Omphil Care, Inc. v Pearl Holding Group

[*1] Omphil Care, Inc. v Pearl Holding Group 2019 NY Slip Op 50998(U) Decided on March 13, 2019 Civil Court Of The City Of New York, Kings County Kennedy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2019
Civil Court of the City of New York, Kings County

Omphil Care, Inc., A/A/O MOSES EDOUARD, Petitioner,

against

Pearl Holding Group MANAGING GENERAL AGENT FOR OCEAN HARBOR CASUALTY INSURANCE COMPANY, Respondent



CV-743898/16



Attorney for plaintiff:

Oleg Rybak, Esq.

The Rybak Firm PLLC

1810 Voorhies Avenue

3rd Floor Suite 7

Brooklyn, New York 11235

Attorney for defendant

Richard E. Weber, Jr., Esq.

Gallo Vitucci Klar LLP 90 Broad Street

New York, New York 10004
Odessa Kennedy, J.

RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion and Affidavits Annexed 1,2

Notice of Cross-Motion 3,4

Reply Affirmation 5

In an action to recover assigned first-party no fault insurance benefits, plaintiff moves for an order granting plaintiff summary judgment dismissing defendant's affirmative defenses or finding that the billing forms were mailed to and received by defendant, and that payment of the benefits are overdue. Defendant cross moves pursuant to CPLR §3211(a)(1) and (5) to dismiss the action on the ground of lack of coverage.

Defendant claims that it did not insure the plaintiff's assignor on the date of the accident as the subject policy had been rescinded ad initio, pursuant to Florida Law.

On August 27, 2010, the insured Christopher D. Dillion applied for a Florida automobile insurance policy with defendant where he represented that he resided and garaged the vehicle in Florida. Based upon Mr. Dillon's representations, defendant issued the insured an automobile insurance policy effective from August 27, 2010 through August 27, 2011.

On June 25, 2011, the assignor, while a passenger in Mr. Dillon's vehicle, sustained injuries as in an automobile accident which occurred in New York, for which he obtained treatment from the plaintiff.

CONFLICT OF LAW

There is no dispute that conflicts exist between New York law and Florida law regarding the issues raised herein. Plaintiff claims that the matter is governed under New York law, and defendant contends that the law of Florida applies.

In New York, an insurer may not deny coverage based on an insured's fraudulent misrepresentation, without issuing a denial detailing the basis within 30 days of the receipt of a claim. Conversely, under Florida law, provided the insurer demonstrates notice of rescission and the return of the all premiums paid, "[a]n insurer's failure to rescind a motor vehicle policy in accordance with the statutory notice of cancellation procedures does not preclude or abrogate the insurer's ability to void the policy ab initio pursuant to Florida Statutes Annotated, title 37, 627.409" (W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7, 947 N.Y.S.2d 758 [App. Term, 2nd Dept, 2d, 11th and 13th Jud. Dists., 2012]; see also FL St § 627.409; Gonzalez v Eagle Ins. Co., 948 So. 2d 1 [2006] [stating that Florida law gives insurers the unilateral right to rescind an insurance policy based on misrepresentation in the application.])

Under New York law, an insured or assignee of an insured may be denied benefits, where an insurer establishes that the insured had fraudulently procured the insurance policy. In Florida, pursuant to Florida Law § 627.409, an insurance policy may be rescinded based on material mispresentations, omissions, and concealments that were material to the acceptance of the risk.

At the outset, this Court must determine whether to apply the law of the State of New York or the law of the State of Florida to this matter.

New York utilizes the 'grouping of contacts' or 'center of gravity' analysis as the appropriate approach to resolve choice of law questions, in cases premised on breach of contract. [*2]The 'grouping of contacts' approach seeks to determine which state has the most significant relationship to the contract or the parties. (See Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 [1981]; Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219, 597 N.Y.S.2d 904 [1993], revg 178 AD2d 899 [3d Dept 1991]. The court must consider the spectrum of significant contacts, rather than a single possible gratuitous event, in its determination as to which state has the most significant relationship to the parties or the contract. (See Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219, 597 N.Y.S.2d 904 [1993], revg 178 AD2d 899 [3d Dept 1991]; Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56, 717 N.Y.S.2d 351 [2d Dept 2000]). Among the contacts to be considered are the state where the parties entered into the contract, negotiated and performed the contract, the domicile of the parties, and the place of subject matter of the contract. See Matter of Midland Ins. Co., 16 NY3d 536, 923 N.Y.S.2d 396 (2011), revg 71 AD3d 221 (1st Dept 2010).

In the case at bar, it is uncontested that the insured entered into and negotiated the insurance contract in Florida, and obtained the Florida policy from defendant, a Florida Insurance provider. The insured further informed defendant that he was a Florida resident, and that he would garage the insured vehicle in Florida.

In applying the 'grouping of contacts' standards, Florida law clearly has the most significant contacts with the parties, and the contract. (See Delta Diagnostic Radiology, P.C. v. Infinity Group, 49 Misc 3d 42, 18 N.Y.S.3d 816 [App. Term, 2nd Dept, 2d, 11th and 13th Jud. Dists., 2015]; see also W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 947 N.Y.S.2d 758 [App. Term, 2nd Dept, 2d, 11th and 13th Jud. Dists., 2012]), holding that under New York law, Florida law applies to cases where the insured, a resident of Florida, obtained a Florida insurance policy for a vehicle registered and stored in Florida).

LACK OF COVERAGE DEFENSE

In its motion for summary judgment, defendant argues that (1) Florida law permits retroactive rescission of a policy based upon the insured's material misrepresentations; (2) defendant met its burden by establishing the policy was properly rescinded ab initio; and (3) plaintiff cannot challenge the rescission of the Florida policy in New York.

Defendant correctly contends that under Florida law, the insurer may rescind an automobile policy retroactively for material misrepresentation. Pursuant to Florida Statute Section § 627.409, an insurer may rescind an automobile policy ad initio. However, to effectively cancel the policy, the insurer must "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." (See W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 7, 947 N.Y.S.2d 758 [App. Term, 2nd Dept, 2d, 11th and 13th Jud. Dists., 2012] citing Leonardo v. State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla. 1996]; see also Hu-Nam-Nam v. Infinity Ins. Co, 51 Misc 3d 130[A], 36 N.Y.S.3d 407 [App Term, 2nd Dept, 11th and 13th 407 Jud. Dists, 2016]). Such a rescission would support a finding of a prima facie entitlement to summary judgment in favor of the defendant. (See, W.H.O. Acupuncture, P.C. v. Infinity Prop. & Cas. Co., supra, at 7).

In the insurance policy issued by defendant, coverage was effective from August 27, 2010 until August 27, 2011. The motor vehicle incident occurred on June 25, 2011. On January 4, 2017, a final judgment, pursuant to a lower court order granting summary judgment on November 9, 2016, was ordered by the Circuit Court for Broward County Florida rescinding the subject policy ab initio based on material misrepresentations. By letter dated January 11, 2017, [*3]pursuant to said final judgment by the Florida Court, defendant retroactively rescinded the policy based on the insured's material misrepresentation. Defendant thereafter issued a check refunding the premiums.

Given these uncontested facts, the Court finds defendant met its burden to notify the insured that the policy was properly rescinded ab initio under the laws of Florida and returning the premiums.

Plaintiff argues that even if this Court applies the laws of Florida to the instant matter, to grant defendant summary judgment, it must first determine that defendant demonstrated as a matter of law, that the insured perpetrated fraud, or misrepresentations in the procurement of the insurance policy.

This Court however, has no authority under New York law, to assess whether the basis of defendant's rescission of the policy was valid. Defendant's burden is merely to demonstrate that the policy was validly rescinded pursuant to the law of Florida. (See W.H.O Acupuncture, P.C. v. Infinity Prop. & Cas. Co., 36 Misc 3d 4, 947 N.Y.S.2d 758 [App Term, 2d Dept, 11th and 13th Jud. Dists, 2012]; see also Hu-Nam-Nam v. Infinity Ins. Co, 51 Misc 3d 130[A], 36 N.Y.S.3d 407 [App Term, 2nd Dept, 11th and 13th 407 Jud. Dists, 2016]).

In applying Florida law, defendant met its burden by demonstrating that the policy was properly rescinded. (See W.H.O Acupuncture, P.C. v. Infinity Prop. & Cas. Co., 36 Misc 3d 4, 947 N.Y.S.2d 758 [App Term, 2d Dept, 11th and 13th Jud. Dists, 2012]; see also Hu-Nam-Nam v. Infinity Ins. Co, 51 Misc 3d 130[A], 36 N.Y.S.3d 407 [App Term, 2nd Dept, 11th and 13th 407 Jud. Dists, 2016]).

In addition, the Court rejects plaintiff's request to deem invalid, the Florida Court's declaratory judgement order declaring that the subject policy is null and void. The Court will further not consider any arguments presented fcbeyond the scope of the answering papers.

Based on the foregoing, defendant's motion for summary judgment to dismiss the complaint is granted.

DATE: March 13, 2019

______________________________

HON. ODESSA KENNEDY

Judge of the Civil Court