Savino v Hartford
2009 NY Slip Op 50784(U) [23 Misc 3d 1116(A)]
Decided on March 25, 2009
Supreme Court, Suffolk County
Sgroi, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 25, 2009
Supreme Court, Suffolk County

Laura Savino, Plaintiff,


The Hartford, Defendant.



Attorney for Plaintiff

1010 Franklin Avenue, 2nd Floor

Garden City, New York 11530


Attorney for the Defendant

926 Rex Corp Plaza

Uniondale, New York 11556-0926

Sandra L. Sgroi, J.

ORDERED that the motion of the Defendant, The Hartford, for summary judgment is granted only to the extent that the claim for punitive damages in the complaint of the Plaintiff, Laura Savino, is dismissed; and it is further

ORDERED that the motion to dismiss the claim in the complaint for extra-contractual damages and compensatory damages is denied with leave to renew after all discovery has been completed and the note of issue has been filed.

On September 11, 2007, while the vehicle that the Plaintiff's was operating was stopped at a traffic light, a garbage truck and a lumber truck were involved in an accident with each other and, after that initial contact between the two trucks, the garbage truck struck the Plaintiff's vehicle. The Plaintiff alleges that she injured her left shoulder and her right knee in this accident. The Court does not have a copy of the accident report from this occurrence or any documentation concerning the Plaintiff's treatment after the accident occurred with the exception of the reports and letters submitted by the Plaintiff in opposition to this motion for summary judgment by the Defendant, The Hartford.

On this motion, the Defendant's attorney alleges that the Plaintiff is not entitled to recover for any extra- contractual damages including non-economic losses for pain and suffering and that Plaintiff's recovery is limited to the coverage available under the policy even if the refusal to provide first party benefits was incorrect.

The attorney for the Plaintiff alleges that the injuries that she incurred required her to have surgery on April 28, 2008, on her left shoulder which is approximately eight months after the September 2007 accident. Her attorney also alleges that she requires surgery on her right knee as a result of the injuries incurred in the motor vehicle accident but that this surgery cannot be scheduled because the Defendant insurance company has refused to pay for the hospital, surgical and anesthesia expenses incurred from the left shoulder surgery. Further, according to the Plaintiff's attorney, the Defendant has closed its no fault file with regard to any further orthopaedic expenses incurred by the Plaintiff because of a report that was prepared by Raghava R. Polavarapu, M.D., a doctor who is Board certified in orthopaedic surgery and who was hired by the Defendant to examine the Plaintiff. The report was paid for by The Hartford and it was drafted by Dr. Polavarapu after he examined the Plaintiff.

According to Dr. Polavarapu, an examination by him of the Plaintiff conducted on February 12, 2008, revealed significant restricted range of motion in Savino's left shoulder and "a mild defect" in the internal rotation of that shoulder (Plaintiff's Exhibit "2"). Dr. Polavarapu also stated that the Plaintiff's right knee demonstrated joint tenderness with some decrease in flexion range of motion. From these observations, Dr. Polavarapu found that the Plaintiff's prognosis was good, her knee sprain/strain was resolved, her left shoulder sprain/strain was resolving and that physical therapy should be continued twice a week for six weeks, at which time the Plaintiff [*2]should be re-evaluated.

According to the Plaintiff's attorney, the sole reason for the refusal to pay for the expenses of the surgery that was performed on Plaintiff's left shoulder at North Shore University Hospital was the conclusions in Dr. Polavarapu's written report. Although Dr. Polavarapu recommended that the Plaintiff be re-examined in six weeks in his initial report, the insurance company did not have the Plaintiff re-examined by any physician. Dr. Polavarapu prepared several addendums to the report after the issue of the surgery on Plaintiff's left shoulder arose but neither the report nor those addendums specifically addressed the numerous medical records submitted for review that contained opinions or data at odds with the conclusion of Dr. Polavarapu in any detail nor did it cite any treatises to support his conclusions which were contrary to Plaintiff's treating physician(see Plaintiff's Exhibit "6").

After the surgery on the left shoulder was performed in April 2008 and the conflict over the reimbursement of the treating physicians herein crystalized, Dr. Polavarapu issued an addendum to his report on May 6, 2008, that stated in conclusory fashion that "there is no need for left shoulder surgery at this point in time." Dr. Polavarapu prepared another letter on May 20, 2008, in which he stated, in part, "(u)pon your request, a peer review was performed on the above-captioned claimant in regard to date of service April 28, 2008 for provider North American Partners in Anesthesia and Richard S. Obedian, M.D." and "there was no causally related medical justification for the operative intervention to the left shoulder and/or for associated fees and services, i.e. anesthesia, in this regard." The letter, with Dr. Polavarapu's opinion, concluded that "(a) causally related medical necessity has not been established for the operative intervention to the left shoulder and/or for the associated fees and services."

The attorney for the Plaintiff argues that the purpose of the enactment of the no-fault law was to provide protection to those individuals injured in motor vehicle accidents and that the underlying purposes of the no-fault law are jeopardized by the actions of the Defendant in this case thus justifying an award of punitive damages.

Summary judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of a triable issue (see, Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923; Bennett v Knipfing, 262 AD2d 260, 692 NYS2d 403). The Court will not determine issues of credibility or the probability of success on the merits on a motion for summary judgment, and issue finding rather than issue determination is the key to summary judgment (Grahm v Columbia-Presbyterian Medical Center, 185 AD2d 753, 588 NYS2d 2). If material facts are in dispute or if different inferences may reasonably be drawn from the facts or testimony, a motion for summary judgment must be denied (see, Gusek v Compass Transp. Corp., 266 AD2d 923, 697 NYS2d 886; McShane v Foster, 235 AD2d 462, 652 NYS2d 1004; Morris v Lenox Hill Hosp., 232 AD2d 184, 647 NYS2d 753, aff'd 90 NY2d 953, 665 NYS2d 399). The decision to grant or deny summary judgment is based on the facts in the entire record and not simply the pleadings (see, McIntyre v State, 142 AD2d 856, 530 NYS2d 898), and these facts must be analyzed in a light most favorable to a non-moving party, here the Plaintiff (Jastrzebski v North [*3]Shore School District, 223 AD2d 677, 637 NYS2d 439).

The movant, the Defendant, has the initial burden of showing a prima facie right to judgment (see, Deer Park Enterprises, LLC v. AIL Systems, Inc., 46 AD3d 504, 846 NYS2d 581). In support of this summary judgment motion, the Defendant has submitted an affirmation from an attorney and a memorandum of law. The Defendant states that the "Plaintiff is not entitled to recover extra-contractual damages, including non-economic damages for pain and suffering, for the alleged breach of an insurance contract." According to the Defendant, "recovery is limited to the coverage available under the policy." The Defendant has chosen to not move for judgment on the facts, but instead is arguing that, as a matter of law, the Plaintiff is not entitled to either punitive damages or compensatory damages in this action under New York law.

The New York Court of Appeals in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York,in permitting a claim for consequential damages in a complaint brought by an insured against its insurer, (10 NY3d 187, 856 NYS2d 505, 886 NE2d 127) stated that:

It is well settled that in breach of contract actions "the nonbreaching party may recover general damages which are the natural and probable consequence of the breach" (Kenford Co. v. County of Erie, 73 NY2d 312, 319, 540 NYS2d 1, 537 NE2d 176). Special, or consequential damages, which "do not so directly flow from the breach," are also recoverable in limited circumstances ( American List Corp. v. U.S. News & World Report, 75 NY2d 38, 43, 550 NYS2d 590, 549 NE2d 1161).

There was a dissent in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York wherein Judge Smith stated:

In Rocanova v. Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 612 NYS2d 339, 634 NE2d 940 (1994) and New York Univ. v. Continental Ins. Co., 87 NY2d 308, 639 NYS2d 283, 662 NE2d 763 (1995) ( NYU), we rejected the argument that a bad faith failure by an insurer to pay a claim could, without more, justify a punitive damages award. We held that punitive damages are not available for breach of an insurance contract unless the plaintiff shows both "egregious tortious conduct" directed at the insured claimant and "a pattern of similar conduct directed at the public generally" ( Rocanova, 83 NY2d at 613, 612 NYS2d 339, 634 NE2d 940; see NYU, 87 NY2d at 316, 639 NYS2d 283, 662 NE2d 763). Today, the majority abandons this rule, without discussing it and without acknowledging that it has done so. The majority achieves this simply by changing labels: Punitive damages are now called "consequential" damages, and a bad faith failure to pay a claim is called a breach of the "covenant of good faith and fair dealing."

In discussing this case, the treatise New York Practice Series(4 N.Y.Prac., Com. Litig. in New York State Courts § 60:22 ) states:

In New York, "the standard for awarding punitive damages in first-party insurance actions is a 'strict one' and this extraordinary remedy will be available 'only in a [*4]limited number of instances.' "[footnote omitted ] Generally, punitive damages are not recoverable for an ordinary breach of contract "as their purpose is not to remedy private wrongs but to vindicate public rights." Rocanova sets a standard of egregious conduct, plus impact on the public interest, allowing punitive damages only when "the breach of contract also involves a fraud evincing a 'high-degree of moral turpitude' and demonstrating 'such wanton dishonesty as to imply a criminal indifference to civil obligations', [and] the conduct was 'aimed at the public generally' ."[FN1]

In this matter, the allegations of bad faith or fraud are not pled in a conclusory fashion nor is the complaint insufficient to support any cause of action against The Hartford (see, Batas v. Prudential Ins. Co. of America, 281 AD2d 260, 724 NYS2d 3). There is no allegation much less proof that the Plaintiff has exhausted her no fault benefits under the contract of insurance issued by the Hartford and that this would justify a denial of benefits to the Plaintiff by the Defendant (see, U.S. Fidelity & Guar. Co. v. Pressler, 158 AD2d 419, 551 NYS2d 921 order reversed by 77 NY2d 921, 569 NYS2d 597, 572 NE2d 38). In light of the decision in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York (supra ), a recovery for compensatory damages may be viable. The Court will, therefore, deny the motion to dismiss the compensatory damages claim with leave to renew, if warranted, after discovery in this action has been completed.

The purpose of the no-fault law has been summarized in New York Jurisprudence 2nd (70A NY Jur. 2d Insurance § 1774):
The purposes of this statute were to remove a vast majority of claims arising from vehicular accidents from the sphere of common-law tort litigation, and to establish a quick, sure, and efficient system for obtaining compensation for economic loss suffered as a result of such accidents. It has been stated that the two basic purposes of the no-fault law are: (1) to compensate for basic economic loss without recourse to the court; and (2) to limit tort recovery so as to insure that there will be no duplicate compensation for such loss. The enactment of the Act serves the dual purpose of assuring that accident victims received compensation for their economic loss and of restricting the cost of rising automobile insurance [*5]policy premiums. The Act's primary purpose is to afford rapid payment of benefits without regard to fault and without the necessity of hiring an attorney to represent the claimant. Double recovery is not contemplated under the no-fault statutory scheme; the purpose of such scheme is to make whole an injured party, not to provide him with a windfall. The no-fault law was not designed to provide a windfall for insurance companies by taking away common-law rights of the injured party and putting in its place forced insurance premiums for extra coverage to protect the injured party against the effect of another's negligence.

While the allegations in the complaint and the affirmation of the attorney for the Plaintiff do not allege either "wanton dishonesty as to imply a criminal indifference to civil obligations" on the part of the Defendant or that the salutary purposes of New York Insurance Law Article 51 are in danger of being undermined by the actions of the Defendant as required to support punitive damages (4 N.Y.Prac., Com. Litig. in New York State Courts § 60:22), the complaint and the papers submitted as part of this record do support a finding that The Hartford's conduct was possibly a breach of good faith and fair dealing.

Since the complaint together with the exhibits submitted on this motion do not support the claim for punitive damages, the motion to dismiss that demand for relief must be granted. A review of the record does however support the claim for compensatory damages and the portion of the Defendant's motion to dismiss the claim for extra-contractual damages must be denied.

Therefore, the motion of the Defendant for summary judgment will be granted only to the extent that the claim for punitive damages will be dismissed (see, Rocanova v. Equitable Life Assurance Society, 83 NY2d 603, 612 NYS2d 339, 634 NE2d 940; Silverman v. State Farm Fire & Cas. Co., 22 Misc 3d 591, 867 NYS2d 881; Handy & Harman v. American Intern. Group, Inc., 2008 WL 3999964, 2008 NY Slip Op. 32366U, Trial Order; State Insurer Bad Faith Law after 'Bi-economy' and 'Panasia', 3/17/2009 NY L. J. 4, col. 1, 4, 2009).

Discovery should now commence but this Court will not permit the Plaintiff to engage in discovery based upon speculation and the demands for documents served should be restricted to the parties and persons involved in this litigation.

Dated: March 25, 2009________________________SANDRA L. SGROI, J. S. C.

Footnote 1:The majority in Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, in comparing consequential damages and punitive damages, stated that

"The two types of damages serve different purposes and are evidenced by different facts. Consequential damages, designed to compensate a party for reasonably foreseeable damages, must be proximately caused by the breach'" and must be proven by the party seeking them (24 Lord, Williston on Contracts § 64:12, at 125 [4th ed.] ). Punitive damages, by contrast, are not measured by the pecuniary loss or injury of the plaintiff as a compensation" but are "assessed by way of punishment to the wrongdoer and example to others' (11 Perillo, Corbin on Contracts § 59.2, at 550 [rev.ed.] )."