For any Defense Attorney whose practice includes first party No-Fault Claims, the words "proof of mailing" creates a pavlovian response which requires the attorney to cite a string of decisions on the topic and the latest affidavit used by their claims office to defeat the mailing challenge by the provider's attorney. (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 2007]).

Apparently the Appellate Term, First Department has seen enough of these decisions based on the comments made in the December 30, 2010 decision in Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co. 2010 NY Slip Op 20530. In pursuing the defense of failing to provide a response to a timely demand for verification, thereby rendering the claim premature (see 11 NYCRR § 65-3.5[b), the defendant Insurer called a claims examiner to testify to the mailing procedure which the appellate term found sufficient to prove the required mailing of the request for verification. "The witness's credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the work day, when it would "go out," and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), "obviated the necessity of producing a witness with personal knowledge of the actual mailing" of defendant's verification letters...Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance.

Having established its routine and reasonable office practice, defendant met its burden to establish that the verification letters were mailed to (and presumably received by) plaintiff. Plaintiff not only failed to produce any countervailing evidence to rebut the presumption of receipt, but has not at any time affirmatively denied receipt of the verification letters." No longer will a parade of mailing experts be needed, three witnesses for every piece of mail brought to the post office.
 
 
In comments more likely found on a No-Fault Blog the Court added, "Before concluding, we would be remiss in failing to note that the facts and circumstances of this action do much to illustrate the disturbing reality that first-party no-fault benefits litigation has become the antithesis of what was supposed to be an expeditious and simplified process for the payment of medical costs for injuries sustained in motor vehicle accidents (see Walton v Lumbermans Mutual, 88 NY2d 211, 214 [1996]).

Too often, lawsuits with a value akin to a small claims action become bogged down by an insistence by one party or another that mailing of routine forms be established with scientific precision, asking judges, already burdened to the breaking point with the veritable legion of no-fault cases overflowing from our court dockets (while very able arbitrators remain underutilized), to require multiple witnesses to be summoned to the courthouse, merely to establish a presumption of mailing, even in the absence of an express denial of receipt of the disputed correspondence. Unfortunately, this class of cases has spawned a body of "gotcha" jurisprudence, marked by a near manic preoccupation with form over substance.  How we have reached this sorry state is of little moment. Perhaps all branches of government need to call a "time out" and, working together, endeavor to construct a workable process to achieve what the framers of the No-Fault statute had in mind when they sought to establish a simplified and expeditious process to reimburse those of our citizenry injured in automobile accidents. For sure, the system now in place is not achieving that laudable aim."

Read full decision here.
__________________________________________________
When does a Certificate of Insurance, issued by an agent create coverage? The Second Circuit Court of Appeals has certified this Question to The New York State Court of Appeals in 10 ELLICOTT SQUARE COURT CORPORATION and 5182 GROUP, LLC, v. MOUNTAIN VALLEY INDEMNITY COMPANY, (2010 U.S. App. LEXIS 26035) decided on December 23, 2010. The Federal Circuit Court held, "New York's intermediate appellate courts are divided as to whether, despite the fact that an insurance policy's additional-insured coverage is not in effect under its express terms, a certificate of insurance issued by an agent of the insurer nonetheless may estop the insurer from denying coverage to a party identified as an additional insured on the certificate, even where the certificate contains various disclaimers, such as that it is "for informational purposes only."
 
The Question for the Court of Appeals is :
"In a case brought against an insurer in which a plaintiff seeks a declaration that it is covered under an insurance policy issued by that insurer, does a certificate of insurance issued by an agent of the insurer that states that the policy is in force but also bears language that the certificate is not evidence of coverage, is for informational purposes only, or other similar disclaimers, estop the insurer from denying coverage under the policy?"
 
The third and fourth departments are in favor of the rule creating coverage or estopping an insurer from denying coverage where a certificate of insurance has been issued. (Niagara Mohawk Power Corp. v. Skibeck Pipeline Co., 270 A.D.2d 867, 868-69, 705 N.Y.S.2d 459, 460-61 (4th Dep't 2000))

The second department does not follow this rule (Am. Ref-Fuel Co. of Hempstead v. Res. Recycling, Inc., 248 A.D.2d 420, 423-24, 671 N.Y.S.2d 93, 96 (2d Dep't 1998)) holding that an insurer could deny coverage where a party was erroneously named on a Certificate of Insurance.

The First Department also has ruled the Certificate of Insurance, for informational purposes only, is not proof of Insurance. (Moleon v. Kreisler Borg Florman Gen. Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621, 623 (1st Dep't 2003)) This case is sure to be watched closely by the Insurance bar. It certainly has the potential to change the Insurance Industry in New York and the common practice of providing a Certificate of Insurance.

________________________________________________

Justice Ute Wolff Lally was asked to decide a case fraught with emotional issues in Limmer v. Gutterman's Inc. decided on December 15, 2010 (1559/09). The pro-se plaintiff, a practicing attorney, sued Gutterman's Funeral home alleging that his mother's funeral was mishandled. Allegations against the funeral home included having the family wait behind the wrong hearse going to the cemetery which caused them to be late for the graveside service.

The plaintiff further alleged, "... despite knowing about Mr. Limmer's emotionally sensitive and physically frail state, the defendants conducted themselves in an insensitive fashion, for instance, by paying a visit to Mr. Limmer's home in an attempt to resolve the bill while he was sitting shiva; by telling him that they had been told he gets lost easily; by asking whether he takes money off his clients' bill when he is late for court; and, by threatening to file a grievance against him as a practicing lawyer during the telephone conversation of February 21, 2006. The plaintiffs allege that telephone conversation ultimately caused Mr. Limmer to severely injure his back when after a contentious conversation with the defendant Steven Kanowitz, he sprang from his chair and turned causing lumbar injury to his back which required surgery."

The case ultimately came down to established principals of tort law: negligence, foreseeability and proximate cause. "In ascertaining whether the defendant's conduct constitutes a substantial factor in bringing about the harm of which the plaintiff complains, consideration should be given to (1) the aggregate number of factors involved which contribute towards the harm and the effect which each has in producing it, (2) whether the defendant has created a continuous force active up to the time of harm, or whether the situation was acted upon by other forces for which the defendant is not responsible, and (3) the lapse of time. " Ultimately the Court found, "The risks of the contentious volatile telephone conversation between the plaintiff Mr. Limmer and the defendant Steven Kanowitz on February 21, 2006 - particularly physical harm - was minimal and unforeseeable as a matter of law. The plaintiff's back injury was not proximately caused by the telephone conversation but rather by a sequence of events that could not reasonably have been foreseen or protected against by the defendants." This was obviously a difficult time for the plaintiffs, perhaps the lawsuit was not the best way to handle the matter.