New York Insurance Coverage Law Update

May 1, 2011 | Insurance Coverage

Assignor’s Failure To Appear At IME Dooms Provider’s Claim For No-Fault Benefits

A health care provider that had been assigned first-party no-fault benefits sued the insurance company for payment. The insurer moved for summary judgment, asserting that the provider’s assignor had failed to appear for an independent medical examination (“IME”). The court explained that although Insurance Department regulations stated that a no-fault insurer had to base its request for an examination under oath upon “the application of objective standards . . . supporting the use of such examination,” the regulations did not impose that standard on a request for an IME. The court concluded that because the appearance of the assignor at an IME was a condition precedent to the insurer’s liability on the policy, the insurer’s motion for summary judgment had to be granted. [All County, LLC v. Unitrin Advantage Ins. Co., 2011 N.Y. Slip Op. 50621(U) (2d Dep’t App. Term Apr. 6, 2011).]

Neither Named Insured Nor Additional Insured Entitled To Defense Or Indemnity In Suit By Subcontractor’s Employee

An insurance policy issued to AG Masonry Corp. contained an exclusion for bodily injury to any employee of any contractor hired by or for any insured arising out of and in the course of the employee’s employment for that contractor. Fabian Builders, LLC, hired AG to perform work on a construction site, and AG named Fabian as an additional insured under its policy. A subcontractor’s worker sued AG and Fabian for personal injuries he allegedly sustained while working on the project. The court found that the insurer had no obligation to defend or to indemnify AG or Fabian. It pointed out that the worker alleged that he had sustained bodily injuries in the course of his employment for an entity hired by Fabian or AG. According to the court, the “only possible interpretation” of these allegations was that the worker’s claims fell “wholly within the employee exclusion.” [Campoverde v. Fabian Bldrs., LLC, 2011 N.Y. Slip Op. 03536 (App. Div. 2d Dep’t Apr. 26, 2011).]

Tarp Was Not “Roof” For Homeowner’s Policy’s “Windstorm Or Hail” Provision, Court Finds

Homeowners alleged that a rainstorm damaged their home’s contents. The court explained that the “windstorm or hail” provision of the homeowner’s policy provided that damage to personal property caused by rain was not covered unless the rain entered the home as a result of wind or hail causing an opening in the roof. Because the tarps that had been placed over the openings in the first floor ceiling during construction did not come within the definition of “roof” as used in that provision, the court rejected the homeowners’ coverage claim. [Lobell v. Graphic Arts Mut. Ins. Co., 2011 N.Y. Slip Op. 03217 (App. Div. 2d Dep’t Apr. 19, 2011).]

Insurers Need Not Cover Accident That Resulted When Passenger Steered Car

After a one-car collision, James Blazina was convicted of criminal mischief in the fourth degree for steering a car owned and driven by Megan Lindhurst when he had “no right to do so nor any reasonable ground to believe that he . . . ha[d] such right.” In the declaratory judgment action that later followed, the Appellate Division, Fourth Department, found that neither Blazina’s insurer nor Lindhurst’s insurer had to provide coverage for the collision. The court reasoned that the criminal proceeding “conclusively resolved” that Blazina had neither “reasonable belief” that he was entitled to use the vehicle, as required for coverage under Lindhurst’s policy, nor “express or implied permission” to use the vehicle, as required for coverage under Blazina’s policy. [Progressive Northeastern Ins. Co. v. Farmers New Century Ins. Co., 2011 N.Y. Slip Op. 03392 (App. Div. 4th Dep’t Apr. 29, 2011).]

No Coverage Where Insureds Failed To Submit Proof Of Loss Within 60 Days Following Demand Letter

Insureds allegedly received their insurer’s demand for proof of loss on March 6, 2009 (via regular first class mail) and on March 9, 2009 (via certified mail). They submitted proof of loss to the insurer on May 8, 2009 – more than 60 days from their alleged receipt of the first letter but fewer than 60 days from their admitted receipt of the second letter. The court denied the insureds’ motion to dismiss because a 60-day proof of loss period in a policy “should be measured from the date the insured first receives the demand letter.” The court also rejected the insureds’ contention that any delay was de minimis and excusable, concluding that their failure to comply with the demand for proof of loss within 60 days was “an absolute defense to an action on the policy.” [Stopani v. Allegany Co-op Ins. Co., 2011 N.Y. Slip Op. 02588 (4th Dep’t Apr. 1, 2011).]

 Reprinted with permission.  All rights reserved.

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