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October 20, 2021

Matter of Hereford Ins. Co. v Corona Med. PC (2021 NY Slip Op 50991(U))

https://www.beynensonlaw.com/case-law/matter-of-hereford-ins-co-v-corona-med-pc-2021-ny-slip-op-50991u/

Court
Civil Court of the City of New York, New York County
Judge
Sabrina B. Kraus, J.
Decided
October 20, 2021
Citation
2021 NY Slip Op 50991(U)
Posture
Article 75 petition
Outcome
Insurer prevailed
Issues
CPLR article 75 (arbitration awards) Policy issues Priority, other coverage
Legal questions
Court review of arbitration awards · Workers' comp or other insurer primary (see the maps)
Cite as
Matter of Hereford Ins. Co. v Corona Med. PC, 2021 NY Slip Op 50991(U) (Civ Ct, New York County 2021)

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.

A no-fault arbitration award against the insurer was vacated because its policy did not cover the assignor's rental vehicle. The Civil Court, New York County, granted the insurer's petition under CPLR 7511 (b) (1) (iii) and denied the provider's and MVAIC's cross-petitions. The policy covered only the assignor's owned vehicle. The arbitrator treated the dispute as one of payment priority and required the insurer first notified to process the claim, without evidence that its policy covered the rental vehicle. The unsupported coverage finding rendered the award arbitrary and capricious. Although the court agreed that MVAIC was not liable because the rental vehicle was insured, confirming that portion while vacating the award against the insurer would constitute an unauthorized modification under CPLR 7511 (c).

Reported in New York Official Reports at Matter of Hereford Ins. Co. v Corona Med. PC (2021 NY Slip Op 50991(U))



In the Matter of the Arbitration of certain controversies between Hereford Insurance Company, Petitioner,

against

Corona Medical PC and MVAIC, Respondents.

Index No. CV 13288/21

GOLDBERG, MILLER & RUBIN P.C.
Attorneys for Petitioner
By: Harlan R. Schreiber, Esq.
1501 Broadway, Suite 715
New York, New York 10036
646.863.1531

ISRAEL, ISRAEL & PURDY, LLP
Attorneys for Respondent Corona Medical P.C.
By: Michael Hoenig, Esq.
11 Grace Avenue – Suite 11021
Great Neck, New York 11001
516.829.0363

MARSHALL & MARSHALL, PLLC
Attorneys for Respondent MVAIC
By: Jeffrey Kadsushin, Esq.
30 Jericho Executive Plaza, Suite 100 West
Jericho, New York 11753
516.997.6000


Sabrina B. Kraus, J.

BACKGROUND

Mostafa Hekal (Assignor), a 29 year old male, was injured in a motor vehicle accident on March 8, 2019. Assignor was driving a 2018 Ford, with New Jersey plate L62KUG, when it was involved in a collision on the Southern State Parkway in Hempstead, New York. The 2018 Ford was a rental car owned by AutoTeam, Inc. and insured under New Jersey code 989, by Unitrin Preferred Insurance Company.

Assignor maintained a business policy in New York through Hereford, which is a New York State livery insurer. Assignor submitted the claim to Hereford and Hereford denied the claim, because the rental car was not an insured vehicle under the Hereford policy.

Assignor then submitted the claim to MVAIC who denied the claim because AutoTeam has a policy which covered the vehicle.

The amount in dispute was $550.00.

The parties submitted to arbitration to resolve the underlying dispute regarding no fault benefits. Corinne Pascariu (CP), the Arbitrator, held a hearing on June 29, 2020 and October 22, 2020 and issued a decision finding that MVAIC was not liable for the claim as a policy existed. CP further found:

… where, as here, there may be more than one insurer — the insurer providing coverage to the vehicle Assignor had been renting and the insurer providing for hire coverage to the vehicle Assignor had been driving — liable for providing first-party No-Fault benefits, and “a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first party benefits then the first insurer to whom notice of claim is given…shall be responsible for payment….

CP went on to find that as Hereford was the first to receive the notice of claim, it was responsible for processing the claim and its assertion that AutoTeam Inc is the insurer responsible must be resolved through intercompany arbitration.[FN1]

The award was confirmed by Victor J. D’Ammora (VD), a Master Arbitrator pursuant to decision dated March 1, 2021. VD agreed with CP’s analysis and conclusions and found that CP’s decision was neither arbitrary and capricious nor incorrect as a matter of law.

THE PETITION

Hereford filed the petition commencing this proceeding on May 14, 2021. MVAIC and Corona Medical both appeared by counsel and filed opposition and cross-petitions. On October 14, 2021, the papers were fully submitted, and on October 15, 2021, the case was assigned to this court for determination.

The petition and cross-petitions are consolidated herein for determination.

For the reasons stated below, the petition to vacate the award is granted and the cross-petitions are denied.

There Was No Basis in the Record to Find Coverage by Hereford Existed

CPLR § 7511(b)(1)(iii) provides for an application for a party to vacate an arbitration [*2]award, where the arbitrator exceeded her power. While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the case at bar, has an additional layer of review to insure that the award is supported by evidence in the record and that the award is not arbitrary and capricious (Liberty Mutual Fire Insurance Co v Global Liberty Insurance Co. of NY 144 AD3d 1160, 1161).

In this case, the insurance policy issued by Hereford clearly on its face indicates it covers only the automobile owned by Assignor, and therefore provides no coverage for the vehicle Assignor rented and was driving when he got into the accident. The vehicle covered by Hereford is a 2015 Chevrolet, specifically identified by a PIN number on the declaration page of the policy issued by Hereford. The issue below was not one of priority of payment, as ruled on by the Arbitrator, but a lack of coverage defense, which the Arbitrator did not rule on, noting only that there “may” be coverage under the policy issued by Hereford without citing any evidence for this conjecture.

It is well settled that where an insurance company made no contract of insurance with the person and for the vehicle involved in the accident, liability is properly denied (Zappone v Homes Ins. Co. 55 NY2d 131, 136). In such a situation “… although the carrier may have some other relationship with the owner or driver of the vehicle, it has no contract with that person with respect to the vehicle involved and, there being no contractual relationship with respect to the vehicle, is not required to deny coverage or otherwise respond to a claim arising from an accident involving that vehicle except as statute mandates or courtesy suggests (Id at 136-137).” The court in Zapone further noted that the purpose of requiring company’s disputing priority of payment to go to intercompany arbitration was “.. to avoid prejudice to the injured claimant … not, however to provide an added source of indemnification which had never been contracted for and for which no premium had ever been paid (Id at 137).” Additionally, a lack of coverage defense may be raised regardless of whether the insurer’s denial was timely or in proper form [Gentlecare Ambulatory Anesthesia Services v Hereford 69 Misc 3d 144(A)].

Under these circumstances, and given the lack of evidence in the record for any finding that coverage by Herford exists, the award is arbitrary and capricious and must be vacated (Global Liberty Insurance Co. v Medco Tech, Inc. 170 AD3d 558; Progressive Cas. Ins.. Co. v New York State Ins. Fund 850 NYS2d 478; Allstate Insurance Co v Countrywide Insurance Co. 2002 NY Slip Op 40177(U)).

The cross-petition of Corona Medical PC is denied for the reasons stated above.

The cross-petition of MVAIC is also denied. Although, the court agrees with that portion of the arbitrator’s decision which found that there was no liability as pertains to MVAIC, because AutoTeam, Inc. had a policy, the court can not both vacate the award as against Hereford and confirm the award as to MVAIC. To do so would constitute a modification of the award, and there is no applicable basis under CPLR 7511( c) for this court to issue a modification.[FN2]

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the petition is granted to the extent of vacating and setting aside the award of Victor J’ D’Ammora, The Mater Arbitrator, dated March 1, 2021 with AAA [*3]Assessment Number 17-20-1157-8170, and the award of Corinne Pascariu, the Lower Arbitrator, dated October 28, 2020, upon the grounds that the award was arbitrary and capricious and exceeded the Master Arbitrator’s authority; and it is further

ORDERED that the cross-petitions of MVAIC and Corona Medical PC are denied in their entirety; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.

This constitutes the decision and order of this court.

New York, New York
October 20, 2021
Hon. Sabrina B. Kraus,
JCC

Footnotes

Footnote 1:CP also made a finding that Allstate’s denial was timely issued although Allstate does not appear to have been a party to the arbitration.

Footnote 2:Neither AutoTeam Inc, nor its insurer, Unitrin were party to the underlying arbitration. There is no discussion of why this party was not joined in the arbitrator’s decision.

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Court review of arbitration awards

Open the full map

When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?

This decision: Award vacated or modified because it was irrational, arbitrary and capricious, without evidentiary support or contrary to settled law

Vacated the master and lower awards as arbitrary and capricious because nothing in the record supported coverage under the insurer's policy, which covered only another vehicle, and the arbitrator wrongly treated a lack-of-coverage defense as a priority dispute.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 9
  • Trial courtsTrial 11
2010, Court of Appeals: 1 decision (1 Award stands)2023, Appellate Division: 3 decisions (1 Award stands, 1 Vacated: irrational/arbitrary, 1 Vacated: exceeded power)2021, Appellate Division: 1 decision (1 Award stands)2020, Appellate Division: 4 decisions (2 Award stands, 1 Vacated: irrational/arbitrary, 1 Remanded, undecided)2019, Appellate Division: 5 decisions (2 Award stands, 3 Vacated: irrational/arbitrary)2018, Appellate Division: 3 decisions (3 Award stands)2017, Appellate Division: 3 decisions (1 Award stands, 2 Vacated: irrational/arbitrary)2016, Appellate Division: 4 decisions (2 Award stands, 2 Vacated: irrational/arbitrary)2015, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2014, Appellate Division: 1 decision (1 Award stands)2024, Appellate Division: 3 decisions (3 Award stands)2026, Appellate Division: 2 decisions (2 Award stands)2009, Appellate Division: 1 decision (1 Award stands)2010, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2022, Appellate Term: 1 decision (1 Vacated: exceeded power)2019, Appellate Term: 3 decisions (3 Award stands)2018, Appellate Term: 1 decision (1 Award stands)2017, Appellate Term: 1 decision (1 Remanded, undecided)2016, Appellate Term: 1 decision (1 Remanded, undecided)2011, Appellate Term: 1 decision (1 Remanded, undecided)2009, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2022, Trial courts: 1 decision (1 Award stands)2021, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2018, Trial courts: 1 decision (1 Award stands)2015, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2008, Trial courts: 1 decision (1 Award stands)2006, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2005, Trial courts: 1 decision (1 Award stands)2024, Trial courts: 1 decision (1 Award stands)2025, Trial courts: 1 decision (1 Award stands)This decision
20052010201520202025
Award standsVacated: irrational/arbitraryVacated: exceeded powerRemanded, undecidedThis decisionCites it or cited by itCited or followed

Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 13 (this one included) are in the same category.

Workers' comp or other insurer primary

Open the full map

Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: The insurer was never liable: its objection is a lack of coverage, so the pay-first rule does not apply

Held the first-insurer priority rule inapplicable because the insurer's policy covered only the assignor's own car, not the rented vehicle involved, so its denial raised lack of coverage, not a priority-of-payment dispute among liable insurers.

  • Appellate DivisionApp Div 2
  • Appellate TermApp Term 5
  • Trial courtsTrial 2
2019, Appellate Division: 1 decision (1 WC defense not shown)2011, Appellate Division: 1 decision (1 First insurer must pay)2018, Appellate Term: 1 decision (1 WC defense precluded)2012, Appellate Term: 1 decision (1 First insurer must pay)2010, Appellate Term: 1 decision (1 Referred to WC Board)2009, Appellate Term: 1 decision (1 First insurer must pay)2017, Appellate Term: 1 decision (1 Referred to WC Board)2021, Trial courts: 1 decision (1 No coverage, not priority)2008, Trial courts: 1 decision (1 Referred to WC Board)This decision
2008201020122014201620182020
Referred to WC BoardWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decision

Of the 9 decisions on this question in the First Department courts and the Court of Appeals, 1 (this one included) is in the same category.

Cited in this decision

  • Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y. (2016 NY Slip Op 08078)A loss-transfer arbitration award reducing reimbursement by half lacked evidentiary support for the finding of improper claim payments.
  • Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.
  • Matter of Global Liberty Ins. Co. v Medco Tech, Inc. (2019 NY Slip Op 02167)The record did not rationally support a finding that the need for the provider's medical equipment was causally related to the accident.

Similar decisions

  • Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2016 NY Slip Op 50297(U))The provider failed to establish grounds to vacate an award denying reimbursement because the no-fault policy was exhausted.
  • State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co. (2020 NY Slip Op 51304(U))An intercompany reimbursement arbitration cannot relate back to a lawsuit against a different party to toll the limitations period.
  • American Tr. Ins. Co. v Trinity Pain Mgt. of Staten Is., PLLC (2023 NY Slip Op 51337(U))The insurer's petition to vacate a no-fault award was denied because its policy-exhaustion evidence was insufficient.
  • American Tr. Ins. Co. v Excell Clinical Lab (2024 NY Slip Op 50820(U))A no-fault arbitrator deciding medical necessity need not require the provider to submit expert evidence rebutting the insurer's peer review.
  • Matter of Global Liberty Ins. Co. v Professional Chiropractic Care P.C. (2015 NY Slip Op 50936(U))A rational master arbitration award is not subject to judicial vacatur for mere errors of substantive law.
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