Westchester Medical Center v Mercury Casualty Co., 2008 NY Slip Op 31916(U) (Sup Ct, Nassau County)
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 I s condition at the time of the accident. 11 NYCRR 65. 15 (g) (7). Proof of claim shall not be complete until the information which has been requested. .. has been furnished to the insurer by the appl icant or the authorized representative. 11 11 NYCRR 65. 15 (g) (7); Westchester Medical Center v. proqressive Cas. Ins. Co. 2008 WL 880211
(N. Y . Sup. ) In order to properly and timely request such information, the insure must forward the prescribed verification forms to the parties required to complete them within 10 businessdays after receipt of the completed application (11 NYCRR 65. (d) (1)). If the insurance company fails to deny a claim within 30 days after receiving it, or’ fails to extend the time by requesting verification the insurer will be precluded from asserting the statutory exclusion defense of intoxication. Presbyterian Hospital v. Maryland Cas. Co., 90 N. 2d 274 (Ct. App., 1997). Finally, “the insurer is entitled to receive all items necessary to verify the claim directly from the parties fr. 11 NYCRR 65.15 (d) (1) .The defendant has submitted sufficient evidence to defeat the plaintiff’ summary judgment motion. The defendant submitted evidentiary proof that it timely requested additional information from the insured and the hospital to verify its claim, and that the requested information was never received despite a timely follow- request. Mercury requested additional verification from the insured on January 22, 2008, twelve days after receipt of the hospital billing claim. Moreover, an additional verification request was sent to the hospital on the same day. In light of the fact that the requested verification was not provided, the 30-day period within which the defendant was obligated to pay or deny the hospital’ claim did not begin to run, and the hospital’s cause of action was premature. Hospital for Joint Diseases v. New York Cent. Mut. Fire Ins. Co. 44 AD3d 903 Dept., 2007); New York Presbyterian Hospital v. Proqressive Casualty Ins. Co. 5 AD3d 568 Dept., 2004) .
The defendant demonstrated its entitlement to summary judgment by proving that it timely requested additional verification from the plaintiff, regarding the issue of the driver’ s alleged intoxication at the time of the accident, wi thin the requisite periods, and that such information was never received. In opposition, Westchester Medical Center failed to demonstrate the existence of a triable issue of fact. Moreover, pursuant to ~5103 (b) (2), and 11 NYCCRR ~ 65- 8. the defendant was acting within its rights to request the verification.
Regarding Westchester Medical’ claim that the additional information requested was not in its custody or control, the Court finds this argument is without merit. 11 NYCRR 65- (g) provides that proof of claim is not complete until the insurer is furnished with “all available informationl1 relating to the insured’ condition at the time of the accident. However, “available information” includes only information within the control of the health care provider or the insured, or information obtainable by those parties through reasonable effort.
Westchester Medical claims that they merely drew the plantiff’ s blood and did not actually tests it, however with reasonable efforts Westchester could have provided Mercury with the information requested as the insured’ s medical information (ie blood alcohol level) was available to the treat ing hospital. Moreover, the insured could reasonably have provided consent to release the information requested, even if in the custody and control of the police department. The insurer is entitled to receive all items necessary to verify the claim “directly from the parties from whom such verification is requested. 11 65- 5 (c) . Mercury took timely action to attain the requested information from the appropriate party. Mercury also took action to attain the information requested from the appropriate third party police department. The Court finds that the plaintiff’ failure to provide the information requested rendered the claims incomplete. Westchester Medical Center v. Proqressi ve Casualty Ins. Co. , 46 AD3d 675 Dept., 2007)
There may be some weird sentences in here; it always translates that way when I copy and paste from a PDF.