Posts

Fraudulent Procurement Defense Looks More Like a 3105 Defense

  Compas Med., P.C. v Praetorian Ins. Co. , 2016 NY Slip Op 51000(U)(App. Term 2d Dept. 2016) “Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material ( see Interboro Ins. Co. v Fatmir , 89 AD3d 993  [2011]). For the foregoing reasons, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied.” The citing of Fatmir now opens up a new door regarding the evidence necessary to substantiate “material misrepresentations” in establishing a fraudulent procurement defense. “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented ( see  Insurance Law § 3105 [b];  Novick v Middlesex Mut. Assur. Co. , 84 AD3d at 1330;  Varshavskaya v Metropolitan Life Ins. Co. , 68 AD3d at 856). “To establish materiality as a matter of law, the insurer  must present documenta
Post a Comment
Read more

Georgia Law and New York law on material misrepresentations

Image
  JCC Med., P.C. v Infinity Group , 2016 NY Slip Op 26439 (App. Term 2d Dept. 2016) (1) It is uncontroverted that defendant had issued a Georgia automobile  insurance policy to the brother of plaintiff’s assignor, “effective from August 28, 2010 through August 28, 2011,” who had made various representations to defendant in his insurance application, including that he resided in Georgia, that the insured vehicle was garaged in Georgia, and that the assignor was an adult who resided in his Georgia household and also drove the insured vehicle. (2) “ Upon a review of the record, we find that defendant failed to show that there is a conflict between the laws of Georgia and New York with respect to the retroactive rescission of an automobile insurance policy which has been issued to a natural person for a private passenger vehicle, as both states prohibit the retroactive rescission of such a policy  ( see  Vehicle and Traffic Law § 313;  Matter of Government Empls. Ins. Co. v Nichols , 8 AD3
Post a Comment
Read more

Quirky Workers Compensation case - WeSueThem

  “A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]).   We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33).   Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits ( see A. B. Med. Servs., PLLC v American Tr. Ins. Co. , 34 Misc 3d 141 [A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).” Assume a decision comes out from the court stating that the EIP must make a prompt application to the board, the EIP does this and has the claim is denied due to failing to comply with WCL 2
Post a Comment
Read more

Punitive Damages in Medical Malpractice Case

  “On consideration of the above authority, we now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct. Thus, the Supreme Court did not err in submitting the issue of punitive damages to the jury.” Good public policy.
Post a Comment
Read more

Florida No-Fault May Be Dead - WeSueThem

  Something very interesting happened last week in the Sunshine State. A comprehensive bill i) Mandating BI coverage for the first time in state history; ii) Legislatively approving Florida’s crazy bad-faith case law; and iii) Eliminating PIP passed both houses. Where do I stand? I do both Plaintiff and Defense PIP in FLA, so I am saddened that my $3000 attorney fee and cost settlements may end. I also think the new bad faith statute will trip up insurance carriers more than the Harvey v. Geico standard. Also, eliminating threshold will lead to larger verdicts and more reversals where the jury find for Plaintiff on LOP medical bills but denies compensation for pain and suffering. The PIP system is quite broken here, only beat out by the roofing cases and the out of control litigation on those matters. Yet, the way people drive in Florida, PIP is a very helpful coverage. There was a compromise bill that I thought would pass – it would replace PIP with $5,000 in mandatory Medpay coverag
Post a Comment
Read more

“Equitable Estoppel” – Domotor light

  Florida’s version of American Transit Ins. Co., United Auto Ins. Co, disclaimed benefits on the basis of a purported material misrepresentation that was made on the insurance application. United later realized there was no material misrepresentation and they were mistaken. Medical provider sends bills United Auto Ins. Co well after the 35-day period under FSA 627.736(5)(c) to submit the bills. United Auto denies on this ground. Provider brings a lawsuit stating that the insurance carrier is “equittably esopped” from disclaiming coverage based upon the prior disclaimer. Presuit demand was made; the carrier did not pay. A lawsuit was commenced in Miami-Dade County Court. The parties agreed that necessity, relatedness and reasonableness were not issues. The parties made dueling summary judgment motions. The County Court sustained the defense of equittable estoppel United appealed and the 3d DCA affirned in a written opinion. “Through no fault of his own, Akins was advised by United Auto
Post a Comment
Read more

Monies paid for fraudulently procured services or supplies may be recovered under limited circumstances

  In a case with major implications, the Appellate Term for the 9th and 10th Judicial Districts reached a key compromise behind the dicta found at the Appellate Term’s holding in Fair Price v. Travelers (a precluded defense based upon fraud and unjust enrichment may be recouped in a civil action) and one of the many holdings in Cornell Medical v. Mercury (counterclaims or civil actions for paid-out monies are not permitted when the defense to the paid-out monies has been precluded). Namely, a counterclaim or civil action is permitted where the payments to the alleged fraudulent claims are made within 30-days of receipt of the bills.  To quote the court: If an insurer is precluded from asserting a defense due to its failure to pay or deny a claim within the 30-day claim determination period, it may not later seek to recover amounts it paid on the claim based on a theory of unjust enrichment ( see e.g. Cornell Med., P.C. v Mercury Cas. Co. , 24 Misc 3d 58  [App Term, 2d, 11th & 13th
Post a Comment
Read more