Policy Endorsements

Matter of Government Employees Ins. Co. v Brunner, 2010 NY Slip Op 00512 (App. Div., 2nd, 2010)
The Supreme Court properly concluded that the petitioner failed to meet its burden of proving that an insurance policy endorsement dated October 21, 2005, which purportedly reduced the limits applicable to the uninsured/underinsured motorist endorsement of the relevant policy to the sums of $25,000 per person and $50,000 per accident, was properly mailed to the policy holder prior to the date of the subject accident. The underwriter who testified at the hearing failed to offer “evidence of an office [procedure] geared to insure the likelihood that [the endorsements are] always properly addressed and mailed” (Federal Ins. Co. v Kimbrough, 116 AD2d 692, 692; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; Matter of Transcontinental Ins. Co. v Gibbs, 34 AD3d 488; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; Lumbermens Mut. Cas. Co. v Gamble, 250 AD2d 540; Matter of Allstate Ins. Co. v Ramirez, 208 AD2d 828, 830; Sea Ins. Co. v Kopsky, 137 AD2d 804; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238; cf. Kaufmann v Leatherstocking Coop. Ins. Co., 52 AD3d 1010, 1012; Morales v Yaghoobian, 13 AD3d 424, 425; Matter of Metlife Auto & Home v Pennella, 10 AD3d 726).

Compare with Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129(A) (App. Term, 2nd, 2008):

Since an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; see S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004], supra) and defendant need not prove that the instant automobile insurance policy contained such Endorsement.

and with Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 (App. Term, 2nd, 2008):

A review of the record indicates that defendant demonstrated that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification (cf. Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

and with SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139(A) (App. Term, 1st, 2005):

Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

4 Responses to Policy Endorsements
  1. Anonymously Jaded
    January 24, 2010 | 12:25 am

    Dave, you are grasping at straws with this argument you and some others keep trying to develop that the insurance carrier in order to rely on an euo no show or 45 day defense must demonstrate the endorsement in effect at the time of the loss contained language consistent with the new regulations. The Geico case you cite dealt with someone who apparently got rid of his SUM endorsement and chose to have in its place state minimum UM. The new regulation PIP endorsement must be written into every policy. SUM is optional. Since there was a bona fide dispute as to whether the SUM was still in effect, the Geico case is clearly different than the no-fault cases you cite.

    A closer parallel I think would be the case where there is a question of fact as to whether there was APIP in effect as opposed to basic PIP in relation to the weekly wage benefit amount available or the total coverage amount that is available.

    I think where your argument wins is with some of the optional exclusions – the ones that are bracketed in 65-1.1 as “optional” even though every insurance carrier I know includes includes those exceptions in the PIP endorsement. For instance, the carrier who relies on an intoxication defense to deny no-fault benefits must attach the PIP endorsement listing the inclusion of the intoxication exclusion in the policy in order to prevail on it.

  2. David M. Gottlieb
    January 24, 2010 | 12:41 pm

    You’re giving me too much credit here. I’m not making an argument; only saying that it might be worthwhile to compare the decisions. Everyone can come to whatever conclusions they want.

    It’s been a slow week, blog-wise. And I’m sick of posting the same old decisions. At least in this post, the idea is mildly interesting.

  3. zuppa's pit
    January 24, 2010 | 11:38 pm

    A.J. there are a lot of musts in this world. SIU must be properly qualified — I can prove they are often not. No one of authority seems to care. The NICB has to be licensed. Ditto. Why do we have these regulations and the latter case an actual law? So that I can try and have them enforced and have all the small minds laugh at me when I fail because of the split infinitive “To Boldy Go Where No Man Has Gone Before” (Oh but now we’re bumping into each other in cases where there will be trials — and they are not laughing anymore –those string citing mavens of the 25k policies)

    I like everyone else have unflagged case law that says you must provide the policy with the “new” endorsement or you cannot successfully claim an EUO no show. So the argument has citiations attached.

  4. Zuppa's Pit
    January 26, 2010 | 6:25 pm

    David. An important series of posts at Zuppa’s Pit. The Article 78 versus the Attorney General seeking to force the A.G. to prosecute the NICB. In addition Zuppa announces that he is running for Attorney General on an anti government corruption/anti corporate influence platform. Investigations of all involved.

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