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The Rogak Report: 30 May 2008 (Part III) ** No Fault - Intoxication **

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  • insurancelawyer
    PROOF OF DRIVER S INTOXICATION INSUFFICIENT FOR SUMMARY JUDGMENT IN NO-FAULT SUIT; PROXIMATE CAUSE OF CRASH IS AN ISSUE OF FACT FOR TRIAL Westchester Med. Ctr.
    Message 1 of 1 , May 30, 2008
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      PROOF OF DRIVER'S INTOXICATION INSUFFICIENT FOR SUMMARY JUDGMENT IN NO-FAULT SUIT; PROXIMATE CAUSE OF CRASH IS AN ISSUE OF FACT FOR TRIAL

       

      Westchester Med. Ctr. a/a/o Michael Forthmuller v. Progressive Cas. Ins. Co.
      2008 NY Slip Op 04867
      Decided on May 27, 2008
      Appellate Division, Second Department
      Edited by Lawrence N. Rogak


      In this no-fault suit,  the plaintiff appealed from an order of the Supreme Court, Nassau County (Galasso, J.), which denied its motion for summary judgment, and conditionally granted the defendant's cross motion for summary judgment dismissing the first cause of action..

      On March 24, 2006, Michael Forthmuller was seriously injured when he lost control of his vehicle and crashed into a telephone pole. Immediately after the accident, Forthmuller was transported to Sound Shore Medical Center, where he underwent emergency surgery. Forthmuller was then transferred to the plaintiff hospital, where he remained hospitalized for approximately one month.

      On or about May 4, 2006, the plaintiff, as Forthmuller's assignor, sent the defendant a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. The defendant received the hospital facility form on May 8, 2006. Three days later, on May 11, 2006, the defendant sent the plaintiff a letter indicating that benefits remained delayed pending receipt of Forthmuller's medical records, which had been previously requested. The defendant alleges that after it received the plaintiff's medical records on May 15, 2006, it learned that Forthmuller had first been treated after the accident at Sound Shore. Accordingly, on May 20, 2006, the defendant sent Sound Shore a verification request seeking its medical records pertaining to Forthmuller's treatment, including any blood alcohol serum toxicology test results. The defendant received Sound Shore's medical records on June 29, 2006, and on July 12, 2006, it denied the plaintiff's claim upon the ground that Forthmuller was driving while intoxicated at the time of the accident.

      Prior to receiving the defendant's denial of the claim, the plaintiff commenced this action seeking to recover payment for the medical services provided to Forthmuller. The plaintiff thereafter moved for summary judgment, contending that no-fault benefits were overdue because the defendant had failed to either pay or deny its claim within 30 days.  The defendant cross-moved for summary judgment, arguing that the 30-day period in which to pay or deny the claim was not triggered until it received the Sound Shore records it had requested as verification. The defendant also relied upon laboratory results contained in an uncertified copy of Sound Shore's medical records as proof that Forthmuller was legally intoxicated at the time of the accident. The Supreme Court denied the plaintiff's motion for summary judgment, and conditionally granted the hospital's cross motion pending receipt of 'a certified toxicology report from Sound Shore.'"

      The Appellate Division held, "When a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law ยง 5103(b)(2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim.   In this regard, 11 NYCRR 65-3.8(g) provides that if an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, the insurer shall be entitled to all available information relating to the applicant's condition at the time of the accident.  This provision also states that proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished by the insurer. Furthermore, pursuant to 11 NYCRR 65-3.5(c), the insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested."

      "Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its first cause of action by submitting, inter alia, the requisite no-fault billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to either pay the bill or issue a timely denial of claim form.  In opposition to the motion, however, the defendant raised a triable issue of fact as to whether it timely denied the claim by submitting evidence that a verification request seeking information regarding Forthmuller's alleged intoxication was timely and properly sent to Sound Shore."

      "In addition, the defendant also raised a triable issue of fact as to whether Forthmuller was intoxicated at the time of the accident and whether his intoxication caused the accident by submission of the Sound Shore laboratory results and a police accident report. Although the South Shore records were not in admissible form because they were not certified (see CPLR 4518[c]) under the circumstances of this case, the Supreme Court properly considered this evidence in conjunction with the police accident report describing the circumstances of the accident, in opposition to the plaintiff's motion. In addition, the police accident report describing the circumstances of the accident was properly considered to the extent that it was based upon the personal observations of the police officer present at the scene and who was under a business duty to make it."

      "However, the Supreme Court should not have conditionally granted the defendant's cross motion pending receipt of a certified toxicology report from South Shore. A blood alcohol test result, as set forth in a certified hospital record, constitutes prima facie evidence of the test result pursuant to CPLR 4518(c).   Thus, the blood alcohol test results contained in a certified hospital record from Sound Shore would be sufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident.  However, since the defendant also failed to make out a prima facie showing that Forthmuller's alleged intoxication was the proximate cause of the accident, its cross motion should have been denied regardless of the sufficiency of the plaintiff's opposition papers."

      Comment:  Once again, we have a driver in a one-car collision with a fixed object, proven to be intoxicated at the time of the accident, and yet the no-fault insurer cannot get summary judgment because it needs to prove that the intoxication was the proximate cause of the accident.   Thus, a trial will be required on the question of the proximate cause of the accident, and exactly what the burden of proof would be at such a trial, is left for us to ponder. 

      Larry Rogak

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