Proof that Plaintiff Was Struck by an Insured Vehicle Defeats UM Claim

By Barry Zalma on March 10, 2021

UM Coverage Requires that the Other Vehicle be Uninsured or Underinsured

When Ligia Charris was injured in an auto accident from a vehicle that hit her and ran, with the assistance of a bystander, she was able to identify the owner of the other vehicle. That vehicle was insured by State Farm who refused to pay her because its insured claimed it was not involved in the accident. In the Matter of Government Employees Insurance Company v Ligia Charris, Truck Tan, LLC, et al., 2019-07054, 2021 NY Slip Op 01257, Supreme Court Of The State Of New York Appellate Division, Second Judicial Department (March 3, 2021) was asked to allow GEICO to refuse to pay because the other vehicle was insured.

THE MOTION & TRIAL COURT DECISION

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Truck Tan, LLC, and State Farm Mutual Automobile Insurance Company appeal from an order and judgment of the Supreme Court, Queens County. The order and judgment granted that branch of the petition which was to permanently stay arbitration.

FACTS

On December 1, 2017, Ligia Charris allegedly was injured when her vehicle was struck by a red van that fled the scene. Although the van drove away, a bystander took photographs, allegedly of the van that struck Charris’s vehicle, and sent them to Charris via text message. The van shown in those photographs was owned by Truck Tan, LLC (hereinafter Truck Tan), and insured by State Farm Mutual Automobile Insurance Company (hereinafter State Farm).

Charris filed a claim with State Farm, and State Farm denied payment of the claim on the ground that its insured denied involvement in the accident and Charris had insufficient evidence to prove liability against its insured. Charris then served a demand upon her insurer, Government Employees Insurance Company (hereinafter GEICO), to arbitrate her claim for uninsured motorist benefits. Thereafter, GEICO sued to permanently stay the arbitration, on the ground that the van was insured by State Farm and, thus, Charris had no valid claim under the uninsured motorist endorsement of her policy.

The arbitration was temporarily stayed pending a hearing to determine whether Truck Tan’s vehicle was involved in the subject accident. At the hearing, Charris testified that she saw the vehicle that struck her vehicle. She described it as a red “construction van” with writing on the side doors, a metal rack or rails on top, and painting on the back doors. Charris further testified that, while she was at the scene of the accident, a bystander sent photographs depicting the van, with a visible license plate, to Charris via text message, which Charris shared with the responding police officer. Charris testified that the van depicted in those photographs was the van that struck her vehicle. The photographs were admitted into evidence over the objection of Truck Tan and State Farm. At the conclusion of the hearing, the Supreme Court found that GEICO had established that the van which struck Charris’s vehicle was the vehicle registered to Truck Tan and insured by State Farm, and that no evidence was offered to rebut these findings.

Upon finding that the subject van was involved in the accident, the court granted that branch of the petition which was to permanently stay arbitration of the uninsured motorist claim. Truck Tan and State Farm appeal.

ANALYSIS

In a proceeding to permanently stay arbitration of a claim for uninsured motorist benefits, the claimant’s insurer has the initial burden of proving that the alleged offending vehicle was insured at the time of the accident, and thereafter the burden is on the party opposing the stay to rebut that prima facie showing. Here, GEICO made a prima facie showing that the alleged offending vehicle was a van owned by Truck Tan and insured by State Farm. Charris testified that she saw the van that struck her vehicle and she was able to describe it. She also properly authenticated two photographs as depicting the van that struck her vehicle. Visible within one of those photographs is the van’s license plate. Through the results of a license plate search for that plate number, GEICO demonstrated that the other vehicle involved in the accident was owned by Truck Tan and that it had insurance coverage with State Farm.

Truck Tan and State Farm offered no evidence to rebut that prima facie showing. Accordingly, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration of the uninsured motorist claim.

ZALMA OPINION

Uninsured motorist coverage requires – as a matter of course – that the vehicle causing damage to the insured, be uninsured. When the insured proved that the vehicle was owned by Truck Tan and insured by State Farm, GEICO obviously had no obligation to pay an uninsured motorist claim since the vehicle that hit Ms. Charris was insured. She can still pursue Truck Tan and its insurer for her injuries. The big question, of course, is why anyone thought it useful to bring this dispute to court.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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