July 15, 2015
Nationwide Gen. Ins. Co. v Bates (2015 NY Slip Op 06122)
https://www.beynensonlaw.com/case-law/nationwide-gen-ins-co-v-bates-2015-ny-slip-op-06122/
- Decided
- July 15, 2015
- Citation
- 2015 NY Slip Op 06122 · 130 AD3d 795
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 5 later decisions (see Cited by)
- Legal questions
- No covered accident (founded belief) · Proof of mailing · No-show defense: insurer's proof (see the maps)
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.
Reported in New York Official Reports at Nationwide Gen. Ins. Co. v Bates (2015 NY Slip Op 06122)
| Nationwide Gen. Ins. Co. v Bates |
| 2015 NY Slip Op 06122 [130 AD3d 795] |
| July 15, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Nationwide General Insurance Company,
Respondent, v Linwood Bates III et al., Defendants, and Active Care Medical Supply Corp. et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellants.
McCormack & Mattei, P.C., Garden City, N.Y. (Rosemary E. Ross and Nicole Holler of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay certain no-fault claims submitted to it by the defendants, the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), entered October 21, 2013, as, upon an order of the same court entered August 7, 2013, among other things, granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against them, is in favor of the plaintiff and against them declaring that the plaintiff has no duty to provide coverage to them and that the policy issued by the plaintiff to the defendant Linwood Bates III is null and void with respect to them.
Ordered that the judgment is reversed insofar as appealed from, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., are denied, the order is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
The plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to pay no-fault claims submitted to it by the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc. (hereinafter together the appellants), in connection with three automobile collisions involving an automobile owned by the defendant Linwood Bates III (hereinafter Bates) and insured by the plaintiff. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that it is not required to pay no-fault claims to certain medical providers in connection with the three collisions on the ground that the collisions were intentional and staged in furtherance of a fraud scheme. The Supreme Court granted the plaintiff’s motion.
“[A]n intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]; see Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663, 664 [2015]).
[*2] In support of its motion for summary judgment on the complaint, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff asserted that several defendants failed to attend their scheduled depositions, which was purportedly a breach of Bates’s insurance contract with the plaintiff. The plaintiff, however, failed to submit evidence from someone with personal knowledge of the mailings of the deposition requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). In addition, the uncertified police accident reports submitted by the plaintiff were not admissible (see Adobea v Junel, 114 AD3d 818, 820 [2014]; Cheul Soo Kang v Violante, 60 AD3d 991 [2009]; Gagliano v Vaccaro, 97 AD2d 430, 431 [1983]). Further, the unsigned and unsworn deposition transcript of the defendant Miguel Ortiz was inadmissible (see CPLR 3116; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51 [2014]; McDonald v Mauss, 38 AD3d 727, 728 [2007]). The plaintiff submitted an affidavit of its investigator, but the investigator relied, mostly, on inadmissible evidence, and lacked personal knowledge of the facts surrounding the three collisions. Accordingly, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]).
Since the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the appellants, and we need not consider the sufficiency of the appellants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The appellants’ remaining contentions have been rendered academic in light of our determination. Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.
Legal questions (3)
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.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open
Held the insurer failed to show prima facie that the collisions were staged because its police reports were uncertified, the deposition transcript unsigned, and the investigator relied on inadmissible evidence without personal knowledge.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer failed to prove mailing of the deposition (examination) requests because it submitted no evidence from anyone with personal knowledge of the mailings, defeating its breach-of-condition argument.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed (rules on the question, but another ground decided the case)
Held the insurer's claim that defendants breached the policy by not attending scheduled depositions failed because it offered no evidence from anyone with personal knowledge of mailing the requests.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212) Contrasted (cf., but see)A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
Cited by
A label shows how the later decision treated this one.
- National Gen. Ins. Online, Inc. v Blasco (2022 NY Slip Op 06252) Contrasted (cf., but see)The insurers established through admissible evidence that the collisions were intentionally caused or staged, defeating no-fault coverage.
- Progressive Advanced Ins. Co. v McAdam (2016 NY Slip Op 03484) FollowedThe insurer failed to establish staged collisions or proper mailing of EUO requests through admissible proof.
- Clear Water Psychological Servs. PC v American Tr. Ins. Co. (2016 NY Slip Op 26420) FollowedThe insurer obtained a 90-day stay for a Workers' Compensation Board determination despite an inadmissible police accident report.
- Blano Med., P.C. v Hertz Co. (2023 NY Slip Op 51406(U)) FollowedThe defendant failed to prove that another entity was the proper defendant or that it was self-insured, defeating amendment and dismissal.
- Premier Anesthesia v Avis Budget Car Rental, LLC (2022 NY Slip Op 50170(U)) FollowedThe insurer failed to establish that it insured neither vehicle involved in the collision because its coverage proof was insufficient.
- Ultimate Massage Therapy, P.C. v Utica Mut. Ins. Co. (2020 NY Slip Op 51613(U)) FollowedThe Workers' Compensation Board has primary jurisdiction to determine whether the Workers' Compensation Law applies.
- Parisien v Esurance (2023 NY Slip Op 51235(U))The insurer's founded belief that the collision was staged did not establish its coverage defense through sufficient admissible evidence.
Similar decisions
- Adirondack Ins. Exch. v Rodriguez (2023 NY Slip Op 02095)The insurers established that two collisions were intentional and excluded from no-fault coverage, including coverage for innocent third parties.
- A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2005 NYSlipOp 50785(U))The insurer's attorney affirmation and unsworn reports failed to raise a triable staged-collision issue without an excuse for inadmissibility.
- Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. (2015 NY Slip Op 03340)The insurers failed to establish timely and proper mailing of denials based on missing verification and EUO nonappearance.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.
- A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U))The providers' ambiguous billing affidavit failed to establish a prima facie case, but the insurer also failed to obtain dismissal.