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She really was not an EIP

Lenox Hill Radiology v Government Empls. Ins. Co., 2010 NY Slip Op 51638(U)(App. Term 1st Dept. 2010)

“Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold….  [t]he obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured.”

This is an extremely important case.  I am not sure how many of you out there can read between the lines on this one.  I will say that Lenox Hill’s argument was definitely reasonable, but the rules of no-fault practice and that of standard liability coverage cases can at times diverge.  Remember what the Appellate Division held in Utica v. Timms, before you cast judgment on this court’s holding.

I also must reiterate something I stated in a post last week that the Appellate Term, First Department, tends to side with the carriers on issues involving coverage, exclusion and conditions precedent to coverage.  I also tend to think that the Appellate Term, Second Department may have come to a different conclusion on a similar set of facts.  See e.g.Psych. & Massage Therapy Assoc. v. Progressive Cas. Co., 12 Misc.3d 140(A)(App. Term 2d Dept. 2006).

What do the 200 readers a day who read this think?