert did in fact express an opinion concerning this category of serious injury (cf. Tornatore v Haggerty, 307 AD2d 522 [2003]; Temple v Doherty, 301 AD2d 979, 983 [2003])^[FN2]. We note further that plaintiff does not challenge the sufficiency of defendants' submissions as meeting their initial burden under the permanent consequential limitation category (see e.g. Clements v Lasher, 15 AD3d 712 [2005]). Thus, the remaining issue [*3]concerns only whether plaintiff met her shifted burden of raising a question of fact (see id.). In this regard, we find the affidavit of plaintiff's treating chiropractor to be insufficient.

In order to demonstrate a serious injury under this category, "the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones" (id. at 713; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Temple v Doherty, supra at 981). Here, the chiropractor's conclusions that plaintiff has a 10% to 15% permanent consequential limitation of her cervical spine and a 20% permanent consequential limitation of her lower back were based upon tests that relied primarily on her subjective complaints of pain (see Mack v Goodrich, 11 AD3d 846, 848 [2004]) and in any event do not establish a significant or consequential injury (see Trotter v Hart, 285 AD2d 772, 773 [2001]). Nor is there any indication in his affidavit concerning when these tests were performed, an omission that is relevant since there was only a handful of treatments after January 2003. Moreover, to the extent that this chiropractor references a mild to moderate muscle spasm, he does not sufficiently elaborate on this finding or correlate it to the subject accident. His undetailed opinions that plaintiff "is restricted by some loss of spinal motion as well as pain" (emphasis added) and has had "some difficulty" performing certain household chores also does not create an issue of fact. In sum, this affidavit does not contain an adequate factual foundation nor does it describe a permanent consequential limitation as a result of the subject accident (see e.g. Clements v Lasher, supra; Morgan v Beh, 256 AD2d 752, 753 [1998]; Decker v Stang, 243 AD2d 1033, 1036 [1997], lv denied 91 NY2d 812 [1998]).

Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: She also indicated on this form that she was not restricted in any of her normal activities at that time.

Footnote 2: Even if plaintiff's argument is considered more broadly, we would nevertheless find that she failed to raise a question of fact with respect to this category of serious injury.

 

 

Sullivan v. Barry Scott Agency Inc.

 

MEMORANDUM AND ORDER

Calendar Date: September 14, 2005
Before: Crew III, J.P., Mugglin, Rose, Lahtinen and Kane, JJ.


The DeLorenzo Law Firm, L.L.P., Schenectady (Susan
E. Beaudoin of counsel), for appellant.
DeGraff, Foy, Kunz & Devine, Saratoga Springs
(Matthew L. Chivers of counsel), for Barry Scott Agency, Inc.,
respondent.
Hiscock & Barclay, L.L.P., Albany (William C. Foster
of counsel), for Aetna Casualty and Surety Company,
respondent.




Rose, J.

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered August 20, 2004 in Saratoga County, which granted defendants' motions for summary judgment dismissing the complaint.

Plaintiff allegedly sustained injuries to his neck while single-handedly lifting a box containing a 100-pound television from the bed of his employer's delivery van. When plaintiff's claim for no-fault benefits was denied by his automobile insurer, he then commenced this action against the insurer and his insurance agent. Defendants eventually moved for summary judgment dismissing the complaint on the ground that plaintiff's injuries did not arise out of the use or operation of a motor vehicle (see Insurance Law § 5102 [b]). Supreme Court granted the motions and dismissed the complaint, prompting this appeal.

Inasmuch as "[t]he vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises" (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]), we agree with Supreme Court's conclusion that plaintiff's injuries sustained while [*2]unloading the van did not arise out of the use of the vehicle. Plaintiff's description of how his injuries occurred makes clear that they were caused by lifting a heavy object, and not by the van itself. He testified that the van was parked and not running, and he felt pain immediately upon lifting the box. Although he assumed that the van must have moved, he did not actually recall that it did so or testify that any such movement made him fall, twist or otherwise strain his neck. Instead, he stated that the pain he felt resulted from the strain of lifting the box. As plaintiff's injuries would have occurred even if he had been standing on the ground and lifting the box, his presence in the van at the time was wholly incidental (see Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889, 889 [1995]).

Plaintiff's argument that his insurer is nonetheless liable for no-fault benefits because it failed to timely disclaim coverage on this ground is equally unavailing. Here, the policy's no-fault coverage was expressly limited to injuries caused by an accident arising out of the use or operation of a motor vehicle. Since plaintiff's injuries were not shown to be the result of an insured accident, the insurer had no obligation to disclaim coverage (see Merchants Mut. Ins. Co. v Allcity Ins. Co., 245 AD2d 590, 592 [1997]; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362, 363 [1997]).

Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.

 

Toussaint v. Claudio

Allen D. Springer, P.L.L.C., Brooklyn (Sharon Weintraub
Dashow of counsel), for appellant.
Rivkin Radler, LLP, Uniondale (Melissa M. Murphy of
counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 9, 2004, which granted defendant's motion for summary judgment dismissing the complaint for failure to establish serious injury within the meaning of Insurance Law
§ 5102(d), unanimously modified, on the law, to deny the motion insofar as plaintiff's claim of serious injury is predicated upon allegations that he sustained a non-permanent injury in the subject automobile accident which incapacitated him for 90 of the 180 days immediately following the accident, and the complaint reinstated to that extent, and otherwise affirmed, without costs.

The reports of the defense medical experts, based on examinations of plaintiff conducted six years after the subject automobile accident, addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident, and were, accordingly, insufficient to sustain defendant summary judgment movant's burden of proof to establish prima facie that plaintiff had not sustained serious injury by reason of having been incapacitated from performing substantially all of his customary and daily activities for 90 of the 180 days following the accident (see Burford v Fabrizio, 8 AD3d 784, 786 [2004]; Loesburg v Jovanovic, 264 AD2d 301 [1999]).

Defendant, however, by showing a more than six-year gap in plaintiff's treatment, met his burden to demonstrate prima facie that plaintiff had not sustained serious injury involving a significant limitation in his use of a body function or system, and since plaintiff failed to come forward with a reasonable explanation for the gap, summary judgment dismissing plaintiff's [*2]claim of serious injury under the significant limitation category was correct (see Agramonte v Marvin, AD3d , 2005 NY App Div LEXIS 10906 [2005]; Pommells v Perez, 4 NY3d 566 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2005

CLERK

Smith v. Brito

Thomas D. Wilson, Brooklyn, for appellant.
Lewis Johs Avallone Aviles, LLP, Melville (Jean Marie
Kowalchuk of counsel), for Berman Brito, respondent.
Silverman Sclar Shin & Byrne PLLC, New York (Vincent
Chirico and Richard Lansky of counsel), for Mayoro Fall, respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered September 15, 2004, which granted defendant Brito's motion and defendant Fall's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Based upon reports from an orthopedist and a neurologist diagnosing plaintiff with a resolved cervical and lumbar strain and full cervical and lumbar ranges of motion, defendants met their initial burden as summary judgment movants to demonstrate, prima facie, that plaintiff had not sustained serious injury within the meaning of Insurance Law § 5102(d). Plaintiff did not meet her consequent burden (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Her medical submissions failed to establish a causal connection between the cervical and lumbar disc bulges and lumbar disc herniation indicated on her MRIs and the subject automobile accident (see Dubois v Simpson, 182 AD2d 993, 995 [1992]). In addition, plaintiff's medical submissions, as they bore upon and purported to substantiate her claimed range of motion impairment, failed to satisfy the requirement that there be some objective basis for a finding of such impairment (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002]). Plaintiff's claim of serious injury is also fatally undermined by [*2]virtue of her failure to explain notable gaps in her treatment for the alleged injuries (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2005

CLERK

Mary Immaculate Hospital v. Allstate Insurance Company, Appellant. (Index No. 5810/02)

2003-04755

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

5 A.D.3d 742; 774 N.Y.S.2d 564; 2004 N.Y. App. Div. LEXIS 3597

 
 
February 13, 2004, Submitted March 29, 2004, Decided

HEADNOTES:  [***1]  Insurance--No-Fault Automobile Insurance

COUNSEL: Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant.
 
Joseph Henig, P.C., Bellmore, N.Y., for respondents.

JUDGES: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, JJ. SANTUCCI, J.P., KRAUSMAN, LUCIANO and TOWNES, JJ., concur.

OPINION:  [*742]   [**564]  In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals from so much of a judgment of the Supreme Court, Nassau County (Skelos, J.), dated April 7, 2003, which, upon granting those branches of the plaintiffs' motion which were for summary judgment on their first, fourth, fifth, and seventh causes of action, is in favor of the plaintiff Mary Immaculate Hospital, as assignee of Lucretia Hall and Sosamma Johnkutty, and against it in the total sum of $ 124,035.43, in favor of the plaintiff New York United Hospital, as assignee of Jean A. Cudilio, and against it in the total sum of $ 6,633.33, and in favor of the plaintiff White Plains Hospital, as assignee of Rashid Chugstai, and against it in the total sum [***2]  of $ 116.14.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the defendant's contention, the plaintiff hospitals made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received,  [*743]  and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; St. Luke's Roosevelt Hosp. v American Tr. Ins. Co., 1 A.D.3d 498, 767 N.Y.S.2d 252 [2003]; St. Luke's Roosevelt Hosp. v Allstate Ins. Co., 303 A.D.2d 743, 757 N.Y.S.2d 457 [2003]; New York & Presbyt. Hosp. v Allstate Ins. Co., 295 A.D.2d 412, 743 N.Y.S.2d 733 [2002]; see also Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 A.D.2d 321, 746 N.Y.S.2d 262 [2002]). Furthermore, the defendant's submissions in opposition were insufficient to raise an issue of fact as to whether it timely issued a partial denial of the claim asserted by the plaintiff Mary Immaculate Hospital, as assignee of Lucretia Hall, or paid the claim asserted by [**565]  the plaintiff New York United Hospital, as assignee of Jean A. Cudilio.

Santucci,  [***3]  J.P., Krausman, Luciano and Townes, JJ., concur.