April 14, 2006

AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))

https://www.beynensonlaw.com/case-law/at-med-p-c-v-utica-mut-ins-co-2006-ny-slip-op-50739u/

Court: Appellate Term, Second Department
Decided: April 14, 2006
Citation: 2006 NY Slip Op 50739(U) · 11 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage Timeliness and preclusion Verification requests
Legal questions: No covered accident (founded belief) · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

AT Med. P.C. v Utica Mut. Ins. Co., 11 Misc 3d 142(A), 2006 NY Slip Op 50739(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion. The insurer's denials cured deficiencies in proof of claim submission, but were untimely under 11 NYCRR 65-3.8 (c). A request to execute and return an EUO transcript did not toll the deadline under the regulations applicable to these claims, which did not require EUOs; the insurer also failed to prove mailing of the request. Fraudulent-billing and excessive-treatment defenses were precluded. Nevertheless, the insurer's submissions established a founded belief that the injuries did not arise from an insured incident, raising a coverage issue sufficient to defeat the motion.

Reported in New York Official Reports at AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))

[*1]

AT Med. P.C. v Utica Mut. Ins. Co.

2006 NY Slip Op 50739(U) [11 Misc 3d 142(A)]

Decided on April 14, 2006

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-699 K C.

AT Medical P.C. Aao Oleg Vayman, Respondents,
against
Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered on March 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary [*2]
Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Any deficiencies in plaintiff’s moving papers concerning proof of its submission of the claims were cured by defendant’s denial of claim forms attached to plaintiff’s moving papers, which adequately established that plaintiff sent, and that defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists]; Ultra DiagnosticsImaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

Defendant’s denials of plaintiff’s claims were not timely made within the 30-day statutory period within which it was required to pay or deny the claims (11 NYCRR 65-3.8 [c]). While an insurer’s timely verification requests and compliance with the follow-up verification requirements may extend the 30-day period (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]), defendant’s contention that its request that plaintiff’s assignor execute and return the transcript of his examination under oath (EUO) tolled the 30-day period is without merit since the insurance regulations in effect at the time the claims were submitted did not even require the claimant to appear for an EUO (see Ocean Diagnostic Imaging P.C. v State
Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). In any event, even assuming that a request that a claimant execute and return an EUO transcript would constitute a valid basis for tolling the 30-day claim determination period, defendant herein failed to proffer proper proof of having mailed said request (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant also opposed the motion on the ground of fraud. To the extent that defendant’s claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, these are defenses subject to the 30-day preclusion remedy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra; Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2005]; Melbourne Med., P. C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of
the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendant’s submissions were sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 14, 2006

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 covered accident (founded belief)

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Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried

Held the insurer's submissions sufficed to show a founded belief that the collision was in furtherance of an insurance fraud scheme, a non-precludable defense, so the provider's summary judgment motion should have been denied.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held deficiencies in the provider's proof of submitting the claims were cured by the insurer's denial forms, which established the claims were sent and received, so the prima facie case was made.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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: Different mailing results for different documents or claims in one decision (rules on the question, but another ground decided the case)

Held the insurer's denial forms established that the provider sent and the insurer received the claims, but the insurer offered no proper proof of mailing its request to execute the EUO transcript, so that request could not toll the 30 days.

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, 55 (this one included) are in the same category.

Cited in this decision

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545)The insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
Ultra Diagnostics Imaging v Liberty Mut. Ins. Co. (2005 NY Slip Op 25402)The insurer's wage-verification fraud allegations failed to establish a lack-of-coverage defense exempt from untimely-denial preclusion.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
Hospital for Joint Diseases v ELRAC, Inc. (2004 NY Slip Op 07140)An unanswered verification demand tolls the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (1) (i).
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24342)The insurer's investigator established a founded belief of a staged collision, raising a coverage issue despite an untimely denial.
Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2005 NY Slip Op 25343)An insurer's untimely denial precludes a defense that the provider billed for medical supplies never furnished after a covered accident.

Similar decisions

Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 50611(U))The insurer raised a factual issue as to whether the collision furthered an insurance fraud scheme despite its late denial.
Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials.
A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.
Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co. (2005 NY Slip Op 50081(U))The insurer's claims-specialist affidavit raised a triable coverage issue based on a founded belief that the collision involved fraud.
M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 51286(U))The insurer failed to prove mailing of its EUO transcript request, leaving its denials untimely and fraudulent-claim defenses precluded.