Supreme Court, Appellate Term, 2nd, 11th and 13th Judicial Districts. V.S. MEDICAL SERVICES, P.C. a/a/o Carlos Gaviria, Appellant, v. ALLSTATE INSURANCE CO., Respondent.  No. 2008-571KC.
 
What Constitutes an "Accident"; and what is Effect on Coverage of Intentional, Willful, Wanton, or Reckless Acts is a constant source of research and activity for Insurance defense Practitioners. V.S. Medical Services, P.C. a/a/o Carlos Gaviria v. Allstate Insurance Company (--- N.Y.S.2d ----, 2009 WL 2177520 (N.Y.Sup.App.Term), 2009 N.Y. Slip Op. 29310 ) decided by the Appellate Term, 2nd, 11th and 13th Judicial Districts on July 20, 2009 reviewed the decision of J. Arlen Bluth who dismissed this claim on January 3, 2006 after a non-jury trial. Judge Bluth had found Allstate was entitled to a dismissal as they had shown by a preponderance of the evidence that the the injuries were not sustained in a covered accident. On appeal, the provider argued that Allstate had to prove, by clear and convincing evidence, rather than by a mere preponderance of the evidence, that the alleged injuries were the result of an insurance fraud scheme. Citing the appellate precedents of Fair Price Med. Supply Corp. v. Travelers Indem. Co. (42 AD3d 277, 284 [2007], affd 10 NY3d 556 [2008] ), and State Farm Mut. Auto. Ins. Co. v. Laguerre (305 A.D.2d 490, 491 [2003] ), Judges Weston, Rios and Steinhardt indicated "...a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an accident covered by the subject insurance policy"

 

The important pronouncement here was the burden of proof with the Court holding the "preponderance of the evidence" is the standard and not, as the provider argued, "clear and convincing evidence". For those not accustomed to evidentiary battles, this distinction may seem like "splitting hairs"; for those veterans of the coverage wars, this is an important pronouncement.