Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 2008 NY Slip Op 09786 (App. Div., 2nd)
The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the [*2]first cause of action regarding Logan’s claim with evidence that the claim was neither paid nor denied within 30 days of the defendant’s receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750; 11 NYCRR 65-3.8[a][1], [c]). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on Logan’s alleged intoxication at the time of the accident by issuance of a denial of coverage on that ground within 30 days of the receipt of additional verification it requested concerning the claim (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750; 11 NYCRR 65-3.5; 11 NYCRR 65-3.8[e], [g]). Thus, that branch of the plaintiff’s motion which was for summary judgment on the first cause of action should have been denied.
Westchester Medical Center v One Beacon Insurace Co., 2008 NY Slip Op 33278(U) (Sup Ct, Nassau County)
However intoxication has been held to constitute an exclusion from coverage rather than no coverage thus requiring an insurer to deny or pay the claim or make avail of the regulations which address the exclusion and extend the time within which to payor deny the claim. Presbyterian Hospital in the City of New York v. Maryland Casualty Co. 90 NY2d 274 (1997).In sum, intoxication may operate as an exclusion from coverage rather than as a non-covered event, thus requiring either timely payment or denial or in lieu thereof, timely requests for verification. A provider establishes a prima facie case for summary judgment by showing proper billing, mailing and lack of payment but an insurer may demonstrate the existence of triable factual issues by showing that it made timely requests for verification regarding alleged intoxication that were not answered. Westchester Med. v. Allstate Ins. Co. 53 Ad3d 481 (2d Dept. 2008); Westchester Med. v. State Farm Mut. Auto. 44 AD3d 750 (2d Dept. 2007).
There is no factual dispute here as to plaintiff s compliance with the request for verification as to the possible intoxication condition ofthe insured. Plaintiff does not refute defendant’ s numerous requests for toxicology results or deny its response that defendant should obtain such results from the police authorities. Thus, there is no issue of fact as plaintiffs noncompliance. See Central Suffolk Hospital v. New York Cent. Mut. Fire Ins. Co. 24 AD3d 492 (2d Dept. 2005).
In Westchester Medical Center v. Progressive Casualty Insurance Company, 43 AD2d 1039 (2d Dept. 2007), and in Central Suffolk Hasp. v. New York Cent. Mut. Fire Ins. Co. supra the court granted summary judgment in favor of a defendant against a plaintiff because there was no issue of fact as to the hospital’ s failure to provide verification as to intoxication. With respect to defendant’ s cross motion, it has not been established as a matter of law that the injured person was intoxicated and that the intoxication contributed to the injury causing accident. Defendant’s evidence is sufficient to raise questions of fact as to whether the exclusion for intoxication is applicable. Notably absent here are any specifics as to how the acident was caused by plaintiff s intoxication. See Westchester Medical Center Progressive Casualty Insurance Company, 51 AD3d 1014 (2d Dept. 2008); Lynch Progressive Ins. Co. 12 AD3d 570 (2d Dept. 2004).
[P]laintiff contends that the denial of claim is lacking in specificity, thereby rendering defendant’s ultimate denial as ineffective. See General Acc. Ins. Group v. Circucci, 46 NY2d 862 ( 1979 ); Todaro v. Geico Gen. Ins. Co. 46 AD3d 1086 (3rd Dept. 2007); Olympic Chiropractic, P. v. American Transit Ins. Co. 14 Misc 3d 129(A). (App. Term 2d and 11 th Judicial Districts 2007). The denial of claim form dated October 21, 2008 which is not attached, addressed or disputed by plaintiff, specifies by reference to regulation and the insured as to intoxication or impairment and thus provides enough detail as the reason for the denial. Plaintiff s contention that it had no way of knowing the basis for denial is based solely on a subsequent denial of claim and fails to take into account requests for verification followed by the first denial. See St. Vincent’s Hasp. Of Richmond v. Government Employees Ins. Co. 50 AD3d 1123 (2d Dept. 2008).