This morning brings us the Appellate Division's decision in Westchester Med. Ctr. v. Hartford Cas. Ins. Co., 2009 NY Slip Op 00528 (App. Div., 2d Dep't, 2009).
There is nothing groundbreaking here, although it does potentially add to the insurance carriers' roster of what counts as a "reasonable excuse" for the purposes of vacating a default. Here, Hartford's "employee reasonably believed that the action had been discontinued after she advised the plaintiff's counsel's office that no-fault benefits had been exhausted, thereby demonstrating a reasonable excuse for the short period of time in which they failed either to appear or to answer the complaint." Id.
I'm not exactly sure how one could reasonably believe an action was discontinued based upon merely communicating a defense to plaintiff's counsel, especially where there does not seem to have been a stipulation of discontinuance ever executed, or even an overt communication by plaintiff's counsel that one would be forthcoming. This seems to me to fall somewhere short of being "reasonable." In any event, the vacatur of the default might still be proper, given the apparent "short" delay and, perhaps more importantly, the issue of policy exhaustion.
Footnote: after having vacated the default, the Supreme Court ordered that the matter be transferred to the District Court ("325(d)-ing" the case, in the parlance), as the damages failed to meet the minimum required for Supreme Court jurisdiction.
Friday, January 30, 2009
Thursday, January 29, 2009
Fraud in the Procurement
Today, we turn to a fundamental aspect of New York's insurance laws. The basic question is: can an insurance carrier cancel a New York automobile insurance policy retroactively? The basic answer is: no. As we'll see, the legal acrobatics involved in getting to that answer have an important impact on no-fault litigation.
Vehicle and Traffic Law ("VTL") § 313(1)(a) provides that "[n]o contract of insurance…shall be terminated by cancellation by the insurer until at least twenty days after mailing to the named insured at the address shown on the policy a notice of termination..."
Thus, "[i]t has long been recognized that this provision supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively." Liberty Mut. Ins. Co. v. McClellan, 127 A.D.2d 767, 769 (2d Dep’t, 1987). See also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc.3d 8 (App. Term, 2d Dep’t, 2006).
Even where there is an allegation that fraud was committed in the procurement of the insurance policy, "Vehicle and Traffic Law § 313 places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence." Insurance Co. of North America v. Kaplun, 274 A.D.2d 293, 298 (2d Dep’t, 2000). Thus, where a carrier has failed to properly cancel an insurance policy in accordance with VTL § 313 prior to an accident, the carrier "is responsible to any innocent third parties injured in the accident, despite the proof adduced...that [the insured] obtained the policy by misrepresentations." Id.
Nevertheless, "[w]hen the insured brings an action to recover benefits under a policy, the insurance carrier may assert as an affirmative defense that the insured's misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured." Id. at 298-299.
In no-fault matters, medical providers who treat patients through an assignment of benefits do not qualify as "innocent third parties" for this purpose. See A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., supra.
However, in order to assert such a defense in a no-fault matter, the carrier must present "evidence that plaintiffs' assignors participated in the fraudulent scheme." D.A.V. Chiropractic, P.C. v. GEICO Indem. Co., 21 Misc.3d 138(A) (App. Term, 2d Dep’t, 2008). Where the carrier fails to demonstrate that the assignor was a party to the fraudulent procurement, the carrier fails to even create a triable issue of fact sufficient to defeat a provider’s motion for summary judgment, no less satisfy the burden for the carrier’s own motion for summary judgment. Id.
For the purposes of typical no-fault litigation, either on a motion or at trial, the core issue of this defense will be whether the carrier has submitted sufficient admissible evidence to demonstrate that the assignor was a party to a scheme to fraudulently procure an insurance policy. The procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued.
Vehicle and Traffic Law ("VTL") § 313(1)(a) provides that "[n]o contract of insurance…shall be terminated by cancellation by the insurer until at least twenty days after mailing to the named insured at the address shown on the policy a notice of termination..."
Thus, "[i]t has long been recognized that this provision supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively." Liberty Mut. Ins. Co. v. McClellan, 127 A.D.2d 767, 769 (2d Dep’t, 1987). See also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc.3d 8 (App. Term, 2d Dep’t, 2006).
Even where there is an allegation that fraud was committed in the procurement of the insurance policy, "Vehicle and Traffic Law § 313 places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence." Insurance Co. of North America v. Kaplun, 274 A.D.2d 293, 298 (2d Dep’t, 2000). Thus, where a carrier has failed to properly cancel an insurance policy in accordance with VTL § 313 prior to an accident, the carrier "is responsible to any innocent third parties injured in the accident, despite the proof adduced...that [the insured] obtained the policy by misrepresentations." Id.
Nevertheless, "[w]hen the insured brings an action to recover benefits under a policy, the insurance carrier may assert as an affirmative defense that the insured's misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured." Id. at 298-299.
In no-fault matters, medical providers who treat patients through an assignment of benefits do not qualify as "innocent third parties" for this purpose. See A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., supra.
However, in order to assert such a defense in a no-fault matter, the carrier must present "evidence that plaintiffs' assignors participated in the fraudulent scheme." D.A.V. Chiropractic, P.C. v. GEICO Indem. Co., 21 Misc.3d 138(A) (App. Term, 2d Dep’t, 2008). Where the carrier fails to demonstrate that the assignor was a party to the fraudulent procurement, the carrier fails to even create a triable issue of fact sufficient to defeat a provider’s motion for summary judgment, no less satisfy the burden for the carrier’s own motion for summary judgment. Id.
For the purposes of typical no-fault litigation, either on a motion or at trial, the core issue of this defense will be whether the carrier has submitted sufficient admissible evidence to demonstrate that the assignor was a party to a scheme to fraudulently procure an insurance policy. The procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued.
Tuesday, December 23, 2008
Happy Holidays
Thanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.
Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...
Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...
Friday, December 19, 2008
Appealing, to Infinity and Beyond
Earlier this week, the Appellate Division, 2d Department, granted defendant's leave to appeal from the decision of the Appellate Term in Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term, 2d Dep't, 2008).
You'll recall that this decision involved, inter alia, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."
Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in Infinity Health Prods. found that the Am. Transit decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."
Justice Golia, ever a contrarian, dissented in Infinity Health Prods. and opined that in Am. Transit, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.
I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."
The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have ever, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his Infinity Health Prods. dissent that the issue was never raised by the parties in Am. Transit. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue sua sponte, and so it is no surprise that they didn't.
In short, the effect of early follow-up verification requests was never litigated in New York & Presbyterian Hosp. v. American Transit Ins. Co. The Appellate Term was thus not bound by this "precedent" in deciding Infinity Health Prods., and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the Am. Transit is binding, but this is entirely illusory.
There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.
Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.
--
P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.
You'll recall that this decision involved, inter alia, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."
Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in Infinity Health Prods. found that the Am. Transit decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."
Justice Golia, ever a contrarian, dissented in Infinity Health Prods. and opined that in Am. Transit, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.
I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."
The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have ever, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his Infinity Health Prods. dissent that the issue was never raised by the parties in Am. Transit. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue sua sponte, and so it is no surprise that they didn't.
In short, the effect of early follow-up verification requests was never litigated in New York & Presbyterian Hosp. v. American Transit Ins. Co. The Appellate Term was thus not bound by this "precedent" in deciding Infinity Health Prods., and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the Am. Transit is binding, but this is entirely illusory.
There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.
Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.
--
P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.
Tuesday, July 01, 2008
An Appeal of Interest
This morning, the Court of Appeals has granted State Farm leave to appeal the decision of the Appellate Division, Third Department in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 A.D.3d 1290 (3d Dep't, 2007).
Tuesday, November 20, 2007
The Highest Court
Where a carrier fails to timely request verification of an assignment of benefits, that carrier is precluded from contesting the validity of the assignment. Even when the assignment lacks the signature of the assignor. So sayeth the Court of Appeals today in Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 2007 NY Slip Op 09067 (Ct. of App., 2007). While The Hon. Eugene F. Pigott, Jr. offers a dissent, six other Judges on the Court side with the majority opinion. The opinions serve as a concise primer on both sides of the issue.
This is, to be sure, a rather extreme result of the line of thinking originally set down by the Court of Appeals in Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997). Nevertheless, the Court has obviously looked into the abyss of the last 10 years and still hasn't blinked.
This is, to be sure, a rather extreme result of the line of thinking originally set down by the Court of Appeals in Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997). Nevertheless, the Court has obviously looked into the abyss of the last 10 years and still hasn't blinked.
Friday, November 16, 2007
D'oh-shi
On March 16, 2007, the Appellate Term, 2d Department issued its decision in Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc.3d 42 (App. Term, 2d Dep't, 2007). In sum, the Court held that, where timely claim verification requests are made to a third party, and such verification is never supplied, a provider's suit for reimbursement of such a claim remains premature.
On August 21, 2007, the App. Term denied Doshi Diagnostic's application for leave to appeal to the Appellate Division. See Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co., 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007).
Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. See Doshi Diagnostic Imaging Services v State Farm Insurance, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007).
D'oh!
In other news, the App. Div., 2d Dep't also recently issued its decision in Westchester Med. Ctr. v Countrywide Ins. Co., 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007). The decision reads as a basic cut-and-paste of various other App. Div. no-fault decisions, containing standard holdings regarding the sufficiency of proof of mailing and waiver of defenses related to assignments of benefits. In the typical fashion of no-fault appellate decisions, without the benefit of seeing the record on appeal, the holding is rather worthless in a vacuum.
On August 21, 2007, the App. Term denied Doshi Diagnostic's application for leave to appeal to the Appellate Division. See Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co., 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007).
Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. See Doshi Diagnostic Imaging Services v State Farm Insurance, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007).
D'oh!
In other news, the App. Div., 2d Dep't also recently issued its decision in Westchester Med. Ctr. v Countrywide Ins. Co., 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007). The decision reads as a basic cut-and-paste of various other App. Div. no-fault decisions, containing standard holdings regarding the sufficiency of proof of mailing and waiver of defenses related to assignments of benefits. In the typical fashion of no-fault appellate decisions, without the benefit of seeing the record on appeal, the holding is rather worthless in a vacuum.
Friday, November 09, 2007
Edwards Nofaulthands
New York City Civil Court, Kings County Judge, the Honorable Genine D. Edwards, has had two no-fault trial decisions from this week picked up for publication today by the NYS Law Reporting Bureau.
All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007), which will be published in the Miscellaneous Reports, concerns EUO requests and also touches on a carrier's burden in proving a lack of medical necessity. Judge Edwards comes to the conclusion that EUO request letters must be sent out within thirty (30) days of receipt of a bill for treatment. Since it seems that the patient actually appeared for the EUO, it's a much tougher call to make than the more often litigated situation of an EUO no-show where non-compliance vitiates coverage.
Delta Diagnostic Radiology, P.C. v MVAIC, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007), which will not be published in the Miscellaneous Reports, concerns the situation where a carrier issues a proper denial based on a provider's failure to submit a timely claim, containing the requisite language informing the provider that the untimeliness will be excused for reasonable justification, but the provider never actually bothers to submit such information. It appears that the Plaintiff did attempt to submit written justification one month prior to trial, but presumably this would not avoid the conclusion that the Complaint itself remains premature.
FWIW, now might be as good a time as any to mention that I began operations of Law Offices of Damin J. Toell, P.C. a few months ago. For the most part, I'm currently handling no-fault cases on behalf of providers. The business contact info is as follows:
Law Offices of Damin J. Toell, P.C.
P.O. Box 245112
Brooklyn, New York 11224
516-204-4775 (phone)
516-394-0855 (fax)
Business-related email should be directed to: djtoellpc @ gmail . com
Have a good weekend, all.
All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007), which will be published in the Miscellaneous Reports, concerns EUO requests and also touches on a carrier's burden in proving a lack of medical necessity. Judge Edwards comes to the conclusion that EUO request letters must be sent out within thirty (30) days of receipt of a bill for treatment. Since it seems that the patient actually appeared for the EUO, it's a much tougher call to make than the more often litigated situation of an EUO no-show where non-compliance vitiates coverage.
Delta Diagnostic Radiology, P.C. v MVAIC, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007), which will not be published in the Miscellaneous Reports, concerns the situation where a carrier issues a proper denial based on a provider's failure to submit a timely claim, containing the requisite language informing the provider that the untimeliness will be excused for reasonable justification, but the provider never actually bothers to submit such information. It appears that the Plaintiff did attempt to submit written justification one month prior to trial, but presumably this would not avoid the conclusion that the Complaint itself remains premature.
FWIW, now might be as good a time as any to mention that I began operations of Law Offices of Damin J. Toell, P.C. a few months ago. For the most part, I'm currently handling no-fault cases on behalf of providers. The business contact info is as follows:
Law Offices of Damin J. Toell, P.C.
P.O. Box 245112
Brooklyn, New York 11224
516-204-4775 (phone)
516-394-0855 (fax)
Business-related email should be directed to: djtoellpc @ gmail . com
Have a good weekend, all.
Tuesday, September 25, 2007
Fraudulent Fraud
At the suggestion (almost a threat, really) of David M. Gottleib, Esq., I'm reposting a comment of mine from the previous entry. An anonymous insurance defense attorney asked: "Provider fraud should NEVER be waived. When did fraud stop being fraud?" I said:
The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.
You won't find the word "fraud" anywhere in the majority or concurring opinions in Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), but only in the majority opinion, and not in the way carriers like: "The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices." New York's seminal no-fault cases don't create a solid foundation for anything that should be referred to as a "fraud defense."
Indeed, "fraud" isn't the word you want to use if you're a good insurance defense attorney. You want to say "lack of coverage." The Appellate Division, Second Department has reminded us a few times of this distinction, but it still goes basically unnoticed. Then again, "lack of coverage" isn't a catchphrase that instills fear in anyone's heart.
All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in Fair Price. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.
--
As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as Matter of Eagle Ins. Co. v. Davis, 22 A.D.3d 846 (2d Dep't, 2005). There, regarding an allegation, made as part of a petition to stay a UM arbitration, that an alleged collision was fraudulent in nature, the Court held: "When a petition raises an issue of fact as to whether the automobile collision giving rise to the underlying request for arbitration was deliberate or intentional, the issue of fraud is subsumed under the coverage issue. Evidence of such fraud should be considered in determining the broader coverage issue." Id. (internal citations omitted).
The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.
You won't find the word "fraud" anywhere in the majority or concurring opinions in Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), but only in the majority opinion, and not in the way carriers like: "The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices." New York's seminal no-fault cases don't create a solid foundation for anything that should be referred to as a "fraud defense."
Indeed, "fraud" isn't the word you want to use if you're a good insurance defense attorney. You want to say "lack of coverage." The Appellate Division, Second Department has reminded us a few times of this distinction, but it still goes basically unnoticed. Then again, "lack of coverage" isn't a catchphrase that instills fear in anyone's heart.
All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in Fair Price. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.
--
As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as Matter of Eagle Ins. Co. v. Davis, 22 A.D.3d 846 (2d Dep't, 2005). There, regarding an allegation, made as part of a petition to stay a UM arbitration, that an alleged collision was fraudulent in nature, the Court held: "When a petition raises an issue of fact as to whether the automobile collision giving rise to the underlying request for arbitration was deliberate or intentional, the issue of fraud is subsumed under the coverage issue. Evidence of such fraud should be considered in determining the broader coverage issue." Id. (internal citations omitted).
Saturday, September 22, 2007
More and More Appealing
In a move that likely fell under most radars, the Appellate Division, 2d Department has granted the defendant's motion for leave to appeal their decision in Fair Price Medical Supply Corp. v. Travelers Indem. Co., 42 A.D.3d 277 (2d Dep't, 2007) to the Court of Appeals. The App. Div. has posted the motion decision.
I have a feeling that the judges are going to get less and less sympathetic to the defendant's position the higher up the appeal goes on the food chain. Personally, I don't see the Court of Appeals reconsidering the underlying rationale of Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997), no matter how much some of us would like that to occur in light of the state of things ten years on.
I have a feeling that the judges are going to get less and less sympathetic to the defendant's position the higher up the appeal goes on the food chain. Personally, I don't see the Court of Appeals reconsidering the underlying rationale of Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997), no matter how much some of us would like that to occur in light of the state of things ten years on.
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