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Special arbitration proceeding - Insurance claim after respondent allegedly injured in hit and run accident - Leg and hip injuries and oblique fracture to foot - Respondent was intoxicated and could not remember the incident - Petitioner denied claim, stating injuries were the result of an assault and therefore not covered under the subject policy.

Suffolk County, NY

This insurance case proceeded to arbitration with the respondent’s allegation that on the night in question, he was involved in a hit and run accident. He sought recovery from the petitioning insurance company and contended that while he was intoxicated to the point of retaining no memory of the night, the evidence showed he was involved in a motor vehicle accident. The petitioner claimed the respondent failed to give notice of the alleged motor vehicle accident within 24 hours of the accident and that the respondent failed to establish he had in fact come into contact with a motor vehicle, all conditions upon which recovery would be granted under the subject policy. The petitioner sought a permanent stay of arbitration based on its claims that the policy requirements had not been met.

Both parties agreed that on the night of October 13, ________, the male respondent began an evening of drinking, first at a friend’s home and then at two local bars. The respondent testified that his only recollections of the night were consuming a beer at a friend’s house, proceeding to a local bar and having three or four more beers, and then consuming a beer and "some" shots at the last bar. The next event he testified to remembering was waking up in his own bed the following day at approximately 3:00 p.m., at which time he fell on his face and injured his nose.

Two of the bartenders working at the last bar on the night in question testified before the court and both stated the respondent was intoxicated when he arrived at the bar and was so intoxicated at one point in the night that they refused to serve him any more alcohol. They testified they later found him, barely conscious, under some bushes and tree branches by the bar with his pants ripped and wearing only one shoe. The bartenders stated that when they were able to wake the respondent, he began complaining his ankles hurt. They then put him in the back of their pickup truck and drove him home.

It was the bartenders’ contention that while walking the respondent into his home, they let go of him and he fell face first onto the floor. The respondent’s wife corroborated these events and testified the bartenders brought her husband home at approximately 3:30 a.m. She testified he was holding his pants up and that his belt was hanging off. She claimed it appeared he may have been in a fight, but that he did not have any noticeable injuries or blood on him at the time.

The respondent’s wife claimed that on the following day, she returned from work at approximately 1:00 p.m. and found her husband yelling in pain with a swollen and bleeding nose. She claimed it was then that she noticed bruises on his ankles and legs. The respondent’s wife called a friend who worked as a paramedic, who upon arriving at the house, summoned an ambulance.

At the hospital, the paramedic told the emergency room staff he believed the respondent had been assaulted the night before. Yet, before the court, the paramedic testified that he changed his opinion and now believed the respondent sustained injuries as a result of being struck by an automobile. Specifically, he opined the injuries to his foot and toe were from being run over by a car and that his hip and leg injuries were from being struck by a vehicle, although he could not say for sure.

The respondent’s treating physician additionally testified and opined that while the respondent told him he may have been involved in an assault, he believed the injuries were not consistent with an assault in the absence of defensive bruising to the arms. Both parties presented expert testimony, with the respondent’s expert claiming the logical assertion, based on the respondent’s injuries, was that upon exiting the bar, the respondent’s belt became caught on a vehicle being driven by a hit and run driver at a high rate of speed and that the respondent was subsequently dragged 40 or 50 feet through the parking lot.

The petitioner’s expert witness stated it was inconceivable that the injuries sustained by the respondent resulted from a single mechanism such as a hit and run driver. He opined that the respondent’s hematoma patterns were inconsistent with an automobile running over him. The expert witness additionally opined that a vehicle strike would have resulted in a fracture of the pelvis or femur and a transverse fracture of the toe, rather than an oblique fracture as was found. It was his belief that the respondent sustained his injuries during an assault.

Finding that the respondent did not meet the burden of proof in establishing that his injuries resulted from contact with a motor vehicle, and additionally finding that the petitioner’s expert came to a more credible and better supported opinion, the court ruled in favor of the petitioner in this matter, granting its request for a permanent stay of arbitration.

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