Non-Contact Case on Motion: Driver and Passenger Affidavits Establish No Insured Incident (Compas v USAA)

Key Takeaways

• Affidavits from the insured driver and her passenger stating the vehicle never struck the pedestrian were sufficient prima facie proof that the alleged injuries did not arise from an insured incident.
• The governing standard comes from Central Gen. Hosp. v Chubb: a carrier may assert a lack-of-coverage defense premised on the fact or founded belief that the injury did not arise from a covered accident.
• Once the carrier makes that showing, the burden shifts to the provider to raise a triable issue that a covered incident occurred.
• The no-contact defense is not subject to the 30-day preclusion rule, making it one of the most durable defenses in no-fault litigation.

Understanding the No-Contact Defense in No-Fault Insurance Cases

In New York’s no-fault insurance system, medical providers often file lawsuits seeking payment for treatment provided to patients injured in motor vehicle accidents. However, insurance companies can defend against these claims by arguing that no covered incident actually occurred. One of the most straightforward defenses involves establishing that there was no physical contact between the insured vehicle and the injured party.

The Appellate Term decision in Compas Med., P.C. v United Servs. Auto. Assn. illustrates how defendants can successfully challenge no-fault insurance claims when they can demonstrate that no contact occurred between their insured vehicle and the allegedly injured person.

The Decision

Jason Tenenbaum’s Analysis:

Compas Med., P.C. v United Servs. Auto. Assn., 2018 NY Slip Op 50764(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured’s passenger also submitted an affidavit, in which she stated that the insured vehicle had not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that “the alleged injur do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 ; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126, 2009 NY Slip Op 52601 ; Midwood Med. [*2]Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139, 2009 NY Slip Op 52379 ). “

The Legal Framework: Chubb and the Founded-Belief Defense

The Court of Appeals in Central General Hospital v Chubb Group drew a line that still organizes no-fault defense work. Most defenses — medical necessity, fee schedule, late billing — are subject to the 30-day pay-or-deny rule and are precluded if the carrier fails to deny timely. But a defense that the alleged injury does not arise out of an insured incident stands outside the preclusion regime, because it goes to whether there was ever coverage at all.

A no-contact case is the cleanest version of that defense. If the insured vehicle never touched the claimant, there was no “accident” involving that vehicle, no occupant or pedestrian claim against the policy, and nothing for the no-fault endorsement to cover. The carrier’s proof problem is purely evidentiary: how do you establish a negative — no contact — on a motion? Compas answers that question. Sworn affidavits from the people in the vehicle, each denying any contact, satisfy the carrier’s prima facie burden.

The provider, who typically was not at the scene and stands in the shoes of its assignor, must then come forward with admissible evidence that contact did occur — usually an affidavit from the assignor. Silence, or attorney argument alone, ends the case.

Why This Matters for Carriers, Providers, and Claimants

For carriers and defense counsel, Compas validates an economical motion strategy. Two short eyewitness affidavits — driver and passenger — did the work, without accident reconstruction or an SIU file. Because the defense survives even an untimely denial, it remains available in stale files where preclusion has wiped out everything else. When the defense is properly substantiated, the litigation posture shifts dramatically in the carrier’s favor.

For medical providers, the case is a sober reminder of assignment risk: the provider’s right to payment is only as good as the assignor’s underlying claim. Before investing in litigation over a staged-accident or phantom-contact file, provider counsel should secure the assignor’s cooperation, because only the assignor can rebut the carrier’s eyewitness affidavits.

For genuinely injured pedestrians, the decision underscores the importance of contemporaneous documentation — police reports, ambulance records, and witness information gathered at the scene — that corroborates contact when the insured later denies it.

Practice Pointers

• Carriers: Obtain affidavits from every occupant of the insured vehicle, each specifically denying contact with the claimant. Track the Chubb “insured incident” language.
• Provider counsel: Oppose with an affidavit from the assignor describing the contact; an attorney affirmation cannot raise the issue of fact.
• Both sides: Remember that the founded-belief defense is preclusion-proof, so the usual timeliness battles over the denial do not control the outcome.

Frequently Asked Questions

What is the no-contact defense in a New York no-fault case?

It is a lack-of-coverage defense asserting that the insured vehicle never came into contact with the claimant, so the alleged injuries did not arise out of an insured incident under Central Gen. Hosp. v Chubb. Because it goes to coverage itself, it is not precluded by an untimely denial.

What evidence does an insurer need to win a no-contact case on motion?

In Compas Med. v USAA, affidavits from the insured driver and her passenger — each swearing the vehicle did not strike the pedestrian — were sufficient prima facie proof. The burden then shifted to the plaintiff provider to show a covered incident occurred.

How can a medical provider defeat a no-contact motion?

With admissible evidence that contact actually occurred — most directly, a sworn affidavit from the assignor (the injured person) describing the collision. Without it, the carrier’s eyewitness affidavits typically carry the motion.

Related Resources

• A formulation of a prima facie case — the firm’s cluster hub on prima facie proof in no-fault litigation
• The firm’s Legal Encyclopedia
• No-Fault Defense practice page
• Pedestrian Contact Defense in New York Personal Injury Cases
• The pedestrian knockdown case
• Proof of no collision