May 28, 2021

Country-Wide Ins. Co. v Ware (2021 NY Slip Op 50506(U))

https://www.beynensonlaw.com/case-law/country-wide-ins-co-v-ware-2021-ny-slip-op-50506u/

Court: Supreme Court, New York County
Judge: Gerald Lebovits, J.
Decided: May 28, 2021
Citation: 2021 NY Slip Op 50506(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Country-Wide Ins. Co. v Ware, 2021 NY Slip Op 50506(U) (Sup Ct, New York County 2021)

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 assignor's failure to appear twice for timely and properly scheduled IMEs voids the policy from inception for all claims. The Supreme Court, New York County, granted the insurer summary judgment declaring no liability for no-fault benefits to five provider assignees, two on default and three over opposition. Affidavits and supporting records established timely requests, timely scheduling, and two nonappearances under 11 NYCRR 65-3.5 (b) and (d). Following Unitrin Direct Ins. Co. v Beckles, the insurer needed to show a request within 15 business days of a provider claim, rather than the first bill from any provider. Under Unitrin Advantage Ins. Co. v Dowd, the coverage defense applied to all claims, and the assignees had no greater rights than the assignor.

Reported in New York Official Reports at Country-Wide Ins. Co. v Ware (2021 NY Slip Op 50506(U))

Country-Wide Insurance Company, Plaintiff,
against
Saquan Ware, THE JAMAICA HOSPITAL MEDICAL CENTER DIAGNOSTIC AND TREATMENT CENTER CORPORATION, LONGEVITY MEDICAL SUPPLY INC., BEACON ACUPUNCTURE, P.C., COLUMBUS IMAGING CENTER, LLC, DIRECT RX PHARMACY INC., SUN CHIROPRACTIC SERVICES, P.C., LIFE HEALTH CARE MEDICAL PC, MAG MEDICAL DIAGNOSTIC, P.C., ELSANAA PT PC, DR. WATSON CHIROPRACTIC, P.C., TOP Q INC., DITMAS PRIMARY MEDICAL CARE PC, and BRIDGES PSYCHOLOGICAL SERVICES P.C., Defendants.

650050/2020

Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Longevity Medical Supply, Inc., Columbus Imaging Center, LLC, and Bridges Psychological Services, P.C.

Gerald Lebovits, J.

This motion concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Saquan Ware was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Ware assigned his right to collect no-fault benefits under that policy to the medical provider defendants. They applied for no-fault benefits from Country-Wide but were [*2]denied.

Country-Wide now moves for summary judgement under CPLR 3212 against defendants Jamaica Hospital Medical Center Diagnostic and Treatment Center (Jamaica Hospital Center), Columbus Imaging Center, Direct RX Pharmacy, Longevity Medical Supply, and Bridges Psychological Services. Country-Wide seeks a declaratory judgment that it is not liable to pay no-fault benefits to these medical-provider assignees because Ware failed to appear for duly scheduled independent medical examinations (IMEs).

The motion is granted on default and without opposition as to defendants Jamaica Hospital Center and Direct RX Pharmacy. The motion is granted as to defendants Columbus Imaging Center, Longevity Medical Supply, and Bridges Psychological Services.

DISCUSSION

I. Whether Country-Wide Timely Requested that Ware Appear for Timely Scheduled IMEs

A no-fault insurer seeking a declaratory judgment of no-coverage for the injured person’s failure to appear for IMEs must establish that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Under those regulations, the insurer must request an IME within 15 business days of receipt of the forms that it requires to verify no-fault claims, such as the NF-3 forms in this case; and the IME must be scheduled to be held within 30 calendar days of receipt. (See 11 NYCRR 65-3.5[b], [d].)

Country-Wide submits affidavits from two administrative employees (with supporting documentation) representing that that the IME request form was mailed on January 13, 2017; that the IME was originally scheduled to be held on January 26; and that Ware failed to appear for his IME either on January 26 or on the rescheduled examination date. Country-Wide also provides the affidavit of its no-fault litigation supervisor representing that Country-Wide received, among others, provider bills on December 28, 2016, December 30, 2016, and January 9, 2017—along with copies of the date-stamped bills themselves. Country-Wide has thus established that Ware failed to appear for two timely requested and timely scheduled IMEs.

There is no merit to defendants’ argument that Country-Wide must demonstrate when it received the first bill from a given provider, nor that Country-Wide must demonstrate that it requested an IME within 15 business days of the very first bill received from any provider. Rather, for timeliness purposes it is sufficient for the insurer to establish that it requested an IME within 15 business days of receipt “of a medical provider claim (NF-3).” (Unitrin Direct Ins. Co. v Beckles, 188 AD3d 620, 620 [1st Dept 2020] [emphasis added].) And the First Department has made clear not only that an injured person’s failure twice to appear for a timely and properly scheduled IME “is a breach of a condition precedent to coverage” that “voids the policy ab initio,” but therefore also that this “coverage defense applies to any claim and is not determined [*3]on a bill by bill basis.”^[FN1] (Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012 [1st Dept May 11, 2021] [emphasis added], citing PV Holding Corp. v. AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020].)

Nor, given the detailed representations in the affidavits supplied by Country-Wide, is this court persuaded by defendants’ arguments (i) that those affidavits are insufficient to make the documents submitted by Country-Wide admissible as business records; or (ii) that the affidavits are insufficient to establish timely and proper IME mailings by Country-Wide and Ware’s failure to appear for the IMEs.

This court therefore concludes that Country-Wide has established as a matter of law that Ware failed twice to appear for properly scheduled IMEs. Given those failures to appear, Ware’s insurance coverage is void ab initio, and Country-Wide has no liability to pay him no-fault benefits. The medical-provider defendants on this motion, as Ware’s assignees, stand in his shoes and have no greater right to collect no-fault benefits than he does. Country-Wide has thus established that it has no liability to pay them no-fault benefits, either. Country-Wide’s motion for summary judgment is granted.

Settle Order.

DATE 5/28/2021

Footnotes

Footnote 1: There also is no merit to defendants’ oft-repeated argument that the First Department has retreated from or repudiated its holding in Unitrin Advantage Insurance Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011])—or to defendants’ assertion that this court is free to disregard the First Department’s decision in Bayshore because it is (supposedly) bad law.

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.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved two timely requested and scheduled IMEs and nonappearances, since the request needed to fall within 15 business days of any provider's NF-3, not the first bill received.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Rejected the providers' argument that the insurer's employee affidavits were insufficient to establish timely and proper mailing of the IME requests.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category.

Cited in this decision

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

American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) FollowedAn insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
Unitrin Direct Ins. Co. v Beckles (2020 NY Slip Op 06974) FollowedAn insurer establishes a coverage disclaimer by requesting an IME within 15 days of a claim and proving two duly noticed IME no-shows.
Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012) FollowedA provider's failure to attend a timely requested EUO voids coverage for all claims, rather than only the bill prompting the request.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.

Cited by

Country-Wide Ins. Co. v Duff (2022 NY Slip Op 51289(U))An assignor's two unjustified IME nonappearances defeat all providers' claims when the IME was duly scheduled within 15 days of an NF-3 claim's receipt.

Similar decisions

Country-Wide Ins. Co. v Henderson (2022 NY Slip Op 51304(U))The insurer failed to document a consistent objective justification for its EUO request, and its summary judgment motion was premature.
Country-Wide Ins. Co. v Delacruz (2022 NY Slip Op 03068)The insurer's EUO nonappearance motion was premature because it withheld the specific objective justification for requesting the EUO. The Appellate Division, First Department, affirmed denial of summary judgment against the providers under CPLR 3212 (f).
American Tr. Ins. Co. v Wildex (2020 NY Slip Op 50929(U))The insurer failed to prove timely IME scheduling, and the assignor's default judgment did not preclude the provider's claim.
Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801)The insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
American Tr. Ins. Co. v Romero-Richiez (2020 NY Slip Op 51181(U))The insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims.