May 9, 2013
LK Health Care Prods. Inc v GEICO Gen. Ins. Co. (2013 NY Slip Op 50810(U))
https://www.beynensonlaw.com/case-law/lk-health-care-prods-inc-v-geico-gen-ins-co-2013-ny-slip-op50810u/
- Judge
- Levine, J.
- Decided
- May 9, 2013
- Citation
- 2013 NY Slip Op 50810(U) · 39 Misc 3d 1230(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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.
Reported in New York Official Reports at LK Health Care Prods. Inc v GEICO Gen. Ins. Co. (2013 NY Slip Op 50810(U))
| LK Health Care Prods. Inc v GEICO Gen. Ins. Co. |
| 2013 NY Slip Op 50810(U) [39 Misc 3d 1230(A)] |
| Decided on May 9, 2013 |
| Civil Court Of The City Of New York, Kings County |
| Levine, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court of the City of New York, Kings County
LK Health Care
Products Inc A/A/O JEAN YVES TALLEYRAND, Plaintiff,
against GEICO General Insurance Co., Defendant. |
068326/2011
ATTORNEYS FOR PLAINTIFF:
Ilona Finkelshteyn, Esq
2503 65th Street
Brooklyn, NY 11204
ATTORNEYS FOR DEFENDANT:
Law Offices of Spina, Korshin & Welden
170 Froehlich Farm Blvd.
Woodbury, NY 11797
Katherine A. Levine, J.
PapersNumbered
Notice of Motion and Affidavits Annexed………….. …………………………1
Notice of Cross-Motion and Affidavits Annexed.. ………………………….2
Answering Affidavits………………………………………………………………….. .
Replying Affidavits……………………………………………………………………..
Exhibits………………………………………………………………………………………..
Other: ………………………………………………………………………………………….
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:
This case was submitted solely on the unanswered question of whether the No-Fault Regulations require a defendant insurance company to respond to a letter from a plaintiff medical provider objecting to an EUO request as being unreasonable.
Plaintiff LK Health Products, Inc. (“plaintiff” or “LK”), a medical equipment company, [*2]commenced this action to recover the sum of $2,779.63 for medical supplies it provided to its assignor. Defendant GEICO General Insurance Company (“defendant” or “GEICO”) cross moves for summary judgment based upon plaintiff’s failure to show up at an EUO. Defendant sent plaintiff two EUO requests which explained that GEICO’s investigation into plaintiff’s business practices raised questions as to the accuracy of its billing and coding practices, its calculations, and whether the items billed for were the actual items provided to the patients.
In response to the defendant’s EUO request, plaintiff sent a letter which referenced the assignor’s name, the date of service and the amount outstanding. It read: “Please acknowledge this as a formal objection to the EUO request. It is my belief that you do not have a reasonable basis for an EUO request as regulation 68 requires. If there is any kind of information that you need, please request it in the form of verification request. In response to your attached letter, please find out filing receipt and verification of true ownership.” Plaintiff sent a filing receipt and verification of true ownership in response to defendant’s EUO letter.
In its motion plaintiff argues that defendant lacked a specific objective justification for the requested EUO and s that once plaintiff objected to the EUO, the burden shifted to the defendant to respond why its EUO request was reasonable. Plaintiff cites to 11 NYCRR §65 – 3.2, entitled “Claim Practice Principles to be Followed by All Insurers,” which provides that insurers are to: “(e) Clearly inform the applicant of the insurer’s position regarding any disputed matter and (f) Respond promptly, when a response is indicated, to all communications from insureds, …” in support of its position.
Defendant counters that its EUOs were properly scheduled based upon the results of its special investigation into the plaintiff’s business practices. Since its initial EUO scheduling letter explained the need for the EUO, defendant argues that it did not have to respond to plaintiff’s objection letter. It also argues that plaintiff’s boilerplate and nonspecific objection to an EUO did not obviate plaintiff’s obligation to appear.
The Court finds plaintiff’s argument unavailing. First, 11 NYCRR 65-3.2 is a generic provision which applies to all claim practices by insurers. In contrast, the Insurance Department has specifically addressed the obligations of insurers regarding No-Fault EUOs. The Department found that 11 NYCRR 65-3.5(e) does not require an insurer to justify its EUO requests or include language setting forth the reasons for requiring the EUO in either its notices for the EUO or its denials based upon an EUO no show. Nor need it even file with the Insurance Department the standards it maintains for determining when EUOs will be requested. (See Office of General Counsel, NYS Ins Dept. Opinion dated 12/22/2006).
The Court first notes that plaintiff has no standing to even raise this argument since it did not request that defendant provide its reasons for seeking an EUO but rather issued an objection letter indicating that it refused to appear. Furthermore, since no justification for an EUO request is necessary, this Court rules that an insurer is not obligated to reply to a plaintiff letter refusing to appear at an EUO and requesting that a defendant justify its reason for the EUO. Here, [*3]defendant went beyond its obligation by providing its reasons for the EUO in its initial scheduling letter. Finally, to rule otherwise would sanction the parties’ sending countless letters to each other, which would violate the intent of the No-Fault Law which encourages the prompt resolution of no fault claims. See New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 17 NY3d 586, 589 (2011); All Boro Psychological Services, P.C. v. GEICO, 38 Misc 3d 268, 272 (Civ. Ct., Kings Co. 2012). The no-fault regulations were adopted by the Superintendent of Insurance in furtherance of these objectives. New York and Presbyterian Hosp., supra at 589 citing Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, (2007).
It is well established that a plaintiff may preserve its right to challenge the reasonableness of the EUO request at the litigation stage if it objects to a requested EUO at the time it receives the notice. Eagle Surgical Supply, Inc v. AIG Ins Co., 2012 NY Slip Op 51711(U), 36 Misc 3d 153(A)(App. Term, 2nd Dept. 2012); All Boro Psychological Services, P.C. v. State Farm Mutual Automobile Ins. Co., 2012 NY Slip Op 51346(U), 36 Misc 3d 135(A)(App. Term, 2nd Dept. 2012). Here, the Court finds that the plaintiff timely objected to the defendant’s EUO request in writing. However, the defendant provided a clear and unambiguous affidavit from its Special Investigative Unit (“SIU”) Manager which substantiated the need for the EUO based upon an investigation it commenced of plaintiff for improper management and billing operations. Therefore, the defendant was justified in requesting the EUO of the plaintiff.
Plaintiff’s failure to show up for an EUO constituted a violation of a condition precedent to coverage, which voided the contract ab initio. Accordingly, the defendant insurer is not obligated to pay the claim, regardless of whether it issued denials beyond the 30 day period. Neomy Medical, P.C. v. American Transit Ins. Co., 2011 NY Slip Op 50536(U), 31 Misc 3d 1208(A)(Civ. Ct., Kings Co. 2011). See Lender Medical Supply, Inc v. Hartford Ins. Co., 2012 NY Slip Op 50903(U), 35 Misc 3d 1226(A)(Civ. Ct., Kings Co 2012). Since the contract has been vitiated, defendant may deny all the claims retroactively to the date of loss. Id.
In light of the above, the plaintiff’s motion is denied, the defendant’s motion is granted and the case is dismissed with prejudice.
The foregoing shall constitute the Decision and Order of the Court.
Dated: May 9, 2013___________________________
Katherine A. LevineJudge, Civil Court
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.
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 need not answer a provider's letter objecting to and refusing an EUO, and its SIU manager's affidavit justified the request, so the provider's nonappearance defeated the claim.
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show voids coverage; insurer need not show a timely denial (rules on the question, but another ground decided the case)
Held the provider's EUO no-show breached a condition precedent and voided the policy ab initio, so the insurer owed nothing regardless of whether its denials were issued beyond 30 days.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 4 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- New York & Presbyt. Hosp. v Country-Wide Ins. Co. (2011 NY Slip Op 07149)A timely proof of claim does not satisfy the 30-day accident-notice requirement when submitted after that period expires.
- All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 22307)A provider that delays suit beyond 30 days after receiving a denial resumes accruing interest upon completed service under CCA 412.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
- 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.
- Neomy Med., P.C. v American Tr. Ins. Co. (2011 NY Slip Op 50536(U)) FollowedAn assignor's failure to attend a postclaim IME is a nonprecludable coverage defense despite a denial issued beyond 30 days.
- Lender Med. Supply, Inc. v Hartford Ins. Co. (2012 NY Slip Op 50903(U)) FollowedAn insurer's consent to adjourn an EUO prevents it from counting nonappearance on that date as a no-show.
Cited by
- Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co. (2021 NY Slip Op 21157)A provider may not condition compliance with an MRI-film verification request on advance payment of reproduction costs.
Similar decisions
- Arco Med. N.Y., P.C. v Lancer Ins. Co. (2012 NY Slip Op 22278)An insurer may schedule an EUO outside the applicant's county if the place and time are reasonably convenient.
- Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NYSlip Op 51935(U))The provider's EUO objections were unpreserved, and the insurer established timely notices and denials and the provider's nonappearance.
- Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51088(U))The provider's failure to object to improper verification demands left the payment period tolled and its claim premature.
- 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.