Opinion
570004/22
04-19-2022
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Petitioner-Respondent, v. BRANCH MEDICAL, P.C. a/a/o Vida Nyarko, Respondent-Appellant.
Per Curiam.
Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.
Civil Court properly vacated the master arbitrator's award and denied respondent's cross motion to confirm the award. When an insurer "has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease" ( Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000] [internal quotation marks omitted]). An arbitrator's award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator's power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co. , 92 NY2d 821, 823 [1998] ; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020] ). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co. , 12 AD3d 579, 580 [2004] ).
At the framed issue hearing on the issue of policy exhaustion, petitioner's submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016] ). The evidence includes the testimony of petitioner's claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.
Contrary to respondent's contention, petitioner was not precluded by 11 NYCRR 65—3.15 from paying other legitimate claims subsequent to the denial of respondent's claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A] ; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. , 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept 2015] ). Adopting respondent's position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent's disputed claims "runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims" ( Nyack Hosp. v General Motors Acceptance Corp. , 8 NY3d 294, 300 [2007] ). Respondent's contention that the other claims paid by petitioner were not shown to be "verified" is unpreserved as a matter of law for this court's review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez] , 212 AD2d 405 [1995] ). The alleged defect in petitioner's proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O'Neill Milk & Cream Co. , 308 NY 342, 349 [1955] ; Douglas Elliman-Gibbons & Ives v Kellerman , 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991] ).
Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because "there was no evidence ... that assignor was a pedestrian."
We have considered respondent's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur