Tuesday, March 31, 2009

Evidence Insufficient to Establish a Founded Belief of a Staged Incident

Vista Surgical Supplies, Inc. a/a/o Jesus Rodriguez v. Utica Mut. Ins. Co.

(App. Term, 2nd Dept., decided 3/17/2009)

In AFFIRMING Kings Civil's award of summary judgment to plaintiff for $612.69, the Appellate Term concluded that the affidavit submitted by Utica Mutual's investigator, the testimony given by plaintiff's assignor and the driver during their examinations under oath, and the unsworn statement of the adverse driver submitted by Utica Mutual in opposition to plaintiff's summary judgment motion were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident. 

The court also rejected Utica Mutual's argument that the assignor had failed to provide his personal income tax returns to substantiate his lost wages claim and thus failed to comply with a condition precedent to coverage: 
 We need not determine whether plaintiff's assignor failed to comply with a condition precedent since, in light of the "confidential and private nature" of an individual's income tax returns (see Walter Karl, Inc. v Wood, 161 AD2d 704 [1990]), which contain information far broader than that sought by defendant, defendant failed to make a sufficient showing of special circumstances to warrant their production (see Dore v Allstate Indem. Co., 264 AD2d 804 [1999]), especially given the fact that the information sought could have been obtained through other, more focused, means. 
Maybe someone from Utica Mutual can enlighten us on how the assignor's personal income tax returns were relevant to the assignee's claim.  And what were the "other, more focused, means" available to Utica Mutual to obtain the income tax information?  

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