July 28, 2014

Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))

https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-ids-prop-cas-ins-co-2014-ny-slip-op51244u/

Court: Appellate Term, Second Department
Decided: July 28, 2014
Citation: 2014 NY Slip Op 51244(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Declined to follow in 1 and followed in 1 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion Verification requests
Legal questions: No-show: coverage defense or precludable? · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 51244(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny. Requests mailed 21 and 16 business days after claim receipt exceeded the 15-business-day limit in 11 NYCRR 65-3.5 (b), reducing the denial periods to 24 and 29 calendar days under 11 NYCRR 65-3.8 (l). Follow-up requests were timely, and denials mailed 11 days after the final EUO nonappearance satisfied both periods; the third claim was also timely denied. Affidavits established mailing and nonappearance. Because the provider never responded to the EUO requests, their reasonableness was not considered. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))

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

Longevity Medical Supply, Inc. as Assignee of LONNY A. VARGAS, Respondent,
against
IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied based upon plaintiff’s failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion, arguing that defendant had failed to timely request EUOs and timely deny the claims, and that defendant did not demonstrate a good reason for requesting the verification. The Civil Court denied defendant’s motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.

The affidavit submitted by defendant’s attorney in support of defendant’s motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olemur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, the affidavit by defendant’s litigation examiner established, based upon her personal knowledge, that defendant’s procedures for mailing (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C., 17 Misc 3d at 17-18) denial of claim forms had been followed.

To the extent that plaintiff argued that defendant’s EUO scheduling letters had been untimely, a review of the record reveals that defendant received the claim form which sought reimbursement in the amount of $574.65 on April 4, 2011 and mailed its first EUO scheduling letter on May 3, 2011, 21 business days later. Requests for additional verification are untimely if [*2]not made within 15 business days of the insurer’s receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). Since the first EUO request was six days late, defendant’s time to pay or deny this claim was reduced from 30 calendar days to 24 calendar days (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [l]). Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed its denial of claim form 11 days after plaintiff had failed to appear for the final scheduled EUO. With respect to the claim which sought reimbursement in the amount of $963.24, defendant demonstrated that it had received that claim on April 11, 2011 and had mailed the initial EUO scheduling letter on May 3, 2011, 16 business days later. Consequently, defendant’s time to pay or deny this claim was reduced to 29 calendar days. Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed the denial of the $963.24 claim 11 days after plaintiff had failed to appear for the final scheduled EUO. Finally, defendant received the claim which sought reimbursement in the amount of $1,150 on May 19, 2011 and denied it on June 13, 2011. Consequently, each of defendant’s denial of claim forms was timely mailed.

Furthermore, inasmuch as defendant demonstrated that plaintiff had failed to respond in any way to defendant’s requests for EUOs, the reasonableness of these requests will not be considered (see e.g. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Morris Med., P.C. v Amex Assur. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52260[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51711[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 28, 2014

Legal questions (3)

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: coverage defense or precludable?

Open the full map

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

Rejected the provider's untimeliness argument, computing that late initial EUO requests only shortened the time to deny and that the denials, mailed 11 days after the final nonappearance or within 30 days of receipt, were timely.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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

Reversing the lower court, held the litigation examiner's personal-knowledge affidavit showed the denial mailing procedures were followed, and the attorney's affidavit sufficiently described office practice for mailing EUO letters.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

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 the insurer proved mailing of the EUO letters by office-practice affidavit and nonappearance by the EUO attorney's personal knowledge; a late initial request only reduced the time to deny, and reasonableness was not considered absent any response.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))The insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
Morris Med., P.C. v Amex Assur. Co. (2012 NY Slip Op 52260(U))The insurer's EUO defense failed on five untimely denied claims but supported dismissal of six claims that were timely denied.
All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))A provider's appearance at a duly requested EUO is a condition precedent to the insurer's liability under the policy.
Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U))The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.

Cited by

A label shows how the later decision treated this one.

Country-Wide Ins. Co. v Delacruz (2021 NY Slip Op 21019) Declined to followThe insurer's EUO no-show summary judgment motion failed for missing timeliness proof and outstanding discovery into justification.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340)An untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc. (2015 NY Slip Op 05891)The insurers proved mailing of EUO letters through counsel's affirmation and obtained a default declaration of no payment obligation.
Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))The insurer failed to establish a proper EUO nonappearance denial because its first EUO notice was mailed about 50 days after claim receipt.
New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.

Similar decisions

K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U))A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50582(U))The insurer failed to establish an EUO-authorizing policy endorsement or proper EUO notices, leaving its denial untimely.
FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U))An insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.