If you want to be a card-carrying InsuranceGeek®, one thing you must do is subscribe to the always-informative newsletter Coverage Pointers from the law firm of Hurwitz & Fine, P.C. Back in the day, if I wanted to track insurance-related court decisions in New York, I had to peruse the Web sites of the various appellate courts. Imagine my excitement when I found out that Dan Kohane and his staff of attorneys were doing it for me. Now I can sit back and wait for his e-mail to hit my in-box every other Friday (coincidentally, the day after pay day; I'm very fond of those weeks.)
The newsletter brought an interesting November 12 decision to my attention. It came out of the New York Supreme Court Appellate Division's Fourth Department, which has jurisdiction over the western half of the state. The case, McCann v. Harleysville Ins. Co. of New York, arose from the Buffalo area. Kara McCann was seriously injured in an accident involving a car in which she was a passenger. She sued and settled with the driver, then sought benefits from the driver's Supplementary Uninsured/Underinsured Motorist Coverage. The insurer (Harleysville) apparently had some doubt as to whether Ms. McCann actually suffered a serious injury (as defined by New York's no-fault insurance law) in the accident. Harleysville asked the court to compel her to disclose photographs and to grant the company authorization to view the contents of her Facebook account. The trial court said that this request was too broad, and the appellate court agreed.
Harleysville amended its request to make its scope narrower and went back to the trial court. Once again, the court said no. In addition, it granted McCann's request for a protective order to prevent the company' from seeking access to the Facebook page in the future. The company again appealed, and the Appellate Division in its November 12 opinion affirmed the trial court's ruling. Harleysville, the court said, failed to establish any facts showing that the Facebook page was relevant as evidence. "Indeed," according to the opinion, "defendant (Harleysville) essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence."
The bright side for the insurer was that the court reversed the trial court's decision to forbid it from seeking disclosure of the Facebook account in the future, calling it an abuse of the court's discretion. Should the company find a factual basis for believing that the Facebook page has relevant evidence, the court said it could make a third request for disclosure.
Insurance companies can and will use all sources of information available to them when underwriting risks and adjusting claims. Expect to see more fights like this in the future. For now, an insurer who wants to see what's on your Facebook page has to have a reason backed up by facts. As we all know, however, the law evolves, so this principle may change. Stay tuned.
Do you agree or disagree with the Fourth Department on this one? The comments section is open.