Dependable Ambulette, Inc. v Allstate Ins. Co.

[*1] Dependable Ambulette, Inc. v Allstate Ins. Co. 2006 NY Slip Op 51851(U) [13 Misc 3d 1216(A)] Decided on October 3, 2006 District Court Of Suffolk County, Third District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2006
District Court of Suffolk County, Third District

Dependable Ambulette, Inc. as Assignee of Johnson, Jenniva, et al., Plaintiff

against

Allstate Insurance Company, Defendant.



HUC 1104-05



Edward Shapiro, P.C.

Attorney for Plaintiff

3351 Park Avenue

Wantagh, NY 11793

Robert P. Tusa, Esq.

Attorney for Defendant

898 Veterans Memorial Highway

Suite 320

Hauppauge, NY 11788

C. Stephen Hackeling, J.

After submission of stipulated facts by the parties , Dependable Ambulette, Inc., (hereafter "Dependable") seeks to recover the sums of $2,015, $1,755, $975, $1,040, for transportation services rendered after April 5, 2002, upon automobile insurance policies issued prior thereto which contained assignability clauses. Dependable, the assignee herein, argues that the NYS Insurance Commissioner's April 5, 2002 amendment to Art. 68, did not terminate existing policy endorsements but simply required all future insurance policies issued or renewed after April 5, 2002 to contain new endorsements prohibiting assignment of claims. In support of this decision, the plaintiff advances the unreported decision of Dependable Ambulette, Inc. V. Allstate Insurance Co., June 2, 2004, No. 0032/04 (Nassau Co. Dist. Ct. 2004) which holds that revised Insurance Department Regulation 68 can not be retroactively applied to claims made upon policies existing pre April 5, 2002.

This Court is sympathetic to Judge Janowitz's legal reasoning in creating an "existing policy" exception to the Regulation 68 amendment which barred assignability of ambulance transportation services. However, the Appellate Courts appear to have subsequently clearly settled this controversy. The Second Department, citing to the Court of Appeals,

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unequivocally upheld the dismissal of a post April 5, 2002 transportation no-fault insurance claim. See A B Medical Services PLLC, v. Motor Vehicle Acc. Indemnificatin Corp., 10 Misc 3d 145A (App. Term, 2nd Dept. 206) citing to Medical Society of State of New York v. Serio, 100 NY2d 854 (NY 2003). Though the Second Department and the underlying Appellate Term decision do not address the issue of an pre-existing April 5, 2005 policy endorsement; they expressly hold that the claims were properly dismissed as " the plaintiffs therein... submitted its transportation copies subsequent to April 5, 2002 regulation... which no longer permit the assignment". This holding does not appear to grant this Court license to find an exception to the established rule.

The Court notes that the "no-fault"automobile insurance system (NY Ins. Laws Art. 51) is a statutory creature which the legislature has given the Insurance Commissioner broad discretion to regulate. The rights running to the benefit of claimants are principally established via statute and regulation and only secondarily by endorsements made by the insurance carriers. The rights of the insurance carriers and their policy holders do not exist independently of the "no-fault" insurance system and can not be considered in any manner which is inconsistent to the regulations' intent and purpose. The April 5, 2002 amendment properly voided any existing policy assignment language as "contrary to public policy". See Medical Society of State of New York v. Serio, 100 NY2d 854 (2003)

Accordingly, the Court dismisses the plaintiff's complaint.

_____________________________

J.D.C.

Dated: October 3, 2006

Huntington Sta., NY

Decision to be published ____yes___no.

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