March 31, 2005
King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50450(U))
https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-kemper-auto-home-ins-co-2005-nyslipop-50450u/
- Decided
- March 31, 2005
- Citation
- 2005 NY Slip Op 50450(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Distinguished in 1 and followed in 4 later decisions (see Cited by)
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.
Reported in New York Official Reports at King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50450(U))
| King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co. |
| 2005 NYSlipOp 50450(U) |
| Decided on March 31, 2005 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: March 31, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-350 K C
against
KEMPER AUTO & HOME INS. CO., Respondent.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Battaglia, J.), entered December 3, 2003, as denied its motion for summary judgment.
Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding partial summary judgment in favor of plaintiff in the principal sum of $660 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon and for all further proceedings on the remaining claim; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiff provider established its entitlement to summary judgment prima facie by proof that it submitted statutory claim forms, setting forth the fact and the amount of the loss sustained ($660 and $895), and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary 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]). Defendant issued timely requests for verification in the form of independent medical examinations (IMEs) (11 NYCRR 65.15 [c] [1], now 11 NYCRR 65-3.5 [a]). Upon assignor’s failure to appear for the first scheduled IME, defendant issued a claim denial form for the $660 claim, citing as the ground for denial, the eligible injured person’s failure to attend the IME. While this denial was timely under the 30-day claim determination rule (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [*2][1]), the sole ground set forth therein, the failure to appear for a post-claim IME, under the circumstances presented, lacked merit as a matter of law. Having requested IMEs post-claim IMEs, defendant was obligated to “follow up” its initial verification request with a second IME request within 10 days of the date on which the party to be examined failed to respond (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [c]; 11 NYCRR 65.15 [e] [2], now 15 days per 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). By failing to “follow up,” defendant abandoned its request for verification and therefore may not, as a matter of law, use the failure to provide verification, here an IME, as a basis to deny the claim (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Thus, the denial form was ‘ineffective to avoid preclusion” (Amaze Med. Supply v Eagle Ins. Co., 3 Misc 3d at 44; see Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d at 664) as to all defenses to the $660 claim with exceptions here inapplicable, and summary judgment should have been granted thereon (see S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists]).
With respect to the $895 claim, which defendant concededly never paid or denied, defendant asserted plaintiff’s failure to respond to two verification request letters, dated January 18, 2000 (3 days after the claim’s receipt) and February 19, 2000 which, if timely mailed, would constitute a defense to the action on the claim as an insurer need not pay or deny a claim until all requested verification is received (see 11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]). In our view, defendant’s proof of mailing sufficed to raise a triable issue of the timeliness of mailing. Thus, summary judgment was properly denied as to the claim for $895.
Accordingly, as to the claim for $660, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and as to the remaining claim, the matter is remanded for all further proceedings thereon.
Decision Date: March 31, 2005
Legal questions (4)
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.
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
Held the insurer's proof of mailing its two verification request letters sufficed to raise a triable issue on their timely mailing, defeating summary judgment on the unpaid claim.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Held the post-claim IME no-show denial lacked merit as a matter of law because the insurer never sent the required follow-up IME request after the first nonappearance, abandoning the request.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Fact issues remain on whether the verification defense applies
Held a triable issue existed whether the insurer timely mailed two verification requests that, if mailed, meant it need not pay or deny until verification was received, so summary judgment was denied on that claim.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
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 the provider established its prima facie case by proof that it submitted claim forms setting forth the losses and that payment was overdue.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
- Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 07663)A timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires.
Cited by
A label shows how the later decision treated this one.
- Sea Side Med., P.C. v State Farm Mut. Auto Ins. Co. (2006 NY Slip Op 26246) DistinguishedA verification follow-up sent only 28 days after the initial request does not preserve the insurer's time to pay or deny a claim.
- All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 28207) FollowedA preclaim EUO set beyond 30 days after claim receipt must be rescheduled within that period to support a nonappearance defense.
- Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192) FollowedA fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods.
- Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U)) FollowedThe insurer's EUO request did not toll one claim, and its opposition failed to rebut medical necessity on the other.
- A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26131) FollowedA provider that elects no-fault arbitration cannot litigate the same claims even if arbitration never reaches their merits.
- Vista Surgical Supplies, Inc. v General Assur. Co. (2006 NY Slip Op 51034(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
Similar decisions
- King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
- King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))The insurer's failure to send a timely follow-up verification request ended the toll and precluded its verification defense.
- King’S Med. Supply v Progressive Ins. (2004 NY Slip Op 50311(U))A provider cannot invoke preclusion to avoid a defense raised by its own proof that billed equipment was not prescribed.
- Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50743(U))The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests.
- King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))Failure to attend an IME scheduled before the insurer receives the provider's claim is not a proper basis for denying no-fault benefits.