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April 19, 2022

Allstate Fire & Cas. Ins. Co. v Branch Med., P.C. (2022 NY Slip Op 50277(U))

https://www.beynensonlaw.com/case-law/allstate-fire-cas-ins-co-v-branch-med-p-c-2022-ny-slip-op50277u/

Court
Appellate Term, First Department
Decided
April 19, 2022
Citation
2022 NY Slip Op 50277(U)
Posture
Article 75 petition
Outcome
Insurer prevailed
Issues
Policy issues CPLR article 75 (arbitration awards) Timeliness and preclusion
Legal questions
Court review of arbitration awards · Exhaustion of policy limits (see the maps)
Cite as
Allstate Fire & Cas. Ins. Co. v Branch Med., P.C., 2022 NY Slip Op 50277(U) (App Term, 1st Dept 2022)

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.

An arbitration award directing payment beyond exhausted no-fault policy limits exceeds the arbitrator's power. The Appellate Term, First Department, affirmed vacatur of the master arbitrator's award and denial of the provider's cross motion to confirm. At a framed issue hearing, the insurer's adjuster testimony, policy declarations and payment ledgers established exhaustion before its obligation to pay this claim arose. Exhaustion remained available despite failure to deny within 30 days. Under 11 NYCRR 65-3.15, the insurer could pay other legitimate claims after denying this disputed claim. The provider's argument that those claims were not verified was unpreserved, and its prior admission that the assignor was a pedestrian defeated its assertion that pedestrian status was unproved for additional personal injury protection coverage.

Reported in New York Official Reports at Allstate Fire & Cas. Ins. Co. v Branch Med., P.C. (2022 NY Slip Op 50277(U))

Allstate Fire & Casualty Insurance Company, Petitioner-Respondent,

against

Branch Medical, P.C. a/a/o Vida Nyarko, Respondent-Appellant.

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 4, 2021, which granted the petition of Allstate Fire & Casualty Insurance Company to vacate a master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.

Civil Court properly vacated the master arbitrator’s award and denied respondent’s cross motion to confirm the award. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000][internal quotation marks omitted]). An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]).

At the framed issue hearing on the issue of policy exhaustion, petitioner’s submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016]). The evidence includes the testimony of petitioner’s claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a [*2]ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.

Contrary to respondent’s contention, petitioner was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept 2015]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claims “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Respondent’s contention that the other claims paid by petitioner were not shown to be “verified” is unpreserved as a matter of law for this court’s review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez], 212 AD2d 405 [1995]). The alleged defect in petitioner’s proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349 [1955]; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991]).

Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because “there was no evidence … that assignor was a pedestrian.”

We have considered respondent’s remaining arguments and find them unavailing.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


Clerk of the Court
Decision Date: April 19, 2022

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Court review of arbitration awards

Open the full map

When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?

This decision: Award vacated because the arbitrator exceeded a limit on his or her power (issue not raised, beyond policy limits, public policy) or on another CPLR 7511 (b) ground

Affirmed vacatur of the master award because, after a framed-issue hearing showed the policy exhausted before the claim became payable, the award directing payment beyond the policy limit exceeded the arbitrator's power.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 9
  • Trial courtsTrial 11
2010, Court of Appeals: 1 decision (1 Award stands)2023, Appellate Division: 3 decisions (1 Award stands, 1 Vacated: irrational/arbitrary, 1 Vacated: exceeded power)2021, Appellate Division: 1 decision (1 Award stands)2020, Appellate Division: 4 decisions (2 Award stands, 1 Vacated: irrational/arbitrary, 1 Remanded, undecided)2019, Appellate Division: 5 decisions (2 Award stands, 3 Vacated: irrational/arbitrary)2018, Appellate Division: 3 decisions (3 Award stands)2017, Appellate Division: 3 decisions (1 Award stands, 2 Vacated: irrational/arbitrary)2016, Appellate Division: 4 decisions (2 Award stands, 2 Vacated: irrational/arbitrary)2015, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2014, Appellate Division: 1 decision (1 Award stands)2024, Appellate Division: 3 decisions (3 Award stands)2026, Appellate Division: 2 decisions (2 Award stands)2009, Appellate Division: 1 decision (1 Award stands)2010, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2022, Appellate Term: 1 decision (1 Vacated: exceeded power)2019, Appellate Term: 3 decisions (3 Award stands)2018, Appellate Term: 1 decision (1 Award stands)2017, Appellate Term: 1 decision (1 Remanded, undecided)2016, Appellate Term: 1 decision (1 Remanded, undecided)2011, Appellate Term: 1 decision (1 Remanded, undecided)2009, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2022, Trial courts: 1 decision (1 Award stands)2021, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2018, Trial courts: 1 decision (1 Award stands)2015, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2008, Trial courts: 1 decision (1 Award stands)2006, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2005, Trial courts: 1 decision (1 Award stands)2024, Trial courts: 1 decision (1 Award stands)2025, Trial courts: 1 decision (1 Award stands)This decision
20052010201520202025
Award standsVacated: irrational/arbitraryVacated: exceeded powerRemanded, undecidedThis decisionCites it or cited by itCited or followed

Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 4 (this one included) are in the same category.

Exhaustion of policy limits

Open the full map

Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Insurer proved the limits were used up before it had to pay this claim; claim fails or is reduced

Held the insurer proved exhaustion at the framed-issue hearing through adjuster testimony, declarations page and chronological payment ledgers, and that 65-3.15 allowed paying other legitimate claims after denying this one.

  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 9
  • Trial courtsTrial 1
2023, Appellate Division: 2 decisions (2 Limits exhausted)2022, Appellate Division: 1 decision (1 Limits exhausted)2020, Appellate Division: 1 decision (1 Triable issue / hearing)2024, Appellate Division: 2 decisions (2 Limits exhausted)2022, Appellate Term: 1 decision (1 Limits exhausted)2017, Appellate Term: 2 decisions (2 Triable issue / hearing)2016, Appellate Term: 2 decisions (2 Triable issue / hearing)2015, Appellate Term: 1 decision (1 Limits exhausted)2011, Appellate Term: 1 decision (1 Triable issue / hearing)2007, Appellate Term: 1 decision (1 Triable issue / hearing)2023, Appellate Term: 1 decision (1 Triable issue / hearing)2018, Trial courts: 1 decision (1 Defense not heard)This decision
201020152020
Limits exhaustedTriable issue / hearingDefense not heardThis decisionCites it or cited by itCited or followed

Of the 16 decisions on this question in the First Department courts and the Court of Appeals, 7 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C. (2020 NY Slip Op 00500) FollowedAn arbitration award exceeding policy limits may be challenged with evidence first submitted when confirmation is sought.
  • New York & Presbyt. Hosp. v Allstate Ins. Co. (2004 NY Slip Op 08669) FollowedAn untimely denial does not preclude an exhaustion defense or establish entitlement to judgment on a previously denied duplicate claim.
  • Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt. (2016 NY Slip Op 50828(U)) FollowedAn arbitration award directing payment beyond a no-fault policy's monetary limit exceeds the arbitrator's power.
  • Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50525(U)) FollowedAn insurer need not defer payment of other legitimate claims pending resolution of a claim it timely denied for lack of medical necessity.

Similar decisions

  • Allstate Ins. Co. v Longevity Med. Supply, Inc. (2018 NY Slip Op 50238(U))A master arbitrator may apply law to established facts and correct legal error even when reaching a conclusion different from the arbitrator's. The insurer sought vacatur under CPLR 7511 of an award of unpaid no-fault benefits and attorney fees.
  • Matter of New Millennium Pain & Spine Medicine, P.C. v Progressive Cas. Ins. Co. (2023 NY Slip Op 05369)An insurer's duties cease upon payment of the contractual limit of its no-fault policy.
  • Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159)The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim.
  • Ameriprise Ins. Co. v Kensington Radiology Group, P.C. (2017 NY Slip Op 51911(U))The insurer's policy declarations and payment ledger raised a triable issue of exhaustion before its obligation to pay the claims arose.
  • American Tr. Ins. Co. v Trinity Pain Mgt. of Staten Is., PLLC (2023 NY Slip Op 51337(U))The insurer's petition to vacate a no-fault award was denied because its policy-exhaustion evidence was insufficient.
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