July 7, 2005

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 25277)

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-liberty-mut-ins-co-2005-ny-slip-op-25277/

Court: Appellate Term, Second Department
Decided: July 7, 2005
Citation: 2005 NY Slip Op 25277 · 9 Misc 3d 36
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Limited in 1 and followed in 4 later decisions (see Cited by)
Issues: Assignments and standing

Cite as

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 (App Term, 2d Dept 2005)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A billing provider cannot recover assigned no-fault benefits directly for services rendered by an independent contractor. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's cross motion for summary judgment dismissing the billing provider's complaint, and otherwise affirmed. The provider's NF-3 forms expressly identified the treating physician as an independent contractor. Under 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), assignments for direct payment must run from the applicant to the provider of services; the regulations authorize no assignment by a provider. Both entities' licensed status did not make the billing provider the provider of these services. The remaining providers' appeals were dismissed because they raised no issue.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 25277)

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co.

2005 NY Slip Op 25277 [9 Misc 3d 36]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 19, 2005

[*1]

A.B. Medical Services PLLC et al., as Assignees of Norma J. Evans, Appellants-Respondents,
v
Liberty Mutual Insurance Company, Respondent-Appellant.

Supreme Court, Appellate Term, Second Department, July 7, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants-respondents. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent-appellant.

{**9 Misc 3d at 37} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously modified by granting the defendant’s cross motion to dismiss the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiffs DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and G.A. Physical Therapy P.C. unanimously dismissed.

In this action to recover assigned first-party no-fault benefits, the NF-3 claim forms attached by plaintiff A.B. Medical Services PLLC in support of its motion for summary judgment provided, under the item calling for information where the “treating provider is different than [the] billing provider,” that the licensed “treating provider” was Dr. Ronald Collins, M.D., and that the “business relationship” was that of “independent contractor.”

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “[a]n insurer shall pay benefits . . . directly to the applicant or . . . upon [*2]assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

It is undisputed on the record that both A.B. Medical and Dr. Collins are licensed providers of health care services, and, as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the{**9 Misc 3d at 38} defendant insurer. Accordingly, the order of the court is hereby modified by providing that defendant’s cross motion for summary judgment dismissing the complaint as to plaintiff A.B. Medical is granted.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see Informal Ops dated Feb. 21, 2001, Feb. 5, 2002, Mar. 11, 2002, Oct. 21, 2003) which are entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).

Pesce, P.J., Rios and Belen, JJ., concur.

Cited by (14)

A label shows how the later decision treated this one.

Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2006 NY Slip Op 26326) LimitedThe provider retained standing to sue for no-fault benefits despite pledging its receivables as security for financing.
A.B. Med. Servs. PLLC v Countrywide Ins. Co. (2005 NY Slip Op 25424) FollowedA billing provider may not amend fatally defective NF-3 forms at trial to replace independent-contractor designations with employee status.
Multiquest, P.L.L.C. v Allstate Ins. Co. (2007 NY Slip Op 51776(U)) FollowedThe insurer established that the provider remained fraudulently organized when it rendered the billed psychological services.
State Farm Mut. Auto. Ins. Co. v Farescal (2009 NY Slip Op 50937(U)) FollowedA medical provider cannot recover assigned no-fault benefits for services rendered by independent contractors rather than by it or its employees.
Stephen Matrangolo, D.C., P.C. v Allstate Ins. Co. (2012 NY Slip Op 22046) FollowedThe chiropractic provider's claims were dismissed because a nonemployee physician, rather than the provider, performed the testing.
Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)A fraudulently incorporated medical provider cannot recover unpaid no-fault benefits even for services predating the licensing regulation.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)An insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim.
Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50521(U))A billing provider cannot receive assigned no-fault benefits for services performed by an independent contractor rather than itself or its employees.
Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51191(U))A billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than its employees.
A.M. Med. Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50384(U))The provider could not be compelled to produce the treating physician for deposition while the physician's employment status was unclear.

Show all 14 citing decisions

Similar decisions

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))A billing provider cannot recover assigned no-fault benefits for services performed by an independent contractor rather than by it or its employees.
A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506)The providers' billing manager affidavit failed to establish submission of properly completed claim forms.
Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51044(U))The provider's W-2 forms did not establish employment when services were rendered by professionals listed as independent contractors.