W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 2012 NY Slip Op 22142 (App. Term 2d Dept. 2012)
It was interesting to see a discussion on the nuances of Florida PIP law. It has been under such lately, especially as they seek to crack down on perceived abuses of the law. Putting aside the radical shift in Florida no-fault, an interesting discussion arose from the Appellate Term regarding retroactive cancellation of insurance policies.
(1) “Lawrence Sherman and Bird Waldon were involved in a motor vehicle accident in New York. Sherman, the driver, and Waldon, his passenger, were in a vehicle insured by defendant under a Florida automobile insurance policy issued to Sherman.”
(2) “Florida Statutes Annotated, title 37, § 627.409 permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in an application for insurance, whereas New York prohibits such a retroactive rescission (see Vehicle and Traffic Law § 313; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 ; Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 297-298 ) but permits an insurer to deny benefits to a claimant who was a participant in the fraud”
(3) “In the instant case, defendant insurer seeks judgment as a matter of law, under Florida law, based upon its having validly rescinded the policy pursuant to Florida law, and not under the laws of New York, where it would have had the burden of establishing that the insured, Sherman, had fraudulently procured the policy.”
(4) “An insurer’s failure to rescind a motor vehicle policy in accordance with the statutory notice of cancellation procedures of Florida Statutes Annotated, title 37, § 627.728 does not preclude or abrogate the insurer’s ability to void the policy ab initio pursuant to Florida Statutes Annotated, title 37, § 627.409 (see United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla 2009]). The insurer must, however, demonstrate that it gave notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy.”
The Assignee medical provider who takes an assignment from an assignor-insured who makes a material misrepresentation in the procurement under NY law may still have no-fault benefits disclaimed. My reading of this case is that under Florida law, all of the assignors will lose coverage, whether or not they are innocent. Contrariwise, under New York law, the insure must prove that the other assignors conspired or aided and abetted the insured in material the misrepresentations.
From a choice of law standpoint, FL law applies because that is where the policy was issued from.