Appellate Division, Second Department
Jan 26, 2006
2006 NY Slip Op 00548
The petitioning insurer failed to establish grounds to vacate an arbitration award entered after proper notice and its nonparticipation. In a proceeding against MVAIC, the insurer sought relief under CPLR article 75 from an award entered on default. CPLR 7511 (b) supplies the exclusive grounds for vacatur, and the insurer established none. In particular, proper service of the notice of intention to arbitrate, followed by failure to participate, provided no basis for vacatur under CPLR 7511 (b) (2). The Appellate Division, Second Department, affirmed denial of the petition, leaving the award against the petitioning insurer intact.
Appellate Division, Third Department
Jan 26, 2006
2006 NY Slip Op 00431
The claimant obtained belated settlement approval based on serious-injury proof difficulties and no prejudice to the compensation carrier. The Appellate Division, Third Department, affirmed nunc pro tunc approval of a third-party negligence settlement under Workers' Compensation Law § 29 (5). The injured worker had received workers' compensation and no-fault benefits but settled without the workers' compensation carrier's required consent. After an earlier reversal for insufficient documentation, additional evidence suggested difficulty proving a serious injury, and the delay caused the carrier no prejudice. Although an approval application normally must be made within three months of settlement, the trial court considered the relevant factors and did not abuse its broad discretion.
Appellate Division, Second Department
Jan 24, 2006
2006 NY Slip Op 00490
Split result
The insurer raised a triable issue about the provider's verification compliance but failed to establish entitlement to dismissal. The Appellate Division, Second Department, modified the order to deny the provider summary judgment on the first cause of action and affirmed denial of the insurer's cross motion on that cause. The provider initially established nonpayment or denial within 30 days under 11 NYCRR 65-3.8 (c). The insurer's evidence nevertheless raised a factual issue concerning compliance with verification demands under 11 NYCRR former 65.15 (g) (1) (i) and (2) (iii). Until the start of the insurer's 30-day response period was established, a claim for payment was premature.
Appellate Division, Third Department
Jan 12, 2006
2006 NY Slip Op 00205
Provider prevailed
The SUM insurer failed to show prejudice from a late proof-of-claim form after prompt accident notice and a no-fault claim. The Appellate Division, Third Department, affirmed denial of a permanent arbitration stay under CPLR 7503. The claimants' attorney promptly notified the insurer of the accident, asserted a no-fault claim and potential SUM claim, and supplied a police report and pertinent medical records. SUM notice was repeated, but the insurer disclaimed before receiving the completed form. Applying Rekemeyer v State Farm Mut. Auto. Ins. Co., the court required prejudice under these circumstances. The insurer did not deny receiving the correspondence and documents and showed no prejudice, so disclaimer was unavailable.
Appellate Division, Second Department
Jan 10, 2006
2006 NY Slip Op 00141
Insurer prevailed
The insurer obtained vacatur of an unopposed summary judgment order by presenting a reasonable excuse and a possible meritorious defense. The providers appealed only the portion of the order vacating their earlier summary judgment award in an action for no-fault medical payments. Under CPLR 5015 (a), the Supreme Court's exercise of discretion was supported by the excuse, the absence of willfulness, the lack of prejudice to the providers, and the possible defense. The Appellate Division, Second Department, affirmed the order, insofar as appealed from.
Trial court, Third Department
Jan 27, 2006
2006 NY Slip Op 50288(U)
The liability insurer's intentional-act exclusion did not bar coverage for unintended injuries caused by driving over a tent. The driver did not know the injured claimant was inside and did not intend to injure the claimant, although the conduct constituted depraved-indifference recklessness. Under Slayko v Security Mutual Ins. Co. and Allstate Ins. Co. v Mugavero, injury must be inherent in the act for the exclusion to apply regardless of subjective intent. The tent could have been empty or the vehicle could have missed its occupant. The Supreme Court, Schoharie County, granted the SUM insurer's declaratory judgment motion, denied the liability insurer's cross motion, and declared that the latter must defend the driver and provide liability and no-fault coverage.
Trial court, First Department
Jan 25, 2006
2006 NY Slip Op 26024
Insurer prevailed
Insurers may withhold payment of claims accruing before April 4, 2002 when the provider was fraudulently incorporated. The Supreme Court, New York County, applied 11 NYCRR 65-3.16 (a) (12) retroactively because it clarified existing law and governed all unpaid claims. Following Mallela, the court distinguished withholding reimbursement from recovering payments: corporate-licensing fraud and unjust enrichment claims could proceed only for payments made on or after the regulation's effective date. It granted renewal under CPLR 2221 (e) (2) and reinstated those claims to that extent. It also allowed additional insurers to join under CPLR 3025 (b) and 1003 and confirmed reinstatement of the unjust enrichment claim based on adequately pleaded billing fraud, including unnecessary services. The insurers' motion was granted.
Trial court, Second Department
Jan 19, 2006
2006 NY Slip Op 50278(U)
Provider prevailed
A master arbitrator's award requiring proof of medical necessity despite an untimely denial lacks a rational basis under settled law. The provider properly submitted its claim, but the insurer denied it late based on a peer review. The initial arbitrator recognized preclusion yet denied benefits for failure to prove medical necessity; the master arbitrator affirmed, relying on an informal Insurance Department opinion. Following Pradip Das, the District Court, Suffolk County, found the award irrational because it contradicted controlling precedent and the 30-day denial requirement under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). It granted article 75 vacatur and entered judgment for the provider with statutory interest and attorney fees.
Trial court, First Department
Jan 17, 2006
2006 NY Slip Op 26096
Insurer prevailed
An out-of-state insurer's partial payment of a no-fault claim does not alone establish personal jurisdiction in New York. The Supreme Court, New York County, granted the insurer's petition under CPLR 7511 (b) (1) (iii) and vacated the provider's arbitration award. The insurer lacked offices, accounts, solicitation, licensing, and policy-writing activity in New York. Partial payment did not constitute systematic business activity under CPLR 301. Insurance Law § 1213 (b) (1) (D) did not supply jurisdiction because the provider, even as assignee, was not within the protected class of residents holding policies issued or delivered in New York by unauthorized insurers. The jurisdictional challenge required no prior master arbitration appeal, and a financial connection to a licensed insurer did not alter the petitioner's corporate status.
Trial court, First Department
Jan 5, 2006
2006 NY Slip Op 52598(U)
Provider prevailed
The insurer waived its assignment defense by failing to object within 10 days to the adequacy of the provider's no-fault claim form. At trial, unsigned computer copies of the bills were excluded under CPLR 4539 (b), but the insurer's interrogatory responses established receipt of the bills and an outstanding balance. The insurer produced no witnesses, did not introduce its denial, and conceded that it had not objected to omission of the assignment. Following Laufer v Lumberman's Mutual Casualty Co., the Civil Court, Bronx County, found that the provider satisfied its prima facie burden by a preponderance of the credible evidence and directed judgment for the provider with statutory interest and attorney fees.
Trial court, Second Department
Jan 3, 2006
2006 NY Slip Op 26000
Insurer prevailed
An insurer asserting a staged collision at trial need only rebut presumed coverage; the provider retains the burden of persuasion. The Civil Court, Kings County, dismissed both complaints after a joint trial. A prima facie no-fault case creates a presumption of coverage, but the insurer may rebut it with a founded basis for believing the collision was intentional. Clear and convincing proof of fraud is unnecessary; the provider must establish coverage by a fair preponderance of credible evidence. The insurer presented credible evidence of short-lived policies surrounding collisions, minimal vehicle damage, and material inconsistencies in occupants' accounts. The provider offered no rebuttal witnesses or evidence. On the full record, the court found the collision was not a covered incident.
