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September 28, 2009

Lincoln Gen. Ins. Co. v Alev Med. Supply Inc. (2009 NY Slip Op 29389)

https://www.beynensonlaw.com/case-law/lincoln-gen-ins-co-v-alev-med-supply-inc-2009-ny-slip-op-29389/

Court
District Court of Nassau County, First District
Judge
Hirsh, J.
Decided
September 28, 2009
Citation
2009 NY Slip Op 29389 · 25 Misc 3d 1019
Posture
Default or vacatur
Outcome
Provider prevailed
Later history
Reversed by Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc. (2011 NY Slip Op 21012)
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Timeliness and preclusion Defaults and vacatur
Cite as
Lincoln Gen. Ins. Co. v Alev Med. Supply Inc., 25 Misc 3d 1019 (Dist Ct, Nassau County, 1st Dist 2009)

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 insurer may not recover paid no-fault benefits for undelivered supplies when it failed to timely deny the claim for billing fraud. The insurer partially paid the provider and denied the balance on fee-schedule grounds without seeking verification. The assignor later testified at an EUO that the supplies were never received. Applying 11 NYCRR 65-3.8 (a) (1) and Fair Price Med. Supply Corp. v Travelers Indem. Co., the court held that a reimbursement action would evade the no-fault claim deadlines. The District Court, Nassau County, denied the insurer's default-judgment motion and dismissed the action for failure to state a claim, without precluding fraud reporting or criminal restitution under Penal Law § 60.27.

Reported in New York Official Reports at Lincoln Gen. Ins. Co. v Alev Med. Supply Inc. (2009 NY Slip Op 29389)

Lincoln Gen. Ins. Co. v Alev Med. Supply Inc.
2009 NY Slip Op 29389 [25 Misc 3d 1019]
September 28, 2009
Hirsh, J.
District Court Of Nassau County, First District
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 30, 2009

[*1]

Lincoln General Insurance Company, Plaintiff,
v
Alev Medical Supply Inc., Defendant.

District Court of Nassau County, First District, September 28, 2009

APPEARANCES OF COUNSEL

Law Offices of Nancy S. Kinden for plaintiff.

{**25 Misc 3d at 1020} OPINION OF THE COURT

Fred J. Hirsh, J.

Plaintiff moves for leave to enter a default judgment.

Background

This case presents the issue of whether a no-fault insurance carrier that has paid no-fault benefits can sue a provider to recover no-fault benefits paid on a fraudulent claim.

Andrey Armstrong was injured in an automobile accident on September 5, 2008.

On October 4, 2008 and October 9, 2008, Alev Medical Supply, Inc. purportedly provided medical supplies to Armstrong. Armstrong assigned his right to no-fault benefits for these items to Alev.

Alev submitted the bills for these medical supplies to the plaintiff Lincoln General Insurance Company. Lincoln provided no-fault insurance benefits for Armstrong for claims arising out of Armstrong’s September 5, 2008 motor vehicle accident.

Lincoln received the bills from Alev on November 10, 2008.

Lincoln paid the bills in part and denied the bill in part on December 4, 2008. Lincoln issued checks to Alev for the portions of the bills it paid and issued denials for the balance of the bills. Lincoln denied a portion of the bills on the grounds the charges for the medical supplies and equipment were not in accordance with the no-fault payment schedule (11 NYCRR part 68).

Alev received and deposited the checks issued in payment of the claims.

On December 18, 2008, Armstrong testified at an examination under oath (11 NYCRR 65-1.1 [d]) that he never received any of the equipment Alev claims it provided to him, for which Alev billed Lincoln and for which Lincoln paid.

Lincoln commenced this action seeking to recover the money it paid to Alev on the claim.

Alev has defaulted in the action. Lincoln now moves for leave to enter a default [*2]judgment.

Discussion

An insurer has 30 days from receipt of a no-fault claim to pay or deny the claim. (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Kingsbrook Jewish Med. Ctr. v{**25 Misc 3d at 1021} Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009]; 11 NYCRR 65-3.8 [a] [1].)

An insurer’s time to pay or deny a claim is tolled or extended if the insurer timely requests verification and/or upon receipt of the verification, timely requests additional verification of the claim. (St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2d Dept 2008]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2d Dept 2005], lv denied 7 NY3d 704 [2006].)[FN1] When an insurer timely requests additional verification, the 30-day period in which to pay or deny the claim is tolled pending receipt of the additional verification. (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., supra; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2d Dept 2006].)

Lincoln did not request verification of the claim submitted by Alev.

With limited exceptions, none of which are relevant to this case, an insurer is precluded from raising defenses including fraud not asserted in a timely denial. (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Hospital for Joint Diseases v Travelers Prop.{**25 Misc 3d at 1022} Cas. Ins. Co., supra; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009].)

Lincoln could have denied the claim on the grounds it was fraudulent. (Fair Price Med. Supply Corp. v Travelers Indem. Co., supra.) Lincoln did not. It paid the claim in part and denied the claim in part. The denial of the claim was based not upon fraud but upon the charges not being in accordance with the no-fault payment schedule.

The purpose of the No-Fault Law is “to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists.” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., supra; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., supra.) An insurer can contest an illegitimate or fraudulent claim, but it must do so within the strict time periods and processes established by the No-Fault Law and regulations. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

The core objective of the No-Fault Law and regulations is “to provide a tightly [*3]timed process of claim, disputation and payment.” (Id. at 281; see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009].)

Permitting Lincoln to recover in this action would allow an insurer to avoid or evade the time restrictions of the No-Fault Law and regulations by paying and then investigating a claim and suing to recover the previously paid benefits if the investigation reveals the claim was fraudulent. To permit this would subvert the entire no-fault system which establishes strict time limits by which an insurer must process, dispute and pay a claim.

The No-Fault Law and regulations require insurers to promptly investigate and pay claims. The regulations provide insurers with the verification process in order to obtain additional information designed to ferret out illegitimate or fraudulent claims.

While the 30-day period plus any applicable tolls for paying or denying a claim may be “too short a time frame in which to detect billing fraud, any change is up to the Legislature.” (Fair Price Med. Supply Corp. v Travelers Indem. Co. at 565.)

All bases that an insurer has for denying a no-fault claim, except for specific and limited exceptions, must be raised in a timely denial.[FN2] The only way an insurer can avoid paying a fraudulent no-fault claim is to deny the claim as fraudulent in a timely denial and to assert and prove the defense at trial. (Id.; Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y., 24 Misc 3d 1225[A], 2009 NY Slip Op 51620[U] [Civ Ct, Richmond County 2009].){**25 Misc 3d at 1023}

One of the elements of an application for leave to enter a default judgment is proof of a cause of action against the defendant. (Francisco v Soto, 286 AD2d 573 [1st Dept 2001]; Joosten v Gale, 129 AD2d 531 [1st Dept 1987]; Siegel, NY Prac § 295 [4th ed].) Lincoln’s complaint fails to state a claim upon which relief can be granted.

Nothing in this decision precludes Lincoln from reporting this apparent insurance fraud (Penal Law art 176) to the appropriate law enforcement authorities or from obtaining restitution should Alev be prosecuted and found guilty of insurance fraud in connection with this claim. (Penal Law § 60.27.)

For the foregoing reasons, plaintiff’s motion for leave to enter a default judgment is denied. The action is dismissed.

Footnotes

Footnote 1: An insurer that seeks additional information about a claim can obtain verification by sending the claimant a request for verification within 10 business days of receipt of the claim. (11 NYCRR 65-3.5 [a].) Upon receipt of the initial verification, an insurer can seek additional information or proof regarding the claim by sending the claimant a request for additional verification within 15 business days of receipt of the prescribed verification forms. (11 NYCRR 65-3.5 [b].)

Footnote 2: An insurer is not precluded from raising the defenses of no coverage (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]) fraudulent incorporation (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and staged accident (Central Gen. Hosp. v Chubb Group of Ins. Cos., supra; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2d Dept 2005]; V.S. Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ Ct, Kings County 2006]) if such defenses are not asserted in a timely denial. Although generally not considered a defense not subject to preclusion if not asserted in a timely denial, an insurer cannot be required to pay more than the no-fault policy limits. (Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2d Dept 2004].)

Cited in this decision

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

  • 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.
  • Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
  • St. Barnabas Hosp. v American Tr. Ins. Co. (2008 NY Slip Op 09585)The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion.
  • Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484)An insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
  • Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953)An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.
  • Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946) FollowedAn insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
  • Careplus Med. Supply, Inc. v Selective Ins. Co. of Am. (2009 NY Slip Op 29109)New Jersey law governed the claim because the insurance contract and relevant residence and vehicle contacts centered in that state.
  • LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 02481)No-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling.
  • Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. (2009 NY Slip Op 51620(U))A workers' compensation priority defense is subject to the 30-day denial requirement and does not constitute lack of coverage.
  • State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416)Fraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).
  • V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000)An insurer asserting a staged collision at trial need only rebut presumed coverage; the provider retains the burden of persuasion.
  • Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413)The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.

Cited by

A label shows how the later decision treated this one.

  • Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc. (2011 NY Slip Op 21012) ReversedAn insurer that timely pays a no-fault claim may seek recovery when it later discovers that the claim was fraudulent.
  • Alev Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 50813(U)) FollowedAn insurer may not obtain discovery concerning defenses that are precluded and cannot be raised at trial.
  • Quality Psychological Servs., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51423(U)) FollowedAn insurer may not amend its answer to assert fraud and unjust-enrichment counterclaims based on a precluded fraudulent-billing defense.
  • Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20285)An insurer may not obtain summary judgment for EUO nonappearance based on a demand for advance production of corporate and financial records.

Similar decisions

  • Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
  • Lenox Hill Radiology MIA, P.C. v American Tr. Ins. Co. (2008 NY Slip Op 28053)The insurer failed to establish timely verification requests because its affidavits omitted when it received the provider's bill.
  • Dilon Med. Supply Corp. v Travelers Ins. Co. (2005 NY Slip Op 25113)A medical supplier must respond to a proper request for a letter of medical necessity even if it lacks clinical expertise.
  • Inwood Hill Med. v Allstate Ins. Co. (2004 NY Slip Op 50565(U))The insurer's EUO evidence failed to raise a triable issue that the injuries did not arise from an insured incident.
  • D & R Med. Supply v Progressive Ins. Co. (2009 NY Slip Op 29139)A provider need not supply verification materials outside its possession, custody or control after advising the insurer that it lacks them.
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