Q. 1 (a) What is Summary Judgement (SJ)?
(b) How to decide Plaintiff's (P's) motion for SJ on Defendant's negligence?
2. (a) When Plaintiff's motion for SJ on whether he suffered serious injury can be denied?
(b) What is "New York No fault Insurance Law" ?
(c) Basic similarity between Section 140 of Motor Vehicle Act, 1988 of India and New York No Fault Insurance Law.
(d) No fault compensation to be paid by whom? Whose Ins. Co.? Plaintiff's or Defendant's ? Ans. Mostly from Defendant's Ins. Co., but in some cases Plaintiff's insurance Co. too, depending on state law and terms and conditions of the policy.
(e) How much? (In India Rs. 25,000 for permanent disablement and Rs. 50,000 in case of death; In U.S. only 12 states including NY, but not IL, have adopted no fault law coverage provision.
3. (a) Rights of Supplier of medical devices to P's against P.'s Ins. Co.?
(b) Which state law to apply in above Question 3 (a)?
QUESTION (4)
(Taken from http://www.nybarexam.org/ExamQuestions/FEB2015QA.pdf )
The link is on NY Past Bar Questions-Answers February 2015
Phil, a State X resident, was injured when the car he was driving was hit in the rear by a car driven by Donna, while he was stopped at a red light at an intersection in New York City. As a result of the accident, Phil complained of back pain and was taken by ambulance to a hospital emergency room where his back was x-rayed and other diagnostic tests were conducted. All test results were negative.
Nevertheless, Phil continued to have back pain. One week after the accident Phil went to his doctor who, without making a specific diagnosis, prescribed a number of medical devices, including an infrared heat lamp and a massager, to alleviate Phil’s pain. Phil purchased the devices from Supply Inc., a New York corporation, for $7,500 and assigned to Supply Inc. his right to be reimbursed for this cost.
Thereafter, Phil commenced an action against Donna in New York State Supreme Court to recover $500,000 in damages for his pain and suffering.
At his deposition, Phil testified that at the time of the accident the traffic was bumper-to-bumper and moving slowly. Phil testified that his car was stopped at the time it was hit in the rear by the car driven by Donna. Phil also testified that, immediately following the accident, he was confined to his bed for one week, confined to his home for two weeks, and missed two months from work.
At her deposition, Donna testified that the traffic was heavy and moving slowly. Donna also testified that her speed prior to impact was 10 to 15 miles per hour, that she was following Phil’s vehicle, and that after moving less than a block, Phil’s vehicle came to a sudden and abrupt stop. Donna testified that she applied the brakes but was unable to avoid hitting Phil.
Based upon the foregoing, after discovery was complete, Phil moved for summary judgment claiming that (a) Donna was negligent as a matter of law, and (b) Phil suffered a serious injury under New York no-fault insurance law. Donna opposed the motion claiming that the facts did not establish her negligence and that, in any event, Phil had not suffered a serious injury. The court denied Phil’s motion in its entirety.
Phil’s automobile insurer is CarCo, a State X insurance company, which does business in New York. Phil purchased the insurance in State X where his car is garaged and registered. The insurance policy provides the no-fault coverage required by New York law when the vehicle is operated in New York, including payment for medical devices that are deemed medically necessary to treat injuries occurring in an accident.
Two weeks after supplying the medical devices to Phil, Supply Inc. sought payment from CarCo for the devices, but CarCo failed to pay or deny the claims. Six 6 months later, Supply Inc. again sought payment from CarCo for the devices. CarCo then denied payment, claiming the devices supplied by Supply Inc. were not medically necessary.
Supply Inc. subsequently commenced an action against CarCo in New York to recover the cost of the medical devices, pursuant to the assignment from Phil. CarCo has moved for summary judgment claiming that it should not be required to pay Supply Inc. because the devices provided by Supply Inc. were not medically necessary. Supply Inc., in opposing the motion, claims that it was too late for CarCo to raise the defense of lack of medical necessity.
Under New York law, a defense of lack of medical necessity is precluded on a claim to recover no-fault benefits paid by a supplier if the insurance carrier does not raise the defense within 30 days of receipt of the claim. However, State X law permits the defense of lack of medical necessity to be raised at any time. The insurance policy contains no provision addressing this issue.
(1) Did the court correctly deny Phil’s motion for summary judgment on the issue of Donna’s negligence?
(2) Did the court correctly deny Phil’s motion for summary judgment on the issue of whether Phil suffered a serious injury?
(3) In Supply Inc.’s action against CarCo, which state’s law regarding the time for raising the defense of lack of medical necessity should the court apply?
Answer:
1. The issue is, whether the court correctly denied Phil's motion for summary judgment on the issue of Donna's negligence.
A motion for summary judgment may be granted, if there is no genuine issue as to material facts and a cause of action will be successful based on these facts as a matter of law. In deciding on a motion for summary judgment the court reviews the pleadings and the evidence, mostly affidavits but also depositions, in the most favorable light for the non-moving party. A person is liable for negligence, if the defendant (i) had a duty to act in a certain way, (ii) breached this duty by violating the standard of care of a reasonably prudent person, (iii) the person's acts were the actual and proximate cause of the damages, (iv) and the plaintiff proves damages. A person can be negligent, if this person violated a law that forbids the defendant's behavior, that seeks to prevent the class of injury the plaintiff suffered, and if the plaintiff actually suffered such injury. Such negligence is also called negligence per se. The violation of a rule of traffic may constitute such a breach of a duty.
Here, Donna crashed her car into Phil's car, while he was stopped at a red light. Both Phil and Donna testify that traffic was moving slowly, whereas Donna specifies that traffic was moving with around 10 to 15 miles an hour. Both parties state that Donna's car was driving behind Phil's car until the accident happened. Donna explains that she crashed into Phil's car because his car came to a 'sudden and abrupt stop.' She applied the brakes but was not able to stop the collision with Phil's car. Phil seems to agree to these facts. Under the traffic rules in NY, Donna has a duty to stop her car without crashing into another person's car, also if it is abruptly necessary. There is no such defense as a sudden stop that would justify her crash into Phil's car. She breached this duty, which seeks to prevent accidents and protect traffic participants from unforeseen crashes. The judge could rely for these undisputed facts on evidence of a deposition of Phil and a deposition of Donna. Since her breach of duty also is within actual and proximate cause, she would be liable for the damages caused to Phil as a matter law.
Thus, the court improperly denied Phil's motion for summary judgment for Donna acting negligent as a matter of law, because undisputed facts would allow this legal conclusion.
2. The issue is, whether the court correctly denied Phil's motion for summary judgment on the issue of whether Phil suffered a serious injury.
A motion for summary judgment may be granted, if there is no genuine issue as to Material facts and a cause of action will be successful based on these facts as a matter of law. In deciding on a motion for summary judgment the court reviews the pleadings and the evidence, mostly affidavits but also depositions, in the most favorable light for the non-moving party. Under New York law a plaintiff must first seek damages from his own no-fault insurance, if he is seeking damages for an accident that occurred during the operation of his car. No-fault insurance is compulsory for all automobile owners in New York State and is supposed to prevent unnecessary litigation between traffic participants. A person can claim up to $50,000 for damages occurred from an accident from his no-fault insurance. In order to overcome this limit, and in order to be able to sue another person involved in the traffic accident, the person needs to allege that he suffered a serious injury. A serious injury may be a physical dismemberment, the loss of a limb, or any injury that prevents the plaintiff from going to work in 90 out of 180 days after the accident.
In answer to (C) re: Basic similarity found in following provision in law of India and New York Law
[ In India:
Discussion on Motor Vehicles Act, 1988 India
http://law-projects.blogspot.com/2013/04/no-fault-liability-under-motor-vehicle.html
LIABILITY WITHOUT FAULT IN CERTAIN CASES
140. Liability to pay compensation in certain cases on the principle of no fault.- (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [85] [fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of [86] [twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A.
In our case, Phil had an accident with Donna while operating his automobile and
therefore first needs to seek damages from his insurance company, CarCo. Although he is
claiming $500,000 in damages, which is well above the sum that he would get from his
insurer, he did not suffer a serious injury. He suffered a back pain, which could not be
diagnosed in hospital after being x-rayed and other diagnostic tests. Moreover,
immediately after the accident, he was confined to his bed for only one week, confined to
his home for two weeks, and he missed two months from work. His absence from work is
below the 90 days required, and as such he did not suffer a serious injury as a matter of
law.
Thus, the court correctly denied Phil's motion for summary judgment on the issue of whether he suffered a serious injury, because he could go back to work earlier than required under the law, and he is therefore entitled to seek damages only from his insurance.
3. The issue is, which state's law regarding the time for raising the defense of lack of medical necessity the court should apply in Supply Inc.'s action against CarCo. New York conflict of laws rules follow a center of gravity analysis in insurance claims. In such an analysis the court assess where the insurance has been issued, where the insured party has her residence, where the insured incident occurred, where the claiming party is domiciled.
Here, Phil is domiciled in State X, CarCo, the insurance company that is the defendant in the underlying suit, is a State X insurance company, but also does business in New York. Phil purchased the insurance in State X and has is car garaged and registered in State X. The accident causing the damages to Phil occurred in New York and Phil purchased medical devices from Supply Inc., a New York corporation, and assigned his right to be reimbursed to Supply Inc. New York has a 30 day period for the receipt of claim, whereas State X has no such period and allows to make claims also later. Hence, there is no threat that Supply Inc. chose New York as a forum, because it wanted to choose the more preferable rules, i.e. forum shopping.
Thus, given that the center of gravity for this action is in New York, the court should apply New York law, without fearing that this is an incentive for forum shopping for other plaintiffs in the future.
(b) How to decide Plaintiff's (P's) motion for SJ on Defendant's negligence?
2. (a) When Plaintiff's motion for SJ on whether he suffered serious injury can be denied?
(b) What is "New York No fault Insurance Law" ?
(c) Basic similarity between Section 140 of Motor Vehicle Act, 1988 of India and New York No Fault Insurance Law.
(d) No fault compensation to be paid by whom? Whose Ins. Co.? Plaintiff's or Defendant's ? Ans. Mostly from Defendant's Ins. Co., but in some cases Plaintiff's insurance Co. too, depending on state law and terms and conditions of the policy.
(e) How much? (In India Rs. 25,000 for permanent disablement and Rs. 50,000 in case of death; In U.S. only 12 states including NY, but not IL, have adopted no fault law coverage provision.
3. (a) Rights of Supplier of medical devices to P's against P.'s Ins. Co.?
(b) Which state law to apply in above Question 3 (a)?
QUESTION (4)
(Taken from http://www.nybarexam.org/ExamQuestions/FEB2015QA.pdf )
The link is on NY Past Bar Questions-Answers February 2015
Phil, a State X resident, was injured when the car he was driving was hit in the rear by a car driven by Donna, while he was stopped at a red light at an intersection in New York City. As a result of the accident, Phil complained of back pain and was taken by ambulance to a hospital emergency room where his back was x-rayed and other diagnostic tests were conducted. All test results were negative.
Nevertheless, Phil continued to have back pain. One week after the accident Phil went to his doctor who, without making a specific diagnosis, prescribed a number of medical devices, including an infrared heat lamp and a massager, to alleviate Phil’s pain. Phil purchased the devices from Supply Inc., a New York corporation, for $7,500 and assigned to Supply Inc. his right to be reimbursed for this cost.
Thereafter, Phil commenced an action against Donna in New York State Supreme Court to recover $500,000 in damages for his pain and suffering.
At his deposition, Phil testified that at the time of the accident the traffic was bumper-to-bumper and moving slowly. Phil testified that his car was stopped at the time it was hit in the rear by the car driven by Donna. Phil also testified that, immediately following the accident, he was confined to his bed for one week, confined to his home for two weeks, and missed two months from work.
At her deposition, Donna testified that the traffic was heavy and moving slowly. Donna also testified that her speed prior to impact was 10 to 15 miles per hour, that she was following Phil’s vehicle, and that after moving less than a block, Phil’s vehicle came to a sudden and abrupt stop. Donna testified that she applied the brakes but was unable to avoid hitting Phil.
Based upon the foregoing, after discovery was complete, Phil moved for summary judgment claiming that (a) Donna was negligent as a matter of law, and (b) Phil suffered a serious injury under New York no-fault insurance law. Donna opposed the motion claiming that the facts did not establish her negligence and that, in any event, Phil had not suffered a serious injury. The court denied Phil’s motion in its entirety.
Phil’s automobile insurer is CarCo, a State X insurance company, which does business in New York. Phil purchased the insurance in State X where his car is garaged and registered. The insurance policy provides the no-fault coverage required by New York law when the vehicle is operated in New York, including payment for medical devices that are deemed medically necessary to treat injuries occurring in an accident.
Two weeks after supplying the medical devices to Phil, Supply Inc. sought payment from CarCo for the devices, but CarCo failed to pay or deny the claims. Six 6 months later, Supply Inc. again sought payment from CarCo for the devices. CarCo then denied payment, claiming the devices supplied by Supply Inc. were not medically necessary.
Supply Inc. subsequently commenced an action against CarCo in New York to recover the cost of the medical devices, pursuant to the assignment from Phil. CarCo has moved for summary judgment claiming that it should not be required to pay Supply Inc. because the devices provided by Supply Inc. were not medically necessary. Supply Inc., in opposing the motion, claims that it was too late for CarCo to raise the defense of lack of medical necessity.
Under New York law, a defense of lack of medical necessity is precluded on a claim to recover no-fault benefits paid by a supplier if the insurance carrier does not raise the defense within 30 days of receipt of the claim. However, State X law permits the defense of lack of medical necessity to be raised at any time. The insurance policy contains no provision addressing this issue.
(1) Did the court correctly deny Phil’s motion for summary judgment on the issue of Donna’s negligence?
(2) Did the court correctly deny Phil’s motion for summary judgment on the issue of whether Phil suffered a serious injury?
(3) In Supply Inc.’s action against CarCo, which state’s law regarding the time for raising the defense of lack of medical necessity should the court apply?
Answer:
1. The issue is, whether the court correctly denied Phil's motion for summary judgment on the issue of Donna's negligence.
A motion for summary judgment may be granted, if there is no genuine issue as to material facts and a cause of action will be successful based on these facts as a matter of law. In deciding on a motion for summary judgment the court reviews the pleadings and the evidence, mostly affidavits but also depositions, in the most favorable light for the non-moving party. A person is liable for negligence, if the defendant (i) had a duty to act in a certain way, (ii) breached this duty by violating the standard of care of a reasonably prudent person, (iii) the person's acts were the actual and proximate cause of the damages, (iv) and the plaintiff proves damages. A person can be negligent, if this person violated a law that forbids the defendant's behavior, that seeks to prevent the class of injury the plaintiff suffered, and if the plaintiff actually suffered such injury. Such negligence is also called negligence per se. The violation of a rule of traffic may constitute such a breach of a duty.
Here, Donna crashed her car into Phil's car, while he was stopped at a red light. Both Phil and Donna testify that traffic was moving slowly, whereas Donna specifies that traffic was moving with around 10 to 15 miles an hour. Both parties state that Donna's car was driving behind Phil's car until the accident happened. Donna explains that she crashed into Phil's car because his car came to a 'sudden and abrupt stop.' She applied the brakes but was not able to stop the collision with Phil's car. Phil seems to agree to these facts. Under the traffic rules in NY, Donna has a duty to stop her car without crashing into another person's car, also if it is abruptly necessary. There is no such defense as a sudden stop that would justify her crash into Phil's car. She breached this duty, which seeks to prevent accidents and protect traffic participants from unforeseen crashes. The judge could rely for these undisputed facts on evidence of a deposition of Phil and a deposition of Donna. Since her breach of duty also is within actual and proximate cause, she would be liable for the damages caused to Phil as a matter law.
Thus, the court improperly denied Phil's motion for summary judgment for Donna acting negligent as a matter of law, because undisputed facts would allow this legal conclusion.
2. The issue is, whether the court correctly denied Phil's motion for summary judgment on the issue of whether Phil suffered a serious injury.
A motion for summary judgment may be granted, if there is no genuine issue as to Material facts and a cause of action will be successful based on these facts as a matter of law. In deciding on a motion for summary judgment the court reviews the pleadings and the evidence, mostly affidavits but also depositions, in the most favorable light for the non-moving party. Under New York law a plaintiff must first seek damages from his own no-fault insurance, if he is seeking damages for an accident that occurred during the operation of his car. No-fault insurance is compulsory for all automobile owners in New York State and is supposed to prevent unnecessary litigation between traffic participants. A person can claim up to $50,000 for damages occurred from an accident from his no-fault insurance. In order to overcome this limit, and in order to be able to sue another person involved in the traffic accident, the person needs to allege that he suffered a serious injury. A serious injury may be a physical dismemberment, the loss of a limb, or any injury that prevents the plaintiff from going to work in 90 out of 180 days after the accident.
In answer to (C) re: Basic similarity found in following provision in law of India and New York Law
[ In India:
Discussion on Motor Vehicles Act, 1988 India
http://law-projects.blogspot.com/2013/04/no-fault-liability-under-motor-vehicle.html
CHAPTER: - 3
NO FAULT LIABILITY UNDER MOTOR VEHICLE ACT, 1988 (India)
CHAPTER X
LIABILITY WITHOUT FAULT IN CERTAIN CASES
140. Liability to pay compensation in certain cases on the principle of no fault.- (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of [85] [fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of [86] [twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A.
In U.S. :
(taken from- http://insurance.lawyers.com/auto-insurance/death-and-no-fault-car-insurance.html)
Under a "no-fault" auto insurance system - also known as "personal injury protection" or "PIP" - the insurance company ("insurer"), automatically pays for some of a car accident victim's losses, including "death benefits," which include things like funeral and burial expenses.
These payments are made regardless of who was at fault for the accident.
In addition, some death benefits are often called "survivors benefits," because they are paid to the family or "dependents" the deceased person ("decedent"). These include:
~Accidental death benefits
~Continuation of lost earnings
~Periodic "pension" payments, and
~Replacement services payments
To recover no-fault death benefits, the decedent's death has to be directly and clearly connected to the use or operation of a motor vehicle.
Although the availability these benefits vary from state to state, most no-fault laws place limits on the amount of death benefits that will be paid. In addition, there are special rules for when payments will stop, as well as for claiming benefits.]
Thus, the court correctly denied Phil's motion for summary judgment on the issue of whether he suffered a serious injury, because he could go back to work earlier than required under the law, and he is therefore entitled to seek damages only from his insurance.
3. The issue is, which state's law regarding the time for raising the defense of lack of medical necessity the court should apply in Supply Inc.'s action against CarCo. New York conflict of laws rules follow a center of gravity analysis in insurance claims. In such an analysis the court assess where the insurance has been issued, where the insured party has her residence, where the insured incident occurred, where the claiming party is domiciled.
Here, Phil is domiciled in State X, CarCo, the insurance company that is the defendant in the underlying suit, is a State X insurance company, but also does business in New York. Phil purchased the insurance in State X and has is car garaged and registered in State X. The accident causing the damages to Phil occurred in New York and Phil purchased medical devices from Supply Inc., a New York corporation, and assigned his right to be reimbursed to Supply Inc. New York has a 30 day period for the receipt of claim, whereas State X has no such period and allows to make claims also later. Hence, there is no threat that Supply Inc. chose New York as a forum, because it wanted to choose the more preferable rules, i.e. forum shopping.
Thus, given that the center of gravity for this action is in New York, the court should apply New York law, without fearing that this is an incentive for forum shopping for other plaintiffs in the future.
