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The Rogak Report: 21 Nov 2007 (Part III) ** Intoxication - Collateral Estoppel**

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  • Lawrence Rogak
    NO-FAULT ARBITRATOR S FINDING THAT CLAIMANT WAS NOT INTOXICATED IN BINDING IN UM ARBITRATION Matter of Progressive Specialty Insurance Company v. Stephens,
    Message 1 of 1 , Nov 21, 2007

      NO-FAULT ARBITRATOR'S FINDING THAT CLAIMANT WAS NOT INTOXICATED IN BINDING IN UM ARBITRATION

      Matter of Progressive Specialty Insurance Company v. Stephens,

      2007 NY Slip Op 33713(U) Supreme Court, Suffolk County (Emily Pines, j)

      This petition to stay uninsured motorist arbitration arose out of a motor vehicle accident that occurred on November 23,2006 in South, Islip, New York. The claimant filed a Demand for Arbitration with the American Arbitration Association seeking benefits as a result of a purported hit-and-run accident . Progressive thereafter commenced this proceeding to stay the arbitration on the following grounds:

      1) that the American Arbitration Association lacks jurisdiction over Petitioner's Pennsylvania policy of insurance;

      2) that Respondent was involved in a single vehicle accident and thus uninsured motorist benefits are not warranted; and

      3) that Respondent has failed to submit to an Examination Under Oath, has failed to submit to physical examinations and has failed to provide all medical authorizations.

      4) that respondent breached the insurance policy by engaging in fraudulent conduct in connection with the instant accident or claim and is not entitled to coverage or benefits under the policy. Specifically, Progressive pointed to a purported inconsistency between respondent's testimony and the statements she allegedly made at the accident scene. Claimant testified at an Examination Under Oath that she had only one glass  of herry with her grandfather at dinner. However, in the ambulance call sheet, in the ``Objective Physical Assessment" section, it states "PT ADMITTED DRINKING TWO DRINKS and Smoking POT EARLIER in the DAY".

      Progressive deposed James Hood, a volunteer with the Islip Terrace Fire Department. Hood testified that he was the individual who completed the call sheet and that he wrote the information indicated above. He stated that he got this information from Respondent, who gave this information in response to a question by someone who was in the ambulance with Respondent. Hood testified that he heard the information and wrote it down. Based upon the foregoing, Petitioner claims that Respondent made intentional misstatements of a material fact in violation of the contract of automobile insurance and the demand for arbitration should be peimanently stayed.

      With regard to the argument that it was a single vehicle accident. Petitioner refers to the police report, attached to the moving papers, which indicates that contributing factors in the accident were that the roadway was curvy, the pavement was slippery and "unsafe speed". Moreover, the report indicates that this was a single vehicle accident and a collision with a fixed object, to wit, a tree. Therefore, Petitioner argued that Respondent was not entitled to uninsured motorist benefits.

      Regarding the claim of fraudulent conduct, Respondent argued that the issue of her a1leged intoxication was already adjudicated in arbitration of Respondent's claim for no-fault benefits. The submissions reflect that Petitioner had denied no-fault benefits to respondents based upon an allegation that she was intoxicated at the time of the accident. The matter proceeded to arbitration and the arbitrator ruled in Respondent's favor. There, the arbitrator found that:  "the issue of whether she had one or two drinks does not really matter, since there were no blood tests to establish that her blood alcohol level met the standard of Section 1192 of the Vehicle and Traffic Law. As to the pot smoking issue, I accept her testimony that she did not smoke pot that day. I also find that the Respondent did not prove that the Applicant's drinking was the proximate cause of the accident. Based on all these considerations, I find that the Respondent has not met their burden of proof regarding the exchsion; therefore, the denials cannot be sustained."

      The Court held that "the doctrine of collateral estoppel applies when the issues necessarily decided in a prior action and the issues in the present action are identical, and were fully and fairly litigated. Collateral estoppel applies to arbitration awards with the same force and effect as it applies to judgments of courts. In the case at bar, the Court finds that the doctrine of collateral estoppel bars Petitioner from relitigating the issue of Respondent's drug or alcohol consumption on the date of the accident. In the arbitration proceeding regarding denial of Respondent's no-fault benefits, the issue was whether respondent was intoxicated at the time of the accident, thus warranting denial of the benefits. Here, despite Petitioner's claim that the issue is one of fraud or misrepresentation, in effect, the issue is identical to that previously litigated in the no-fault arbitration. Petitioner claims that Respondent is not entided to uninsured motorist benefits because she was intoxicated and used marijuana prior to the accident and that respondent fraudulently misrepresented this fact during her examination under oath. Although couched in terms of fraudulent misrepresentation, this issue is identical to that litigated before the arbitrator. Petitioner had the opportunity to fully and fairly litigate the issue and the issue was decided in Respondent's favor.  Thus, Petitioner is collaterally estopped from raising this issue as a ground to deny uninsured motorist benefits."

      "Petitioner's claim that Respondent is not entitled to uninsured motorist benefits because this was a single vehicle accident rnust be referred to a hearing. Here, there is a disparity between Respondent's testimony that she was struck by a hit-and-run vehicle and the police report which indicates this was a single car accident. Thus, there is a factual question as to whether there was physical contact between Respondent's vehicle and an alleged hit-and-run vehicle, requiring a hearing on this issue."

      Larry Rogak

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