January 5, 2017

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2017 NY Slip Op 50029(U))

https://www.beynensonlaw.com/case-law/daily-med-equip-distrib-ctr-inc-v-allstate-ins-co-2017-ny-slip-op50029u/

Court: Appellate Term, Second Department
Decided: January 5, 2017
Citation: 2017 NY Slip Op 50029(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues

Cite as

Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co., 2017 NY Slip Op 50029(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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Summary

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

The insurer failed to establish valid Florida policy rescission because it did not prove notice or timely return or tender of premiums. The provider sought assigned benefits for a New York accident involving a vehicle insured under a Florida policy. The insurer asserted retroactive rescission based on misrepresentations about residence and garaging under Florida Statutes Annotated, title 37, § 627.409. Its submissions did not demonstrate that it sent a rescission notice or returned or tendered all premiums within a reasonable time after discovering the grounds for rescission. It therefore failed to establish that the policy was void from inception under Florida law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment cross motion.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v Allstate Ins. Co. (2017 NY Slip Op 50029(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Daily Medical Equipment Distribution Center, Inc., as Assignee of Mark Coleman, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the rescission of the automobile insurance policy. The Civil Court, by order dated July 30, 2014, denied both motions finding, pursuant to CPLR 3212 (g), that both parties had established their prima facie cases and that the only triable issue of fact is whether the assignor had the intent to misrepresent on his insurance application.

On appeal, defendant contends that Florida law controls and, pursuant to said law, an insurer does not have to prove intent to misrepresent in order to void a policy ab initio; rather, an insurer only has to show that the policy was validly rescinded pursuant to the laws of Florida.

At the time of the accident at issue, which occurred in New York, the vehicle was insured by defendant under a Florida automobile insurance policy, and was being driven by the policyholder, plaintiff’s assignor. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, plaintiff’s assignor did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

Inasmuch as defendant’s cross motion papers failed to demonstrate that a rescission notice was sent to the insured, or that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant failed to show, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire [*2]and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: January 05, 2017

Cited in this decision

A label shows how this decision treated the case it cites.

W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2012 NY Slip Op 22142) FollowedUnder Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation.

Similar decisions

T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50665(U))The insurer failed to prove mailing of the rescission notice and premium refund needed to establish rescission of its Florida policy.
Blackman Pelham Med., P.C. v Ocean Harbor Cas. Ins. Co. (2021 NY Slip Op 51257(U))The insurer proved valid retroactive rescission of the Florida policy by sending notice and timely returning all premiums.
Universal Health Chiropractic, P.C. v Infinity Prop. & Cas. Co. (2014 NY Slip Op 50350(U))The insurer established a valid retroactive rescission of the assignor's Florida automobile policy for material misrepresentations.
NR Acupuncture, P.C. v Ocean Harbor Cas. Ins. Co. (2019 NY Slip Op 51892(U))The insurer failed to establish valid Florida policy rescission or that a Florida declaratory judgment bound the provider.
Compas Med., P.C. v Infinity Group (2016 NY Slip Op 50042(U))The insurer established valid retroactive rescission under Florida law, and the provider failed to raise a triable issue.