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October 3, 2019

Appellate Division Affirms Victory for Insurers by Precluding Claims Representative's Testimony

The Appellate Division, Fourth Department’s August 22, 2019 decision in McCulloch v. New York Central Mutual Insurance Company is significant for insurers whose claim professionals are facing depositions or trial testimony in supplementary uninsured or underinsured SUM cases.

In McCulloch, plaintiff Roberta McCulloch commenced an action for SUM benefits against her motor vehicle liability insurer, New York Central Mutual (NYCM), based on injuries she allegedly sustained in an accident. The jury, however, returned a verdict finding the accident was not a “substantial factor” in causing her injury. After the verdict, the trial court denied McCulloch’s motion to set aside the verdict against the weight of the evidence and entered judgment on the verdict. McCulloch appealed, raising various arguments, but the Fourth Department affirmed the judgment.

Among other grounds, the Fourth Department found the trial court did not err in precluding McCulloch from calling a NYCM claims representative to testify or from entering any proof of insurance at trial into evidence. McCulloch wanted to call a representative as a witness to answer questions regarding NYCM’s analysis of the claim and approach to the question of whether or not she suffered a “serious injury” pursuant to New York’s no-fault standard.

NYCM objected, arguing the representative was not necessary to establish the terms of the policy because it was undisputed that McCulloch carried applicable SUM coverage, and there was no bad-faith claim. NYCM also argued that the claims representative was not a doctor, had no personal knowledge of the facts, and was not qualified to testify as to whether or not McCulloch had suffered a “serious injury.” The trial court agreed. In affirming the trial court, the Fourth Department held that the “internal investigation and evaluation of the plaintiff’s claim” were irrelevant to the issue of whether McCulloch “suffered a serious injury which, along with the issue of whether any such injury was causally related to the accident, were the primary issues before the jury.”

The practical effect of the decision is that, absent a bad-faith claim, an insurance carrier’s opinion on “serious injury,” causation, settlement, or verdict value is irrelevant, and the testimony of a claims representative on those areas should not be required at trial.

If you have any questions regarding the content of this alert, please contact Jen Leonardi, partner, at, or another member of the firm’s Torts & Products Liability Defense or Insurance Coverage & Regulation Practice Areas.


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