November 30, 2018

First Am. Alliance, Inc. v Ameriprise Ins. Co. (2018 NY Slip Op 51765(U))

https://www.beynensonlaw.com/case-law/first-am-alliance-inc-v-ameriprise-ins-co-2018-ny-slip-op-51765u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51765(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Medical necessity
Legal questions: Lack of medical necessity · Exhaustion of policy limits · Proof of mailing (see the maps)

Cite as

First Am. Alliance, Inc. v Ameriprise Ins. Co., 2018 NY Slip Op 51765(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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's payments of other claims after denying the claims sued upon do not warrant summary judgment for exhausted coverage. Applying 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co., the Appellate Term, Second Department, rejected the insurer's allegation that subsequent payments exhausted available coverage. For one equipment bill, however, the insurer established a timely denial and submitted an affirmation and affirmed peer review providing a factual basis and medical rationale for lack of medical necessity. The provider did not rebut that showing. The court modified the order to grant dismissal of that bill and otherwise affirmed the denial of the insurer's motion.

Reported in New York Official Reports at First Am. Alliance, Inc. v Ameriprise Ins. Co. (2018 NY Slip Op 51765(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

First American Alliance, Inc., as Assignee of Claudia Davis, Respondent,
against
Ameriprise Ins. Co., Appellant.

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 25, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a bill for $630 is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint. In support of its motion, defendant alleged that, after it had denied the claims that are the subject of this action, it paid other claims and that those subsequent payments had exhausted the available coverage. However, even if true, this allegation does not warrant summary judgment dismissing the complaint on the basis of an exhaustion of available coverage defense (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]).

With respect to a bill for $630, defendant established that the denial of claim form, which had denied that claim on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]further submitted an affirmation and an affirmed peer review report which set forth a factual basis and medical rationale for the orthopedic surgeon’s determination that there was a lack of medical necessity for the equipment at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on the bill for $630 is granted.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

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.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Granted the insurer summary judgment on the $630 bill because its affirmed orthopedic peer review set forth a factual basis and medical rationale for finding the equipment unnecessary and the provider did not rebut it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Exhaustion of policy limits

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Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Exhaustion defense fails on the law or the insurer's own records: coverage remained when this claim became payable

Held that the insurer's claim that payments of other claims made after it denied these claims exhausted coverage, even if true, did not warrant summary judgment, because denied claims kept their priority under 65-3.15.

Limits exhaustedCoverage left when dueExhaustion not provedTriable issue / hearingDefense not heardThis decisionCites it or cited by itCited or followed

Of the 68 decisions on this question in the Second Department courts and the Court of Appeals, 5 (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: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer established that its denial of the $630 bill on medical-necessity grounds was timely mailed.

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

Cited in this decision

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

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2017 NY Slip Op 27097) FollowedAn insurer cannot establish policy exhaustion through payments made after it denied a fully verified claim.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

First Class Med., P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 50477(U))The insurer's EUO letters were sufficient because they identified the assignor, accident date and file number.
Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co. (2018 NY Slip Op 51630(U))The insurer failed to show that policy limits were exhausted when the provider's claim was complete.
JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Accelerated Med. Supply, Inc. v Ameriprise Ins. Co. (2020 NY Slip Op 50741(U))The insurer's EUO notices were sufficient because the initial letter identified the assignor, accident date, and file number.