Denial of No-Fault Benefits Based on Biomechanical Injury Causation Analysis Report Upheld in AAA Arbitration & Master Arbitration

AMERICAN ARBITRATION ASSOCIATION – NO-FAULT – BIOMECHANICAL EXPERT OPINION – USE OR OPERATION – CAUSAL RELATIONSHIP – EMG/NCV TESTING 

Matter of Arbitration between Scott A. Croce, DC, PC/Erie County Chiropractic aao [Assignor] and Preferred Mut. Ins. Co.
(Arbitrator Fred Lutzen, dated 3/28/2019)
(Master Arbitrator Marilyn Felenstein, dated 7/15/2019)

Mura & Storm associate Ryan Mura was privileged to represent Preferred Mutual Insurance Company (PMIC) in this American Arbitration Association mandatory no-fault arbitration matter.

PMIC denied payment of the applicant's EMG/NCV testing billing based on the "Biomechanical Injury Causation Analysis" peer review report of expert biomechanist Dr. Jacqueline M. Lewis, Ph.D., which had concluded:

1.  On May 18, 2017, [IP/Assignor] was the driver of a 2011 Buick LaCrosse that was traveling in the Walgreens parking lot (3288 Main Street), in Buffalo, New York, when contact occurred between the rear of a 2001 Ford Focus and the front of her vehicle. 

2.  The subject incident is consistent with a Delta-V of less than 6.4 miles per hour, and more comparable to 2.5 miles per hour with an average acceleration of less than 1.7g, and more comparable to 0.65g for the subject Buick in which [IP/Assignor] was seated. 

3.  The accelerations experienced by [IP/Assignor] were within the limits of human tolerance, and were comparable to those experienced during various daily activities. 

4.  Had the subject incident been sufficient to initiate occupant motion, [IP/Assignor] would have moved primarily forward relative to the subject Buick's interior. 

5.  There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed cervical spine injuries. As such, a causal relationship between the subject incident and the claimed cervical spine injuries cannot be made. 

6.  There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed thoracic spine injury. As such, a causal relationship between the subject incident and the claimed thoracic spine injury cannot be made.  

7.  There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed lumbar spine injuries. As such, a causal relationship between the subject incident and the claimed lumbar spine injuries cannot be made.  

8.  There is no injury mechanism present in the subject incident to account for [IP/Assignor]'s claimed bilateral knee injuries. As such, a causal relationship between the subject incident and the claimed bilateral knee injuries cannot be made.

In finding that PMIC had demonstrated by a preponderance of credible evidence that the assignor's claimed injuries did not arise out of the use or operation of a motor vehicle, AAA No-Fault Arbitrator Fred Lutzen held:

I find that Respondent's expert has sufficient scientific and technical knowledge, and is competent based on her credentials and experience to provide the aforementioned opinion. The report appears to be based on sufficient facts or data, is the product of reliable principles and methods, and Dr. Smith has applied the principles and methods reliably to the facts of this case (see, FRE 702). 

The 14-page report provides an extremely detailed analysis, which includes calculating the IP/Assignor's weight, speed of the vehicle, vehicle damages, and other relevant factors. Dr. Smith concludes that the vehicle was traveling approximately 2.5 mph, and that any impact would have produced acceleration that was comparable to or less than typical activities of daily living. She concludes that the reported injuries were not caused by the accident. 

Applicant's counsel argued that the medical records and reports establish a causal connection between the disputed treatment and the accident. I have reviewed all of the evidence submitted. Without additional evidence, like the IP/Assignor's own statement adequately explaining the injury onset and causality, Dr. Smith's accepted opinion is not sufficiently rebutted.The records alone are not sufficiently persuasive to overcome the extremely detailed, comprehensive, and convincing expert opinion by Dr. Smith. 

I find that the preponderance of credible evidence presented in this case supports that the IP/Assignor's EMG/NCV testing performed on 9/7/17 was unrelated to the accident that occurred on 5/18/17, and that the purported injuries did not arise out of the use or operation of a motor vehicle.

The applicant filed for master arbitration, and AAA No-Fault Master Arbitrator Marilyn Felenstein, in AFFIRMING Arbitrator Lutzen's award, found:

Arbitrator Lutzen, in his award, explained why he reached his conclusion that the claimed injuries could not have been caused by the claimed incident. He refer to the police report and the photographs attached thereto and notes that the police report indicated “no injury reported and no visible injury seen”. He notes the facts of the accident and discusses in detail the report by Dr. Lewis. The arbitrator found Respondent’s expert to be qualified to make the analysis regarding causation and found that Applicant had failed to rebut the expert’s conclusion. 

It is clear that a lower arbitrator has the authority to assess the facts and apply the relevant case law. He had the right to determine what evidence would be considered, including the expert report submitted by Respondent. I have carefully reviewed the parties’ briefs and the record on appeal. The arbitrator’s findings were within the arbitrator’s sound discretion and rational interpretation of the evidence and I find no reversible error within my purview as a Master Arbitrator. Per 11 NYCRR 65-4.5[o][1], the arbitrator shall be the judge of the relevance and materiality of the evidence offered. It would be improper for me, as a Master Arbitrator, to conduct a de novo review of the case and I cannot substitute my interpretation or my view as the weight or credibility of the evidence over that of the lower arbitrator. 

Furthermore, considering that there is case law to support the position that New York courts have specifically held that a biomechanical engineer is qualified to give opinion testimony regarding whether the force of impact in an accident could case the alleged injuries, it cannot be said that the arbitrator’s conclusion was not rational. Plate v. Palisade Film Delivery Corp., 39 AD3d 835 (2nd Dept. 20017). The request for vacatur of the award is denied. 

You can read both awards/decisions for more details.  Any questions about this matter can be directed to Ryan Mura at ryan.mura@muralaw.com.  

Use or Operation of Bus Found to Be Proximate Cause of Passenger's Injury for New York No-Fault Purposes

NO-FAULT – USE OR OPERATION OF A MOTOR VEHICLE – COURT REVIEW OF ARBITRATION RULINGS

Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC
(1st Dept., 2/22/2018)

Passenger steps off a bus into a hole and falls, injuring herself.  No-fault compensable?  No, per the New York Court of Appeals in Cividanes v. City of New York. The bus was neither the proximate cause nor the instrumentality of the injury

Passenger with walker boards a bus after the bus driver activates the bus's lift device to assist the passenger.  When exiting, however, the bus driver neither lowers the bus nor again activates the lift device.  Passenger places her walker onto the street and falls while trying to exit the bus, injuring herself.  No-fault compensable? 

Yes, in the opinion of the no-fault arbitrator, master arbitrator, Supreme Court and Appellate Division, First Department:

Contrary to petitioner's arguments, the facts of this case are distinguishable from those in Cividanes v City of New York (20 NY3d 925 [2012]), in which the Court of Appeals found that benefits were not available under the no-fault Insurance Law because the plaintiff's injury did not arise out of the "use or operation of a motor vehicle" (Insurance Law § 5104[a]). In that case, the plaintiff exited a stopped bus and fell when she stepped into a hole in the street. The Court determined that the bus was neither a "proximate cause" nor an "instrumentality" that produced her injury (id. at 926 [internal quotation marks omitted]; see also Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 [1996]). 

Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.  

Thus, the arbitrator and master arbitrator rationally found that the bus was a "proximate cause" of the injury and that the accident involved the "use or operation" of a motor vehicle within the meaning of Insurance Law § 5104(a).

Danger Invites Rescue Doctrine Applied to Reverse Stay of SUM Arbitration

SUM  – USE OR OPERATION – DANGER INVITES RESCUE DOCTRINE
Matter of Encompass Indem. Co. v. Rich
(2nd Dept., decided 8/5/2015)

A firefighter injures his right shoulder while using the "jaws of life" to extricate the trapped driver of a vehicle that had crashed into a utility pole while speeding.

Question:  Is that injury compensable under the firefighter's personal auto policy's supplementary uninsured motorists (SUM) or underinsured motorists coverage?

Answer:  if there is proof that the negligent use of the underinsured motor vehicle causes an accident that led to the driver being trapped and in obvious need of medical attention, which, in turn, led to the insured's intervention and resulting injuries, then yes, SUM coverage is applicable.

New York SUM endorsements provide coverage only when the injuries are "caused by an accident arising out of such underinsured motor vehicle's ownership, maintenance or use[.]"  11 NYCRR 60-2.3(f).

In REVERSING the Supreme Court's order which had granted Encompass' application for a permanent stay of the respondent's SUM arbitration, the Appellate Division, Second Department, held:

Rich invoked the doctrine of "danger invites rescue" to establish that Goodman's negligent use of the underinsured vehicle proximately caused his injuries. That doctrine imposes liability upon a party who, "by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid" (Provenzo v Sam, 23 NY2d 256, 260; see Wagner v International Ry. Co., 232 NY 176, 180;Flederbach v Lennett, 65 AD3d 1011, 1012). The doctrine also applies "where the culpable party has placed himself [or herself] in a perilous position which invites rescue" (Provenzo v Sam, 23 NY2d at 260 [emphasis omitted]; see Finnocchiaro v Napolitano, 52 AD3d 463, 465). "In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril" (Kesick v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 1221; see Provenzo v Sam, 23 NY2d at 260-261; Tassone v Johannemann, 232 AD2d 627, 628).

Here, Encompass failed to establish that Rich was not entitled to coverage under the SUM endorsement. The evidence in the record establishes that Goodman's negligent use of his vehicle directly caused the accident that led to him being trapped and in obvious need of medical attention, which, in turn, led to Rich's intervention and resulting injuries (see Kesick v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 1221-1222). It cannot be said, as a matter of law, that Goodman's negligent use of his vehicle was not a proximate cause of Rich's injuries under the doctrine of danger invites rescue. Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration.

The court also held that Encompass was not entitled to a temporary stay of the SUM arbitration to conduct pre-arbitration discovery because it "had ample time to seek discovery before commencing this proceeding and unjustifiably failed to do so (see Matter of Progressive N. Ins. Co. v Foss, 96 AD3d 855; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 714; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623)."

Rottie Bite Out Car Window Not Ownership, Maintenance or Use of Motor Vehicle

UNDERINSURED MOTORISTS COVERAGE – OWNERSHIP, MAINTENANCE OR USE OF UNDERINSURED VEHICLE – STAY ARBITRATION
Matter of Allstate v. Reyes
(2nd Dept., decided 8/7/2013)

Deborah Reyes was walking past a parked car at a Sunoco Mart in Poughkeepsie, New York, when a rottweiler dog extended its head from inside the vehicle and bit her right breast. Reyes sued  the vehicle's owner, Michael Kazimer, which GEICO, the insurer of Kazimer's vehicle, later settled for $25,000, the limits of the policy. Reyes then sought SUM coverage from her own auto insurer, Allstate. Allstate denied SUM coverage, concluding that the incident did not arise "out of the ownership, maintenance, or use of an underinsured vehicle." Reyes demanded arbitration of her SUM claim, and Allstate commenced this special proceeding to permanently stay arbitration. Supreme Court, Dutchess County (Pagone, J.) denied the petition, concluding that the incident had arisen "out of the ownership, maintenance, or use of an underinsured vehicle."  Allstate appealed.

In REVERSING Supreme Court's order and granting the petition to stay arbitration, the Appellate Division, Second Department, held:

Underinsured endorsements, such as the one at issue in this case, provide coverage only when the injuries are the result of an accident "arising out of such [underinsured's] motor vehicle's ownership, maintenance or use" (11 NYCRR 60-2.3[2][e][2]; see Matter of Liberty Mut. Fire Ins. Co. [Malatino], 75 AD3d 967, 968). Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 638). To satisfy the requirement that it arose out of the "ownership, maintenance or use of" a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599; Eagle Ins. Co. v Butts, 269 AD2d 558, 559-560; U.S. Oil Ref. & Mktg. Corp. v Aetna Cas. & Sur. Co., 181 AD2d 768). "[T]he vehicle itself need not be the proximate cause of the injury," but "negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury" (Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599; see Empire Ins. Co. v Schliessman, 306 AD2d 512, 513). "To be a cause of the injury, the use of the motor vehicle must be closely related to the injury" (Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599).

Here, as a matter of law, Reyes's injuries did not result from the inherent nature of Kazimer's vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer's dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing (see Empire Ins. Co. v Schliessman, 306 AD2d at 513; Eagle Ins. Co. v Butts, 269 AD2d at 559; see also Keppler v American Family Mut. Ins. Co., 588 NW2d 105; Sanchez v State Farm Mut. Auto. Ins. Co., 878 P2d 31; Alvarino by Alvarino v Allstate Ins. Co., 370 Pa Super 563; American States Ins. Co. v Allstate Ins. Co., 484 So 2d 1363). Accordingly, since coverage is lacking, the Supreme Court should have granted the petition to permanently stay arbitration.

It was the dog, not the car, that caused Reyes' injuries, so no SUM coverage.  But can someone explain to me why GEICO paid its policy limit in the first place?

Opening a Taxicab Door Is Not "Operating" the Taxicab -- Liability Coverage to Passenger Who Opened Door into Path of Bicyclist Denied

COMMERCIAL AUTO – LIABILITY COVERAGE – WHAT CONSTITUTES "OPERATING" A VEHICLE
Kohl v. American Tr. Ins. Co.
(Ct. Apps., decided 7/1/2010)

In Henderson v. New York Cent. Mut. Fire Ins. Co., 56 AD3d 1141, the Fourth Department ruled that negligently opening a car door constituted an "automobile accident" and stated that "the 'act of opening the [vehicle] door in order to exit the vehicle constitutes "use and operation" of a vehicle pursuant to Vehicle and Traffic Law § 388[.]'" 

In this case, plaintiff commenced this action for a judgment declaring that the American Transit was obligated to defend and indemnify him in an personal injury action brought by a bicyclist who was injured when the plaintiff opened the rear door of a taxicab he was exiting into the bicyclist's path.  Affirming the Supreme Court's order granting American Transit's cross motion for summary judgment, the Second Department stated that "[t]he Supreme Court properly granted the defendant's cross motion for summary judgment since the plaintiff is not entitled to a defense or to indemnity for his 'use' of a vehicle under the defendant's commercial automobile policy insuring the owner and the driver of the taxi-cab[.]"

Plaintiff obtained leave to appeal the Second Department's decision to the Court of Appeals, and that court recently AFFIRMED the award for summary judgment to American Transit, succinctly holding:

The Appellate Division correctly held that Kohl was not insured under the taxi owner's policy of automobile liability insurance. The policy says that it "shall inure to the benefit of any person legally operating" the insured vehicle in the business of the insured. The word "operating" cannot be stretched to include a passenger's riding in the car or opening the door. 

Is there a legal difference between "operation" as used in the term "use and operation" and "operating", as used in the more limited insuring language of American Transit's taxicab policy?  Apparently there is, with both the Second Department's and Court of Appeals' decisions in this case having succeeded (but not mentioned) the Fourth Department's decision in Henderson. 

Burns from Gasoline Fire Did Not Arise From Use or Operation of Motor Vehicle -- Denial of No-Fault Benefits Upheld

NO-FAULT – USE OR OPERATION OF A MOTOR VEHICLE – INSURANCE LAW § 5102(B)
Hammond v. GMAC Ins. Group
(3rd Dept., decided 11/6/2008)

Don't try this at home.

While pumping gas into his mom's car at a gas station, the gas pump nozzle popped out of the tank opening and allowed some gasoline to spill onto the ground and, unbeknownst to plaintiff, his clothing. Plaintiff then entered the station's store to purchase a pack of cigarettes. Shortly after leaving the gas station while riding as a passenger in the vehicle, plaintiff attempted to light a cigarette, causing the gasoline on his clothing to ignite, which in turn caused severe burns to the right side of plaintiff's body, right arm and leg.

GMAC denied no-fault coverage for plaintiff's injuries based on its conclusion that they did not arise out of the use or operation of a motor vehicle, as required by New York Insurance Law §§ 5102(b) and 5103(a)(1). Plaintiff commenced this action for no-fault benefits, and after discovery was complete, both parties moved for summary judgment.

In AFFIRMING the denial of plaintiff's motion and granting of GMAC's cross motion, the Third Department held:

No-fault insurance benefits are payable only if a person's injury "aris[es] out of the use or operation of a motor vehicle" (Insurance Law § 5102 [b]; see § 5103 [a] [1]). Inasmuch as "[t]he vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises" (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]), we agree with Supreme Court's conclusion that plaintiff's injuries sustained when he attempted to light a cigarette, igniting gasoline that he had spilled on his clothing did not arise out of the use of the vehicle. Indeed, plaintiff's injuries would have occurred even if he had never reentered the vehicle and his friend had driven away (see Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890 [2005]; cf. Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740, 741-742 [2003]). Thus, although plaintiff's injuries occurred while he was inside the moving vehicle, because "the vehicle itself was not a cause of the damage," he is not entitled to no-fault benefits (Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 215; see Sullivan v Barry Scott Agency, Inc., 23 AD3d at 890, Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889, 889 [1995]).

In treating plaintiff's burns, maybe his doctors should also check his olfactory receptors.