January 18, 2019

Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50094(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-country-wide-ins-co-2019-ny-slip-op50094u/

Court: Appellate Term, Second Department
Decided: January 18, 2019
Citation: 2019 NY Slip Op 50094(U)
Posture: Trial
Outcome: Split result
Issues: IME no-show Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case at trial · No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co., 2019 NY Slip Op 50094(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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Summary

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

The insurer proved an IME nonappearance defense to three of seven claims, reducing the provider's recovery after trial. The provider established its prima facie case on all seven claims by showing that the insurer received the bills and had not paid them. For three claims, however, the insurer's trial proof established timely mailing of the IME scheduling letters and denials and the assignor's failure to appear. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., those nonappearances violated a condition precedent to coverage and defeated recovery on those bills. The Appellate Term, Second Department, modified the judgment to exclude the three claims, otherwise affirmed, and remitted for recalculation of statutory interest and entry of an amended judgment.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50094(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason, Respondent,
against
Country-Wide Ins. Co., Appellant.

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 26, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,940.

ORDERED that the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

This action by a provider to recover assigned first-party no-fault benefits as to seven claims was consolidated for a nonjury trial with five other actions. After the trial, the Civil Court found that plaintiff had established its prima facie case in this action and that defendant had failed to establish its defenses, and awarded judgment to plaintiff on all seven claims.

Contrary to defendant’s argument, plaintiff established its prima facie case as to the seven claims at issue in this action, totaling $6,940, as plaintiff demonstrated that the bills had been received by defendant and had not been paid (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

However, defendant correctly argues that it established that it had properly and timely [*2]denied three of the claims, for $605, $285 and $355, respectively, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant’s proof at trial was sufficient to demonstrate that defendant had timely mailed the IME scheduling letters and denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear at those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As defendant proved that the assignor had violated a condition precedent to coverage (see id.), plaintiff was not entitled to recover on those bills.

Defendant’s remaining arguments lack merit.

Accordingly, the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk

Decision Date: January 18, 2019

Legal questions (4)

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.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case

Rejected the insurer's challenge and held after trial that the provider established its prima facie case on all seven claims by showing the bills were received by the insurer and not paid.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.

No-show defense: insurer's proof

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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 after trial that the insurer proved timely mailing of the IME scheduling letters and the assignor's failure to appear, so the provider could not recover on three bills.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.

No-show: coverage defense or precludable?

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Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)

Held after trial that the insurer properly and timely denied three claims on the ground of the assignor's IME no-show, having proved timely mailing of the scheduling letters and denials.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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)

Held the insurer's trial proof sufficiently demonstrated that it timely mailed the IME scheduling letters and the denials for three claims.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

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

Brand Med. Supply, Inc. v Infinity Ins. Co. (2016 NY Slip Op 50738(U))An insurance policy declaration page has independent legal significance and requires authentication, not a business-record foundation.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51760(U))The provider proved its unpaid claims at trial, but statutory interest was stayed for approximately three years of failure to prosecute.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.

Similar decisions

Healing Art Acupuncture, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51465(U))The insurer proved its IME nonappearance defense to six claims but failed to establish timely denial of the first claim.
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))The parties' proof failed to establish either IME nonappearance or the provider's prima facie entitlement to summary judgment.
Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.