All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 50766(U))

Civil Court of the City of New York, Kings County

4490/06

Noach Dear, J.

Plaintiff All-Boro Medical Supplies, Inc. commenced this action to recover assigned first-party no-fault benefits in the amount of $822.00 for medical supplies that it provided to its assignor, Ramel King, who was purportedly injured in an automobile accident on January 30, 2005.

On February 13, 2008, the parties agreed to a trial based on stipulated facts. While there are no questions of facts requiring resolution, the matter presents an interesting question of law; whether plaintiff’s failure to submit a prescribed NF-3 claim form in response to defendant’s requests for additional verification of the claim tolled the 30 day period in which defendant had to pay or deny the claim? For the following reasons, the court answers this question in the affirmative.

Underlying Facts:

Following the accident, plaintiff provided Mr. King with various assistive medical equipment which included a heating lamp with infrared element, a massager for reduction of muscle spasm and a TENS unit. On February 16, 2005, Mr. King assigned his rights to collect first-party no-fault benefits for the equipment to the plaintiff. On May 6, 2005, Edward Shapiro, Esq., plaintiff’s counsel, submitted a claim for the first-party no-fault benefits to defendant. After receiving the claim, defendant served upon the plaintiff a request for additional verification of the claim demanding that plaintiff submit a prescribed NF-3 claim form. When plaintiff failed to comply with the request, defendant made a follow-up request. The parties have stipulated that the initial and follow-up request were made in accordance with protocols for requesting additional verification set forth in the no-fault regulations.

While plaintiff has not yet provided defendant with a NF-3 claim form, plaintiff submitted other materials as proof of claim, including letters of medical necessity from Alex Khait, D.C. and Alexander Rozenberg, M.D., which indicate that Mr. King was diagnosed as suffering from unspecified neuralgia, radiculitis and lumbosacral and cervical injuries as a result of the accident.

COMMENTS:

It is well settled that 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 (Insurance Law § 5106(a); 11 NYCRR 65-3.5; see also Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 278, 660 NYS2d 536, 683 NE2d 1 [19970 ). An insurer’s failure to pay a no-fault claim within 30-day renders no-fault benefits overdue ( see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1] ).

The 30-day period may be extended if the insurer demands additional verification of the claim ( see 11 NYCRR 65.15[d][1],[e]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 AD3d 492, 493, 819 NYS2d 268 [2nd Dep’t 2006]; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 569, 774 NYS2d 72 [2nd Dep’t 2004] ). If requested verification is not supplied to the insurer within 30 days from the insurer’s initial request, the insurer is required to issue a follow- up request in accordance with 11 NYCRR 65.15 [e][2] ( see New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584, 744 NYS2d 201 [2nd Dep’t 2002] ). Parenthetically, “[a] claim need not be paid or denied until all demanded verification is provided” ( New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72, see Insurance Law § 5106[a]; 11 NYCRR 65-3.5[c], 65-3.8[a][1]; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., supra at 584, 744 NYS2d 201; Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554, 692 NYS2d 665 [2nd Dep’t 1999] ). Further, when a medical provider fails to provide properly requested verification of a claim, the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the provider is premature (New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72).

The parties have stipulated that plaintiff submitted the claim on May 6, 2005 and that defendant’s requests for a prescribed NF-3 claim form were made in accordance with the protocols for requesting additional verification of a claim. The parties have also stipulated that to date, plaintiff has not provided a prescribed NF-3 claim form which is also know as a verification of treatment by attending physician or other provider of health service form. The required contents of this form is contained in Appendix 13 of the Ch. III, Subch. B, Pt. 65 of Insurance Department Regulations.

Plaintiff maintained at trial that defendant was required to “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (Insurance Department Regulation 11 N.Y.C.R.R. § 65-3.5[f] ). Plaintiff further maintained that the various materials it provided to the defendant in connection with the claim met this requirement. Plaintiff argued that since defendant did not pay or deny the claim within 30 days of receipt of these materials, no-fault benefits are overdue.

Defendant maintained that 11 N.Y.C.R.R. § 65-3.5[f] gave it the unconditional right to request the submission of a prescribed NF-3 claim from as additional verification of the claim and that since plaintiff has yet to provide one, the 30 day period in which it has to pay or deny the claim continues to be tolled.

The question of law presented turns on how 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted. 11 N.Y.C.R.R. § 65-3.5(f) provides:

An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits, the [*3]prescribed verification of treatment by attending physician or other provider of health service, and the prescribed hospital facility form.

“[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966, 696 NE2d 978 [1998] ). Further, “meaning and effect should be given to all language of a statute * * *. Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning” (Cohen v. Lord, Day & Lord , 75 NY2d 95, 100, 551 NYS2d 157, 550 NE2d 410 [1989] ; see also, McKinney’s Cons. Laws of NY, Book 1, Statutes § 231, at 390). “Generally, the same canons of construction are applicable to legislation and administrative regulations” (Garzilli v. Mills, 250 AD2d 131, 137, 681 NYS2d 176, 179 [3rd Dep’t 1998] ).

Applying these principles, 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted as giving insurers the right to request the submission of one of the prescribed forms referred to in the regulation as additional verification of a claim, even where materials were submitted as proof of claim that contained substantially the same information that a prescribed form requires. This interpretation gives meaning and effect to all the language in 11 N.Y.C.R.R. § 65-3.5(f). If the court were to adapt plaintiff’s urged construction, the court would in effect be rejecting as superfluous the entire second sentence of 11 N.Y.C.R.R. § 65-3.5(f) which unequivocally states that insurers may require the submission of a prescribed form. Further, it is not impracticable to give the first and second sentence of the regulation distinct and separate meanings. The first sentence can be viewed as controlling what insurers must accept as proof of claim but not as a limitation on what they may seek as additional verification of a claim. The second statement can be viewed clear direction that a request for a prescribed form is a valid request for additional verification.

This result also comports with those reported cases which have addressed an insurer’s entitlement to the submission of a prescribed no-fault forms as additional verification of a claim (see First Help Acupuncture, P.C. v. Progressive Northeastern Ins. Co.,15 Misc 3d 144(A), 2007 NY Slip Op. 51167(U) [App Term, 2d & 11th Jud Dists] (proof of insurer’s timely denial of claim on the ground that on the ground “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed” raised triable issue of fact as to plaintiff’s entitlement to summary judgment); Metroscan Medical Diagnostics, P.C. v. Progressive Casualty Insurance Co., 15 Misc 3d 126 (A), 2007 NY Slip Op. 50500 (U) [App. Term, 9th & 10th Jud Dists] (30 day period tolled where plaintiff’s failed to provide assignment of benefits in the form required by the No Fault regulations]; see also Doshi Diagnostic Imaging Services v. Progressive Insurance Co., 12 Misc 3d 144 (A), 2006 NY Slip Op. 51430 (U) [App. Term, 9th & 10thth Jud Dists] ).

Based on the preceding analysis, this Court determines that defendant has demonstrated that the 30 day period in which it had to pay or deny the claim was tolled by its request for a prescribed NF-3 form. Hence, plaintiff has failed to establish that payment of no-fault benefits is overdue.

Accordingly, it is hereby

ORDERED that judgment be entered in defendant’s favor dismissing the claim as premature (New York Hospital Medical Center of Queens v. Country-wide Insurance Co., 295 [*4]AD2d 583 [2d Dept., 2002] ).

This constitutes the Decision and Order of the Court.

Dated: April 11, 2008_____________________________

Noach Dear

Civil Court Judge