In automobile accident cases, injured parties are due no-fault coverage and payments.  Insurance companies have the right to refuse to pay for medical treatment which is unrelated to the accident, and often refuse to pay.  Sometimes, the insurance company is correct,and sometimes it is incorrect.  The injured party’s remedy is a no-fault arbitration.  A no-fault arbitration has a hidden trap of collateral estoppel.  If the arbitration of a wrongful no-fault denial is lost, the entire personal injury case can be lost too.  Often, practitioners wait, resolve the personal injury case, and then arbitrate.

In Levy v Fischman  2014 NY Slip Op 51749(U)  decided on December 15, 2014  Appellate Term, First Department and Levy v Fischman  2014 NY Slip Op 51750(U)  Decided on December 15,   2014  Appellate Term, First Department we see the result.

"This legal malpractice action arises from defendants’ representation of plaintiffs in connection with personal injury and insurance claims relating to an automobile accident. Insofar as relevant to this appeal, plaintiffs allege that defendants, a law firm and its principal, agreed to "handle all medical bills and payments, including No-fault insurance and personal health insurance claims that related" to the underlying accident.

Defendants demonstrated entitlement to partial summary judgment dismissing so much of plaintiffs’ legal malpractice claim as alleged a failure by defendants to pursue arbitration of the denial of plaintiff Susan Levy’s claim for first-party no-fault benefits. Defendants demonstrated that their decision to forgo arbitration represented a reasonable litigation strategy (see Rodriguez v. Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [2011]), explaining that had the arbitration been pursued, any negative finding made therein as to Susan’s injury and/or condition could have negatively affected plaintiffs’ then-pending personal injury action (see Clemens v Apple, 65 NY2d 746 [1985]). "Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad v Weingrad, 4 AD3d 208 [2004]).

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