September 21, 2010

Lenox Hill Radiology v Government Empls. Ins. Co. (2010 NY Slip Op 51638(U))

https://www.beynensonlaw.com/case-law/lenox-hill-radiology-v-government-empls-ins-co-2010-ny-slip-op-51638u/

Court
Appellate Term, First Department
Decided
September 21, 2010
Citation
2010 NY Slip Op 51638(U)
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Policy issues Trial and evidence
Cite as
Lenox Hill Radiology v Government Empls. Ins. Co., 2010 NY Slip Op 51638(U) (App Term, 1st Dept 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established that a Louisiana pedestrian accident did not arise from an insured incident through admissible claims-log evidence. At a nonjury trial, the only disputed issue was coverage for radiology services. The insurer's underwriter properly relied on a claims log qualifying as a business record; a witness with personal knowledge of the accident was unnecessary. Naming the assignor as the insured on the provider's claim form did not require an exhaustive search for coverage. Although Insurance Law § 5106 (d) permits multiple insurers to owe benefits, the claimant must initially supply sufficient NF-2 information to determine insured status. The Appellate Term, First Department, reversed the provider's judgment and directed dismissal of the complaint.

Reported in New York Official Reports at Lenox Hill Radiology v Government Empls. Ins. Co. (2010 NY Slip Op 51638(U))

[*1]
Lenox Hill Radiology v Government Empls. Ins. Co.
2010 NY Slip Op 51638(U)
Decided on September 21, 2010
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 21, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570448/09.
Lenox Hill Radiology Julia Higginbotham, Plaintiff-Respondent,

against

Government Employees Insurance Company, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about June 26, 2007, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $878.67.

Per Curiam.

Judgment (Peter H. Moulton, J.), entered on or about June 26, 2007, reversed, without costs, and judgment directed in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

Plaintiff, a provider of radiology services, submitted a claim to defendant for medical services rendered to plaintiff’s assignor, Julia Higginbotham. The claim was denied on coverage grounds, defendant asserting that its records indicated that Higginbotham was a pedestrian struck by a vehicle owned and operated by Linell McWilliams (an insured of defendant) in the State of Louisiana, where there is no no-fault coverage or obligation to pay first-party benefits. At trial, defendant stipulated to plaintiff’s prima facie case, and the only issue litigated was defendant’s lack of coverage defense. In support of its defense, defendant called one witness, a senior underwriter. The court subsequently rendered judgment in favor of plaintiff and awarded it the damages sought in the complaint.

We disagree with the trial court’s conclusions that defendant’s lack of coverage defense was predicated solely on inadmissible hearsay and that defendant, to establish its lack of coverage defense, was obligated to produce a witness with personal knowledge of the underlying accident. Defendant’s witness, whose testimony showed that the subject accident occurred in Louisiana and involved a pedestrian (Higginbotham) who was struck by a motor vehicle owned and operated by a Louisiana driver (McWilliams), appropriately relied on the contents of the subject claims log, a business record which constitutes an exception to the hearsay rule.

Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold. While more than one insurer may be obligated to pay first-party no-fault benefits for a covered event (see Insurance Law § 5106[d]), the obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured. Not only did plaintiff fail to satisfy that obligation here, but plaintiff’s counsel readily admitted at trial that counsel had no inkling whether Higginbotham was defendant’s insured.

Since defendant demonstrated that the claim did not arise out of an insured incident, it established its lack of coverage defense (see generally Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), and the complaint should have been dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 21, 2010

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