Breaking with the First Department, the Second Department has held that an insurance company that claims it never issued a policy to an allegedly uninsured motorist only has to do a diligent search of its records and does not have to produce the motorist as a witness.

Travelers commenced this proceeding to permanently stay arbitration of an uninsured motorist claim, arguing that the offending vehicle was covered by an automobile insurance liability policy issued by either Allstate or Metropolitan Property and Casualty Insurance Company. A framed-issue hearing was held at which Allstate presented the testimony of one of its underwriters who detailed the name, address, and vehicle searches she conducted to determine if Allstate insured the offending vehicle at the time of the accident. Computer printouts corroborating the search results were also admitted into evidence.

Nonetheless, Supreme Court, Kings County, held that Allstate did not meet its burden. Allstate appealed.

The Second Department held, This evidence of an exhaustive search of the appellants records disclosing that no policy of insurance was ever issued to the offending vehicle was sufficient to rebut the petitioners prima facie showing of coverage. To the extent that the Appellate Division, First Departments decision in Highlands Ins. Co. v. Baez (18 AD3d 238) can be read to hold that the appellant was required to attempt to locate the owner of the offending vehicle by telephone or letter or to compel her appearance at the hearing, we decline to follow it. It is properly the burden of the insurer for the claimant seeking uninsured motorist coverage, not the disclaiming insurance company, to produce this type of additional evidence of coverage once sufficient evidence, i.e., the exhaustive search, is introduced to rebut the prima facie case. Since the petitioner did not submit any additional proof of insurance coverage following the appellants rebuttal of its prima facie case, the hearing court improperly granted the petition to stay arbitration.

Comment: Proving a negative, i.e., proving that something didnt happen, is much harder than proving that it did. The Appellate Division made a sensible decision here. [IA]

In the Matter of Travelers Indemnity Company v. Eduardo A. Machado and Allstate New Jersey Insurance Company (Index No. 32619/04) (2d Dept 2006)