Health Care Assoc. in Medicine v Geico Ins. Co. (2010 NY Slip Op 50094(U))

Civil Court of the City of New York, Richmond County

19752/07

Defendant:

Law Offices of Teresa M. Spina

GEICO Insurance Co.

170 Froehlich Farm Blvd

Woodbury NY 11797

(516) 496-5822

Plaintiff:

Joseph Sporacio, P.C., Attorney for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

(718) 966-0055

Katherine A. Levine, J.

The primary issue presented at trial was whether plaintiff Healthcare Associates in Medicine (“plaintiff” or “Health Care”) violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations – 11 NYCRR 65 – 1.1 – by failing to submit its proof of claim for services to defendant Geico Insurance (“defendant” or “Geico”) within 45 days from the date services were rendered. Since the two aforementioned cases presented the same issue, they were consolidated for trial. [*2]

Defendant moved for a directed verdict after plaintiff presented the testimony of Ms. Sparta, its collection account representative. Defendant contended that Sparta failed to establish that either of the assignor’s bills were sent within 45 days since she admitted on cross that she did not know whether or when the bills were actually sent out. She did not generate the bill and did not see the representative responsible for billing GEICO either generate the bills or mail them or give them to the postal clerk. Rather, it is her responsibility to supervise the assigned representatives, including “Mary Ann” who was responsible for GEICO billing. Mary Ann was supposed to take the information from the patient and generate a bill after the patient was seen and send out the bill was supposed to generate a visit for the day, attach it to the bill and send it out. She “hopes and assumes” that Maryann took the bill and put it into the mail room.

Due to the computer program utilized by plaintiff, she cannot print out a hard copy of the bill for the first date of service of a particular assignor since each time a new bill is generated the computer overrides the original bill that was created. Therefore the dates on the claim forms submitted by plaintiff (plaintiff’s “1” and “3”) are not the dates for the first bills that were generated for the assignors but rather the dates for the last bills that were generated. There is no proof of mailing for the bills containing the original dates of service and nothing on the bills that would show that they were mailed. However, the computer also prints out a claims history report ( plaintiff’s “2” and “4”) which chronologically lists from the bottom upwards the dates that the bills were generated. Sparta claims that based upon the claims history forms, the bill for the first date of service on Varallo- April 7, 2006 – was generated on April 12, 2006 and that the girls should have mailed the bill out that day. With respect to assignor Galanti, the bill for the first date of service on May 16, 2006 was generated was May 17, 2006.

Due to the alleged deficiency in Sparta’s testimony as well as deficiencies in the documentary evidence, GEICO contends that it is not necessary for it to present its own witness to establish its receipt of the bills or its generation of timely denials. Despite this contention, Geico asserts in its brief that it received the bill for the date of service of April 7, 2006 (Varallo) on June 26, 2006 and timely denied the bill on June June 29, 2006. Geico also asserts that it received the bill for the date of service of May 16, 2006 (Galanti) on July 7, 2006 and timely denied it on July 20, 2006. However, these are merely assertions; Geico did not place its denials in evidence.

Curiously, Geico does not dispute that plaintiff’s witness “adequately testified that she had personal knowledge of the mailing procedures sufficient to raise a presumption that the bill(s) were mailed to Defendant.” Therefore defendant does not dispute that but for the 45 day issue, plaintiff would have proven its prima facie case. Rather defendant challenges plaintiff’s ability, on its prima facie case, to submit both testimony and evidentiary documentation to establish that the bills were mailed within the mandatory statutory time period of 45 days. In essence Geico contends that it would be redundant and a waste of time for it to have to place its claims examiner on the stand to establish that the bill was mailed and received beyond the 45 [*3]days since plaintiff would not be able, based upon Sparta’s testimony in plaintiff’s case, to rebut its testimony and documentary evidence.

Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002, are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days (11 N.Y.C.R.R. 65.12 [e] (“old regulations)) to 45 days (11 N.Y.C.R.R. § 65-1.1 [b] (“new regulations.”)). See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130(A), 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). Where one proof of claim is submitted for several medical treatments, the 45 day period commences the day after the first treatment is rendered. SZ Medical P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term., 2nd & 11th Jud. Dists. 2006), citing Informal Opinion, New York State Insurance Department, June 30, 2003.

Insurance Law § 3425 (a) (8) sets forth that the policy period for newly issued and renewed automobile insurance policies is one year. See also Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475 (2001). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003. S & M Supply v State Farm Mut. Auto. Ins. Co., supra . When an automobile policy is issued after that date, the defendant insurer need not prove that the policy at issued contained such an endorsement, “(s)ince an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [a][8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]”. Eagle Chiropractic, supra . See also, Lenox Hill Radiology and MIA, P.C. v. Regina Alsis, 2009 NY Slip Op. 51966U, 2009 NY Misc. LEXIS 2471 (Civil Ct., Bronx Co. 2009).

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider’s untimely submission of claim if it does not issue a timely denial of claim. Rockman v. Clarendon Nat. Ins. Co., supra , citing Mid Atlantic Medical P.C. v. Travelers Indemnity Co., 12 Misc 3d 147(A), 824 NYS2d 769 (App. Term, 1st Dept. 2006). Pursuant to both the Insurance

Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. Presbyterian Hosp. v. Md. Cas. Co., 90 NY2d 274, 278 (1997), citing Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). See, Bayside Rehab & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542 (Civil Ct., Richmond CO. 2009). [*4]

Thus, in Montefiore Med. Ctr. v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354 ( 2d Dept. 2004), the court found that despite the fact that the medical service provider had submitted a proof of claim that was incomplete and untimely, the plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period NYCRR 651.1(d) ( new regulation). St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 (2d Dept. 1994).However, since the defendant offered sufficient evidence to raise a triable issue of fact whether as to whether the plaintiff’s claim was denied as untimely, summary judgment should not have been granted to the plaintiff. See also, Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op 52143U, 17 Misc 3d 1125A (Civil Ct., Kings Co. 2007) (parties stipulated at outset of trial that plaintiff’s bills were submitted beyond 45 days after services were rendered, the defendant submitted a timely denial, and the plaintiff’s prima facie case was established).

GEICO submits that it need not present a witness to establish that it timely denied the bills because plaintiff failed, in its prima facie case, to establish that it mailed the bills within the statutory 45 day period and failed to present any testimony as whether it had a reasonable justification for the delay in mailing the bills. However, since GEICO concedes that plaintiff made out its prima facie case of generating and then mailing a bill, GEICO cannot then attack the validity of the very bills it concedes were properly mailed and generated by arguing that they do not contain proof that they were mailed within 45 days. The fact that a plaintiff’s bill may ultimately be deemed to be untimely does not create an obligation upon the plaintiff, in the first instance, to prove timeliness as part of its prima facie. Rather, precedent requires that an insurance company establish the untimeliness of the bills by putting in its timely denials which contain the dates that the bills were received. GEICO may be able to prevail if the documents it puts into evidence substantiate its assertions, in its brief, that it received both claims beyond the 45 day manage.

As such, defendant’s motion for judgment as a matter of law and for the dismissal of the case is denied. The parties shall contact the court within 20 days of receipt of this decision to set a trial date if they cannot resolve these two cases based upon the afore stated decision. A trial shall be held to give GEICO an opportunity to present its defense.

The foregoing constitutes the Decision and Order of the Court.

Dated: January 6, 2010______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________ [*5]

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