“From Syracuse to New York City, we’ve observed motions based on various legal opinions where (insurance) companies are consistently losing,” said shop owner Mike Orso, referring to the Mid Island Collision case for Champerty that Allstate lost in Nassau County Court in May 2010 (MVB Collision v. Allstate Ins. Co. (2009 NY Slip Op 29251) and other cases where names are protected by confidentiality agreements.
In the most recent case a motion found it’s way to the Syracuse City Court calendar when Nationwide Insurance decided to file a motion to dismiss on, “standing.” Nationwide argued their policy strictly prohibits assignments. Orso’s attorney, Joseph R. Talarico, argued that “post-loss” assignment was well established in New York case law.
In the most recent decision, Syracuse City Court Judge Rory A. McMahon denied Nationwide’s motion to dismiss on “standing” citing specific case law and also citing a previous case that Nick Orso’s Body Shop had prevailed in, in State Supreme Court in Onondaga County in June 2010.
In that case, Nick’s Garage Inc. dba Nick Orso’s Body Shop and Service Center v. Adirondack Ins. Exchange, Index #2008- 9681,5 (County Court Onondaga 2010) created case law. In the Nick’s v. Adirondack Ins. case, Adirondack filed a motion for basically the same subject, “standing.” Adirondack argued that the policy couldn’t be assigned. Supreme Court, Judge William D. Walsh agreed with that provision “pre-loss” but opined that “post-loss” assignments were allowed and wrote: “The New York Court of Appeals held as long ago as 1858 that “post-loss” anti-assignment clauses in insurance policies are NOT binding. It is, indeed, well settled in New York law that enforceability of anti-assignment clauses in insurance contracts are limited, in that as a general matter such provisions are valid with respect to pre-loss assignments, but NOT with respect to post-loss assignments. New York is among the majority of jurisdictions in the United States which allow post loss assignments.”
Mike Orso said, “I think it’s a forgone conclusion that assignments are a battle (insurance companies) won’t win, it appears they just like to fight. The “three D defense” is alive and well: deny, delay and defend. It would make sense to negotiate a settlement and settle these claims at the time of repair.”
Ed Kizenberger, executive director of the New York State Auto Collision Technicians Association, (NYSACTA), said, “These recent court decisions send a strong message that the justice system understands our issues when asked to make decisions that will help consumers and repairers get properly compensated. Our industries responsibility initially was to do a proper repair, it is unfortunate that it has become necessary to go to court to be paid. We applaud all repairers who have chosen this difficult path to protect their customers interest in getting a proper and safe repair”.
Mike Orso, president of the NYSACTA, said his body shop is not involved in any direct repair program (DRP) programs. “Nick Orso’s is a 57 year old collision repair shop and for 57 years our focus has not changed. We don’t believe the insurance company is the expert. Their estimate is an offer of payment, period. Since the shop holds the liability in a repair and is responsible to the customer for every detail of that repair, we’ll continue to make our own repair decisions based on manufacturer recommended repair procedures or techniques that render the best results. If (insurance companies) are willing to work (with) us, great; if not, we use the process we’ve developed for collecting the short pays. Many (insurance) companies have come around and are willing to settle during the repair. It just took them a few trips to court to know we were serious.”
In the most recent case, Nick Orso’s filed a cross motion for bad faith. The judge did not agree that Nationwide's motion for dismissal of the case amounted to bad faith and he denied the shop's request to have court and attorney costs paid for by the insurer.
“We are deciding whether to appeal the cross motion,” Mike Orso said. “When case law cites over and over supporting our position, it’s my opinion the action of insurers is more of an exercise of holding back the flood waters.”
“From Syracuse to New York City, we’ve observed motions based on various legal opinions where (insurance) companies are consistently losing,” said shop owner Mike Orso, referring to the Mid Island Collision case for Champerty that Allstate lost in Nassau County Court in May 2010 (MVB Collision v. Allstate Ins. Co. (2009 NY Slip Op 29251) and other cases where names are protected by confidentiality agreements.
In the most recent case a motion found it’s way to the Syracuse City Court calendar when Nationwide Insurance decided to file a motion to dismiss on, “standing.” Nationwide argued their policy strictly prohibits assignments. Orso’s attorney, Joseph R. Talarico, argued that “post-loss” assignment was well established in New York case law.
In the most recent decision, Syracuse City Court Judge Rory A. McMahon denied Nationwide’s motion to dismiss on “standing” citing specific case law and also citing a previous case that Nick Orso’s Body Shop had prevailed in, in State Supreme Court in Onondaga County in June 2010.
In that case, Nick’s Garage Inc. dba Nick Orso’s Body Shop and Service Center v. Adirondack Ins. Exchange, Index #2008- 9681,5 (County Court Onondaga 2010) created case law. In the Nick’s v. Adirondack Ins. case, Adirondack filed a motion for basically the same subject, “standing.” Adirondack argued that the policy couldn’t be assigned. Supreme Court, Judge William D. Walsh agreed with that provision “pre-loss” but opined that “post-loss” assignments were allowed and wrote: “The New York Court of Appeals held as long ago as 1858 that “post-loss” anti-assignment clauses in insurance policies are NOT binding. It is, indeed, well settled in New York law that enforceability of anti-assignment clauses in insurance contracts are limited, in that as a general matter such provisions are valid with respect to pre-loss assignments, but NOT with respect to post-loss assignments. New York is among the majority of jurisdictions in the United States which allow post loss assignments.”
Mike Orso said, “I think it’s a forgone conclusion that assignments are a battle (insurance companies) won’t win, it appears they just like to fight. The “three D defense” is alive and well: deny, delay and defend. It would make sense to negotiate a settlement and settle these claims at the time of repair.”
Ed Kizenberger, executive director of the New York State Auto Collision Technicians Association, (NYSACTA), said, “These recent court decisions send a strong message that the justice system understands our issues when asked to make decisions that will help consumers and repairers get properly compensated. Our industries responsibility initially was to do a proper repair, it is unfortunate that it has become necessary to go to court to be paid. We applaud all repairers who have chosen this difficult path to protect their customers interest in getting a proper and safe repair”.
Mike Orso, president of the NYSACTA, said his body shop is not involved in any direct repair program (DRP) programs. “Nick Orso’s is a 57 year old collision repair shop and for 57 years our focus has not changed. We don’t believe the insurance company is the expert. Their estimate is an offer of payment, period. Since the shop holds the liability in a repair and is responsible to the customer for every detail of that repair, we’ll continue to make our own repair decisions based on manufacturer recommended repair procedures or techniques that render the best results. If (insurance companies) are willing to work (with) us, great; if not, we use the process we’ve developed for collecting the short pays. Many (insurance) companies have come around and are willing to settle during the repair. It just took them a few trips to court to know we were serious.”
In the most recent case, Nick Orso’s filed a cross motion for bad faith. The judge did not agree that Nationwide's motion for dismissal of the case amounted to bad faith and he denied the shop's request to have court and attorney costs paid for by the insurer.
“We are deciding whether to appeal the cross motion,” Mike Orso said. “When case law cites over and over supporting our position, it’s my opinion the action of insurers is more of an exercise of holding back the flood waters.”
