Tuesday, October 28, 2008

Question of Fact Found on Whether Assignor Was a "Qualified Person" Entitled to No-Fault Benefits from MVAIC

Howard M. Rombon, Ph.D, P.C. a/a/o Francisca Ruiz-Diaz v. MVAIC

(App. Term, 2nd Dept., decided 10/27/2008)

The New York Motor Vehicle Accident Indemnification Corporation (MVAIC) was established to pay bodily injury damages and no-fault benefits to “qualified” victims of motor vehicle accidents caused by uninsured motorists.

New York Insurance Law § 5221 provides:   
No-fault" benefits to qualified persons.  (a) The terms "basic economic loss", "first party benefits", non-economic loss", "serious injury", "motor vehicle", "insurer", "uninsured motor vehicle" and "covered person", as used in this section, shall have the same meaning given them in section five thousand one hundred two of this chapter.
(b) (1) Notwithstanding the provisions of this article, the corporation shall also provide for the payment of first party benefits to a qualified person for basic economic loss arising out of the use or operation in this state of an uninsured motor vehicle.
(2) A qualified person who has complied with all the applicable requirements of this article shall be deemed to be a covered person and shall have only such rights as a covered person may have under article fifty-one of this chapter.
Insurance Law § 5202(b) defines a "qualified person", in part as, as:
(i) a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative.
In less legalistic, more straightforward terms,  MVAIC's website gives this explanation of what a "qualified person" is:
QUALIFIED PERSON is a resident of New York State or a resident of another state or country having a substantially similar program available to New York State residents injured in that state or country. A QUALIFIED PERSON is someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle. An example of a QUALIFIED PERSON is a pedestrian residing in New York State who does not own a motor vehicle and does not qualify as an insured person under any automobile liability insurance policy, who is struck by an uninsured motor vehicle in New York State.
Plaintiff medical provider brought this action to recover assigned no-fault benefits and moved for summary judgment.  Defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) cross-moved for summary judgment, arguing, that plaintiff's assignor was not a qualified person because she did not provide MVAIC with proof that she was a resident of the State of New York.  Queens Civil granted plaintiff's motion for summary judgment and denied MVAIC's cross motion. MVAIC appealed.

In REVERSING the order appealed from and denying summary judgment to plaintiff, the Appellate Term, Second Department, held:
 Pursuant to Insurance Law § 5221 (b) (2), to be "deemed a covered person" and thereby "have such rights as a covered person may have under [Insurance Law article 51]," an injured person must be a "qualified person," as that term is defined in Insurance Law § 5202 (b), and must have complied with all of the applicable requirements of Insurance Law article 52 (e.g. Insurance Law § 5208). Based upon a review of the moving and cross-moving papers, we find an issue of fact exists as to whether plaintiff's assignor is a "qualified person" and, thus, whether she is a "covered" person entitled to rights under Insurance Law article 51 (see Insurance Law § 5221 [b] [2]; Zuckerman v City of New York, 49 NY2d 557 [1980]). 
Plaintiff provider argued that MVAIC's disclaimer of no-fault benefits was untimely.  In rejecting that argument, the Appellate Term ruled:
We note that MVAIC's failure to establish that it timely denied plaintiff's claims is of no consequence since an assertion that there is a lack of coverage may always be raised (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006]), and the holding in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]) is not to the contrary.  

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