July 20, 2009
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2009 NY Slip Op 29310)
https://www.beynensonlaw.com/case-law/v-s-med-servs-p-c-v-allstate-ins-co-2009-ny-slip-op-29310/
- Decided
- July 20, 2009
- Citation
- 2009 NY Slip Op 29310 · 25 Misc 3d 39
- Posture
- Trial
- Outcome
- Insurer prevailed
- Earlier history
- Appeal from V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000) (Affirmed)
- Later treatment
- Followed in 5 later decisions (see Cited by)
- Legal questions
- No covered accident (founded belief) (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 V.S. Med. Servs., P.C. v Allstate Ins. Co. (2009 NY Slip Op 29310)
| V.S. Med. Servs., P.C. v Allstate Ins. Co. |
| 2009 NY Slip Op 29310 [25 Misc 3d 39] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Friday, January 8, 2010 |
[*1]
| V.S. Medical Services, P.C., as Assignee of Carlos Gaviria, Appellant, v Allstate Insurance Co., Respondent. |
Supreme Court, Appellate Term, Second Department, July 20, 2009
APPEARANCES OF COUNSEL
Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.
{**25 Misc 3d at 40} OPINION OF THE COURT
Memorandum.
Judgment affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant argued at trial that there was no coverage for plaintiff’s assignor’s alleged injuries because the injuries were not sustained in a covered accident. Following the nonjury trial, the Civil Court dismissed the complaint, finding that defendant had sustained its burden of proving lack of coverage by a preponderance of the evidence. On appeal, plaintiff contends that defendant had to prove, by clear and convincing evidence, rather than by a mere preponderance of the evidence, that the alleged injuries were the result of an insurance fraud scheme. Plaintiff further argues that even if the Civil Court correctly determined that defendant’s burden could be satisfied by defendant proving its defense by a mere preponderance of the evidence, the evidence presented by defendant was insufficient to satisfy this burden.
In its decision, the Civil Court noted that, while an insurer may put forth evidence of a fraudulent scheme in order to prove that a collision was not an accident, the insurer need not prove fraud (see Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005]). As stated in the court’s decision,
“courts commonly invoke the term ‘fraud’ when discussing the defense of lack of coverage; this may be because so many cases involving allegedly noncovered incidents center on accidents purportedly staged for the purpose of generating fraudulent insurance claims . . . Perhaps the seminal embodiment of this formulation is the Second Department’s pronouncement [in State Farm Mut. Auto. Ins. Co. v Laguerre (305 AD2d 490, 491 [2003])] that ‘[a] deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 334, 339 [2006]).
However, explained the Civil Court, “it does not matter whether the accident was staged in furtherance of an insurance fraud scheme or was deliberately caused under some other [*2]circumstances” (id. at 335). Rather, the court need only determine “whether the incident was unintentional (i.e., a true accident) or whether at least one driver intended to make contact (i.e., a deliberate event)” (id. at 340). This is because “[i]f the collision{**25 Misc 3d at 41} was an intentional occurrence, then it is outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (id. at 341). We agree with the Civil Court’s reasoning regarding this issue.
In Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277, 284 [2007], affd 10 NY3d 556 [2008]), the Appellate Division explained that “[w]hat excuses the insurer’s compliance with the 30-day rule in a staged-accident case is not the egregiousness of the fraud; rather, it is the absence of coverage for something that is not an ‘accident.’ ” As noted by the Appellate Division, “[t]he rationale for such [a] holding[ ] is that a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an ‘accident’ covered by the subject insurance policy” (id. at 283). Thus, in the case at bar, defendant could properly premise its defense upon a lack of coverage and could establish this defense by a preponderance of the evidence; defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter (see Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855 [2008]), by clear and convincing evidence (see Simcuski v Saeli, 44 NY2d 442 [1978]; Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255 [1983]). Upon a review of the record, we agree with the Civil Court’s determination that defendant’s proof, which plaintiff failed to rebut, established by a preponderance of the evidence its defense of lack of coverage (see Praimnath v Torres, 59 AD3d 419 [2009]). Accordingly, the judgment is affirmed.
Weston, J.P., Rios and Steinhardt, JJ., concur.
Legal questions
A question 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 proved the injuries did not arise from a covered accident
Held that the insurer could prove a deliberate, non-accidental collision by a preponderance of the evidence without proving fraud's elements by clear and convincing evidence, and that its unrebutted trial proof established lack of coverage.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (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.
- V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000) AffirmedAn insurer asserting a staged collision at trial need only rebut presumed coverage; the provider retains the burden of persuasion.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2007 NY Slip Op 05220) FollowedAn insurer's untimely denial precludes a defense that billed medical supplies were never delivered when the defense does not concern coverage.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Cited by (13)
A label shows how the later decision treated this one.
- American Alternative Ins. Corp. v Washington (2018 NY Slip Op 51210(U)) FollowedThe insurer established a founded belief that the claimed injuries did not arise from an insured incident.
- Integon Natl. Ins. Co. v Salazar-Ochoa (2026 NY Slip Op 50292(U)) FollowedAn insurer need not provide coverage for an intentionally caused collision, even to innocent third parties.
- Liberty RX Inc v Liberty Mut. Ins. Co. (2026 NY Slip Op 50992(U)) FollowedThe insurer's EUO inconsistencies raised credibility issues but did not establish a staged collision as a matter of law.
- CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U)) FollowedThe insurer established a founded belief that the collision was intentionally caused, and the provider failed to raise a triable issue.
- Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U)) FollowedThe insurer's evidence of EUO inconsistencies and allegedly disproportionate injuries did not establish a staged collision as a matter of law.
- Belt Parkway Imaging, P.C. v State Wide Ins. Co. (2010 NY Slip Op 52229(U))The insurer failed to prove provider ineligibility based on unlicensed control, even under a preponderance standard.
- Radiology Today, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 21161)The provider's untimely discovery challenge and failure to produce any discovery supported dismissal of its complaint.
- Medical Diagnostic Ctr. v Ameriprise Ins. Co. (2026 NY Slip Op 50235(U))The insurer failed to establish that the collision was staged or that the transportation network company exclusion barred coverage.
- Pavlova v Allstate Ins. Co. (2019 NY Slip Op 50016(U))The insurer's EUO nonappearance defense was precluded by a denial issued more than 30 days after the last scheduled EUO. The Civil Court, Kings County, denied summary judgment to the insurer and granted summary judgment to the provider.
- V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 50615(U))An untimely denial does not preclude an insurer's defense that the collision was staged in furtherance of insurance fraud.
Similar decisions
- Webster Diagnostic Medicine, P.C. v State Farm Ins. Co. (2007 NY Slip Op 27134)The insurer's conclusory fraud allegations and passenger EUO discrepancies failed to establish a founded belief of noncoverage.
- Universal Open MRI of the Bronx, P.C. v State Farm Mut. Auto Ins. (2006 NY Slip Op 50853(U))An insurer must support a staged-collision defense at trial with admissible evidence under a preponderance standard.
- Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2007 NY Slip Op 50163(U))The insurer raised a coverage issue through a founded belief of insurance fraud despite failing to prove timely denials.
- Bronx Expert Radiology, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50682(U))The insurer's investigator affidavit failed to show a founded belief that the claimed injuries did not arise from an insured incident.
- Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51275(U))The insurer's investigator affidavit failed to establish a founded belief that the claimed injuries did not arise from an insured incident.