NYS Ins. Dep't: HMO lacks no-fault subrogee rights

The NYS Insurance Department recently issued an opinion letter dated January 28, 2008 indicating that, where an insured does not appeal a no-fault insurer's denial of benefits, an HMO as subrogee cannot proceed against the no-fault insurer under a claim of equitable subrogation. The opinion notes, however, that it was possible that the HMO may have "performed services that would bring it within the definition of a 'health service provider' under Insurance Law section 5102(a)(1)." Nonetheless, the Insurance Department noted that a recent decision (Health Ins. Plan of Greater New York v. Allstate Ins. Co., 2007 N.Y. Slip Op. 33925(U) (N.Y. Sup. Nov. 20, 2007)) held that an HMO was not a "provider of health care services" under 11 NYCRR section 65-3.11 and that an HMO has no right of equitable subrogation against an automobile insurer (but that it might have such a cause of action against the third-party tortfeasor). The Insurance Department concluded by noting that 11 NYCRR section 52.26 provides a no-fault exclusion that permits an HMO to "opt to exclude [no-fault] benefits from coverage" by contract.

Graham v. Dunkley is reversed

The 2d Department finally overruled this decision, which declared the Transportation Equity Act of 2005 ("TTEA") (which preempted state laws holding automobile leasing companies liable for torts involving the leased vehicle) to be an unconstitutional exercise of Congressional authority under the Commerce Clause. Now that Graham is finito, NYVTL section 388 is, without question, preempted. Another blow to advocates of the "power" of the Tenth Amendment.

http://abuffalolawyer.blogspot.com/2007/10/graham-v-redux-is-lone-wolf.html

http://abuffalolawyer.blogspot.com/2006/10/caveat-lessor-vicarious-liability.html

NDNY jury finds for automobile manufacturer

Webster Szanyi LLP recently obtained a defense verdict in federal court for a products liability case involving an automobile manufacturer. The verdict came after more than two weeks of trial, which saw NYSP personnel changing their testimony, surprise witnesses (plaintiffs' counsel identified before trial more than 40 witnesses that were not disclosed in discovery), and contested causation and accident reconstruction issues. None of which mattered in the end because the product was found to be not defective and the manufacturer not negligent. Lead counsel Kevin Szanyi eviscerated the opposing expert, who claimed to be an expert in "any machine," including cookie making machines, meat slicers, cars, boats, lighting conditions (for slip-n-fall cases), tanks, armored cars, etc. ABL is pictured sitting in the buc, a trial exhibit consisting of the cab section of the 1994 Dodge Dakota used by the defense expert for testing.