To me, this is the ultimate fight. The accident occurred in New York and putting aside whether the deemer applies, you cannot drag the carrier into a NY Court.
“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. In several affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant. Plaintiff opposed the motion with an affirmation by its counsel, who made unsupported assertions that defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant appeals from an order of the Civil Court entered August 11, 2016 denying defendant’s motion to dismiss the complaint.
I hate ending a post with a categorical statement that does not complete the story. Assume Plaintiff filed an arbitration?
I guess Oleg should put on his Arbitration hat and leave Room 809 in Civil Court, Kings County for this one.
The Court’s abdication of the ability to review administrative awards that are inherently questionable but not “off the charts wrong” is improper. We have three levels here. The first is that the award has support. The second is the award smells bad. The third is the award is “off the charts wrong”.
We all agree the Courts have no business addressing level 1 and must address level 3. It is level 2 that forms the basis of so many appeals. I only suggest that a deeper look at level 2 cases is warranted. The dissent (I did not publish it) did just that.
In my other life, I represent all sorts of people who have been wronged. One of the worst things I encounter when advocating for people who have had their insurance coverage wrongfully disclaimed is the arbitration clause. Imagine having to travel to California to file an arbitration when an insurance carrier abandons you prior to trial in NY because you allegedly violated a condition of the medical malpractice policy? It is reality, and the FAA will not protect you.
This case involves arbitration under Article 75 and a more reasonable standard in deciding whether the arbitration clause may be bypassed. This is a good case – although it has so little to do with no-fault here in NY. But, it is interesting.
(3) The arbitrator, in a decision published on September 10, 2013, noted that Geico had not submitted a declarations page from the policy to confirm the policy limits, and awarded Nationwide the total sum of $22,337.28 ($21,837.28 plus a $500 deductible).
(4) Nationwide sought the remainder, which was granted. Geico objected but lost.
The lesson – reject voluntary arbitration when you sense the policy limits are going to be exceeded.
For all that has been written in assigned first-party litigation, there has been an equal dearth of writing on loss transfer issues. There are plenty of loss transfer cases; just very few of them make it passed Arb forums.
This case was interesting because it involved a loss transfer case brought due to the cv vehicle being insured a passenger policy of insurance yet being used as livery vehicle. While the cv insurance vehicle carrier had the right to disclaim, I am left to assume that knowledge of the true use of the vehicle came after payments were made or denials issued on grounds other than fraudulent procurement. Like many things in life, this leads the carriers into the murky area of intercompany arbitration.
CV insurance carrier notwithstanding insuring vehicle as a passenger vehicle filed (it appears) a demand for loss tranfer on the grounds that it was a for hire vehicle. Without reading the record and looking at the decision from the Court, the Adverse vehicle argued that CV vehicle was a passenger vehicle and had no right to engage in inter-company arbitration. DTG struck out at arb forums, Supreme Court and now at the Appellate Division.
I read through this case. The carrier left out page two of one of the letters (that contain the reimbursement language) and, after the arbitration, sought to include it in its Petition to set aside the arbitration award. The Supreme Court was not impressed and neither was the Appellate Division. But had Unitrin (or counsel) not committed as many errors, the rocket docket rule appeared to be malleable upon a finding of law office failure. I am looking to see how this concept plays out in future cases.
Unfortunately for the provider, AAMG limits reimbursement to $70 an hour.