XI. Insurance

I. INSURANCE POLICY

Elements to prove:

  1. a contract for insurance;
  2. of indemnity to the insured;
  3. such as the insured is entitled to compensation;
  4. for such losses caused by the perils insured; and
  5. against the right to recover being equal to the loss sustained.

II. INSURANCE BROKER LIABILITY

Elements to prove from an insurance broker for failing to obtain appropriate or sufficient coverage:

  1. a special relationship exists where
    1. broker received compensation from the insured, other than a commission; or
    2. there was a discussion between the broker and insured regarding coverage where the insured relied upon the broker’s expertise or advice; or
    3. a course of dealing existed indicating reasonable notice to the broker that his or her advice was sought and relied upon;
  2. the broker did not provide the appropriate or sufficient coverage; and
  3. the insured was damaged.

III. INSURANCE BROKER MALPRACTICE

Elements to prove for damages arising from an insurance broker’s malpractice or breach of contract:

  1. against a broker;
  2. based on the broker’s failure to procure a particular type of coverage;
  3. plaintiff made a specific request; and
  4. the request was to the broker for that coverage.

IV. INSURANCE CARRIER DEFRAUDED OR EXPLOITED

Elements to prove:

  1. the policy issued to the insured is rendered void where;
  2. the insured has willfully and fraudulently;
  3. placed in the proofs of loss;
  4. a statement of property lost that
    1. it did not possess; or
    2. has placed a false and fraudulent value upon the articles it did own.

V. INSURANCE CARRIER SUPPLYING DEFENSE OF SUIT

Elements to prove:

  1. the underlying complaint;
  2. when liberally construed;
  3. sets forth any claim;
  4. reasonably said to fall within;
    1. coverage of insurance policy; or
    2. if carrier has actual knowledge of facts that tend to establish reasonable possibility of coverage.

VI. INSURANCE CARRIER’S BAD FAITH

Elements to prove, when carrier refuse to settle:

  1. the insurance carrier’s conduct;
  2. constituted a gross disregard;
    1. that the insurer engaged in a pattern of behavior evincing a conscious or knowing indifference;
    2. to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted;
  3. of the policyholder’s interests.

VII. INSURANCE CLAIM WRONGFULLY DELAYED OR DENIED

Elements to prove a disclaim liability or deny coverage for injury under an insurance policy, the insurer must prove:

  1. provide written notice;
  2. as soon as is reasonably possible; and
  3. provide the reason for such disclaimer of liability or denial of coverage.

VIII. INSURANCE POLICY RESCISSION

Elements to prove in order to establish the rescission of an insurance policy:

  1. insured made;
  2. a material;
  3. misrepresentation, regardless of innocence or intent to deceive, so that;
  4. plaintiff would not have issued the policy; and
  5. if it knew the misrepresented facts.

IX. INSURANCE POLICY TERMINATED WITHOUT NOTICE TO INSURED

Elements to prove:

  1. in absence of proper notice of cancellation;
  2. insurer was required;
  3. to provide coverage for insured.

X. INSURER WRONGFULLY DISCLOSING CONFIDENTIAL INFORMATION

Elements to prove:

  1. disclosing;
  2. confidential information;
  3. of an insured to;
    1. third parties; or
    2. for inducing physicians to disclose confidential information.

XI. LIFE OR HEALTH INSURANCE OBTAINED BY FRAUD

Elements to prove that insurer is not liable:

  1. for payments on;
  2. a life or health insurance policy;
  3. where the insured;
  4. made material misstatements;
  5. on the application for insurance.

XII. NEW YORK STATE PROMPT PAY LAW

Elements to prove:

  1. there is a reasonably;
  2. clear and non-fraudulent;
  3. bill or obligation to pay.

XIII. SUBROGATION

Elements to prove:

  1. an insurer;
  2. having paid losses of its insured;
  3. is placed in the position of its insured;
  4. so that it may recover from the third party;
  5. that is legally responsible for the loss.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.