"From Syracuse to New York City, we've observed motions based on various legal opinions where [insurers] are consistently losing," Orso says, referring to the Mid Island Collision case where Allstate lost in Nassau County Court in May 2010 (MVB Collision vs. Allstate Ins. Co. – 2009 NY Slip Op 29251) and other cases he has won.

In the most recent case, Nationwide filed a motion to dismiss on "standing" with the Syracuse City Court, arguing that its policy strictly prohibits assignments. Orso's attorney, Joseph Talarico, argued that "post-loss" assignment was well established in New York case law, citing a recent decision he won on the same basis. 

Syracuse City Court Judge Rory A. McMahon denied Nationwide's motion to dismiss on "standing," citing specific case law and also a previous case Nick Orso's had won in the State Supreme Court in Onondaga County in June 2010. In that case (Nick's Garage, Inc. dba Nick Orso's Body Shop and Service Center vs. Adirondack Ins. Exchange, Index #2008-9681,5 – County Ct. Onondaga 2010), Adirondack filed a similar motion on "standing," arguing that the policy couldn't be assigned. Supreme Court Judge William D. Walsh agreed with that provision "pre-loss," but opined that "post-loss" assignments were allowed and wrote:

The New York Court of Appeals held as long ago as 1858 that "post-loss" anti-assignment clauses in insurance policies are NOT binding. It is, indeed, well settled in New York law that enforceability of anti-assignment clauses in insurance contracts are limited, in that as a general matter such provisions are valid with respect to pre-loss assignments, but NOT with respect to post-loss assignments. New York is among the majority of jurisdictions in the United States which allow post-loss assignments.

Orso filed a cross motion for bad faith. The judge did not agree, however, that Nationwide's motion for dismissal amounted to bad faith and therefore denied Orso's request to have court and attorney costs paid for by the insurer.

"We're deciding whether to appeal the cross motion," said Orso. "When case law supports our position over and over, it's my opinion that the action of insurers is more of an exercise of holding back the floodwaters.

"I think it's a foregone conclusion that assignments are a battle [insurers] won't win, it appears they just like to fight. The three 'D' defense is alive and well: Deny, Delay and Defend! It would make sense to negotiate a settlement and settle these claims at the time of repair."

Added Ed Kizenberger, executive director of the New York State Auto Collision Technicians Association (NYSACTA), "These recent court decisions send a strong message that the justice system understands our issues when asked to make decisions that will help consumers and repairers get properly compensated. Our industry's responsibility initially was to do a proper repair. It's unfortunate that it has become necessary to go to court to be paid. We applaud all repairers who have chosen this difficult path to protect their customers' interest in getting a proper and safe repair."  

Orso, president of NYSACTA, is not involved in any DRPs.

"Nick Orso's is a 57-year-old collision repair shop, and for 57 years our focus has not changed. We don't believe the insurance company is the expert. Their estimate is an offer of payment, period. Since the shop holds the liability in a repair and is responsible to the customer for every detail of that repair, we'll continue to make our own repair decisions based on manufacturer-recommended repair procedures or techniques that render the best results. If [insurers] are willing to work with us, great. If not, we use the process we've developed for collecting the short pays. Many companies have come around and are willing to settle during the repair. It just took them a few trips to court to know we were serious." 

Ohio Collision Repairer Wins Two 'Assignment of Proceeds' Cases Against Nationwide