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Fraudulent procurement defense not substantiated



Quality Med. Care, PC v Progressive Cas. Ins. Co., 2017 NY Slip Op 50999(U)(Civ. Ct. Bronx Co. 2017)

I read this and I think the Court missed the issue, yet arrived at the result it should have.  First issue: a material misrepresentation defense (Ins Law 3105) does not require an intentional misrepresentation.  That said, second issue: proof must be adduced as to the rate difference,  Third issue: assuming it is not an AIP policy (statutory rates).  the underwriting manual must be entered into evidence.

The Court got lost on issue one and briefly addressed issue two (but never ruled on it) and failed to address issue three.

Too many moving pieces on these cases.

Point one: “The record is devoid of what actions, if any, the defendant took in regards to Ms. Murphy’s automobile insurance policy after having actual knowledge that she was residing in Jamaica, New York. Apparently, the defendant subsequent to the automobile accident decided to disclaim payment of Ms. Murphy’s medical bills on the purported basis that at the time the application for insurance was submitted by her that she provided a false residential address.”

Not a real issue.  Estoppel  is generally not a defense to a fraudulent procurement defense.  Perhaps now it is?  There is no case law on the topic.

Second issue: “there is no evidence attesting to her intent”  Irrelevant.

No testimony as to the rate difference:  “The best that this court can surmise, is that there must be a price differential in the policy premiums charged in Rochester, New York and Jamaica, New York, with the latter premiums being higher as this appears to be the motive attributed by defendant to the plaintiff’s assignor”

That is all she wrote on this one.