January 26, 2009

Lopes v Liberty Mut. Ins. Co. (2009 NY Slip Op 51279(U))


The main issues in this case were whether the plaintiff had properly submitted claims for no-fault benefits, whether she had standing to sue, and if the insurance company had valid reasons for denying the claims. The court considered evidence of claims submitted by medical providers, the plaintiff's assignment of benefits to those providers, and the regulations regarding assignment of benefits. The court held that the plaintiff did not need to prove she had issued payment for treatment, but did need to show that claims were submitted and not paid within 30 days. The court found that the plaintiff's causes of action seeking reimbursement for services provided by Dr. Patricia D'Imperio were valid, but those seeking reimbursement for services provided by other medical providers had been properly dismissed. The court also found that the plaintiff had demonstrated a cause of action and that the litigation was not frivolous, so the award of attorney's fees to the defendant was reversed. The court remanded the case for further determination of the plaintiff's cross motion to strike the defendant's answer.

Reported in New York Official Reports at Lopes v Liberty Mut. Ins. Co. (2009 NY Slip Op 51279(U))

Lopes v Liberty Mut. Ins. Co. (2009 NY Slip Op 51279(U)) [*1]
Lopes v Liberty Mut. Ins. Co.
2009 NY Slip Op 51279(U) [24 Misc 3d 127(A)]
Decided on January 26, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2009



2006-1984 Q C.
Kathy Lopes, Appellant,


Liberty Mutual Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 27, 2006. The judgment, entered pursuant to an order granting defendant’s motion to dismiss the complaint and denying, as academic, plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126, dismissed the complaint and awarded defendant attorney’s fees and costs totaling $6,904.

Judgment reversed without costs, so much of the order as granted the branches of defendant’s motion which sought to dismiss the causes of action seeking to recover the sum of $593.94 for services allegedly provided by Dr. Patricia D’Imperio on April 5,
1999 and April 19, 1999, and the sum of $188.39 for services allegedly provided by Franklin Immediate Medical Care, P.C. on January 12, 1999, and so much of the order as awarded costs and attorney’s fees to defendant, vacated, the branches of defendant’s motion seeking dismissal of the aforesaid causes of action denied, and matter remanded to the court below for determination de novo of plaintiff’s cross motion to strike defendant’s answer pursuant to CPLR 3126.

Plaintiff commenced this action to recover the sum of $25,000, representing first-party no-fault benefits for medical expenses she allegedly incurred after she was injured in an automobile accident on November 9, 1998. The Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) and awarded defendant attorney’s fees, finding that plaintiff had assigned her rights to collect no-fault benefits, and that, in any event, [*2]she did not plead or prove that she had paid her providers for the bills upon which she was suing, and did not demonstrate that payment was overdue. The court denied, as academic, plaintiff’s cross motion seeking to strike defendant’s answer pursuant to CPLR 3126. Judgment was entered, and plaintiff now appeals.

Defendant argued in its motion to dismiss (1) that plaintiff failed to state in her complaint that “a complete and proper proof of claim was submitted to the insurance company and the Insurance Company failed to pay or deny the claim within thirty (30) days,” (2) that defendant has no record of having received any notices of claims being made by plaintiff or documentation from plaintiff evidencing her out-of-pocket expenses
or direct payments to providers, and (3) that plaintiff lacks standing to sue because she has assigned all of her rights under the policy of insurance. We note that plaintiff is not required to prove that she issued payment for treatment (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

In opposition to defendant’s motion, plaintiff submitted, inter alia, NF-10 denial of claim forms, allegedly issued by defendant, denying claims for services rendered to plaintiff, submitted by Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., All County Open MRI & Diagnostic Radiology, and Dr. Patricia D’Imperio. To the extent that plaintiff seeks payment of the claims identified in her bill of particulars other than those submitted by these four providers, we find at the outset that plaintiff failed to defeat defendant’s CPLR 3211 (a) (7) motion (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530, 530 [2007] [where evidence is submitted on a CPLR 3211 [a] [7] motion to dismiss, the court may consider whether the plaintiff has a cause of action, rather than whether it has stated one]) by a showing that said claims were in fact submitted to defendant and that defendant failed to pay them within 30 days (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Where a provider commences suit to recover first-party no-fault benefits, the submission of an NF-10 denial of claim form, while not sufficient on its own to make out a no-fault provider’s prima facie case on its motion for summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), does establish prima facie that the insurer received the claims referenced therein as having been submitted by the provider (see e.g. Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), and that the insurer did not pay the claim. Accordingly, the submission of denial of claim forms must be deemed sufficient to defeat a CPLR 3211 (a) (7) motion to dismiss a provider’s action in which the defendant argues that the provider failed to allege that a claim was submitted and not paid within 30 days. The question before this court is whether, as in the instant case brought by the eligible injured person (EIP), the demonstration that an insurer received a claim from a provider for services rendered to such EIP, and that the claim was not paid, is sufficient to show that the plaintiff EIP has a cause of action for payment of that claim so that the insurer’s CPLR 3211 (a) (7) motion to dismiss should be denied.

The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance [*3]
Department Regulations [11 NYCRR] § 65-3.11 [a]). In the absence of an assignment, a claim submitted by a health care provider must be deemed to have been submitted on behalf of the individual who has the right to be paid under the no-fault regulations. An insurer seeking dismissal pursuant to CPLR 3211 (a) (7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment.

Defendant proffered documents that, it claims, demonstrate that plaintiff assigned her claims under the no-fault regulations to Franklin Immediate Medical Care, P.C., Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology. Defendants did not submit any documentation purporting to demonstrate that plaintiff assigned her claims for any services rendered by Dr. Patricia D’Imperio. As plaintiff demonstrated that claims totaling $593.94 were submitted by Dr. D’Imperio for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

On the other hand, defendant submitted documents that clearly assign plaintiff’s claims for services rendered by Dr. John G. Rupolo, D.C., P.C., and All County Open MRI & Diagnostic Radiology to those providers, respectively. As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211 (a) (7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.

Defendant argues that the claim submitted by Franklin Immediate Medical Care, P.C., should be dismissed because plaintiff assigned that claim as well. We disagree. The document signed by plaintiff states:
“I hereby authorize payment directly to the above named medical provider of the automobile no-fault benefits otherwise payable to me but not to exceed the balance due of the medical provider’s permissible charges under Article 18 of the Insurance Law for services rendered. I understand that I am financially responsible to the medical doctor for charges not covered by this authorization and permitted under Article 18.”
Such an authorization is specifically addressed by the current no-fault regulations, which state that the “[e]xecution of an authorization to pay benefits shall not constitute or operate as a transfer of all rights from the eligible injured person to the provider” (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [1], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]). An assignment, pursuant to the current regulation, must state that it assigns “all rights, privileges and remedies” to the assignee (Insurance Department Regulations [11 NYCRR] § 65-3.11 [b] [2], previously Insurance Department Regulations [11 NYCRR] § 65.15 [j] [amended December 31, 2001]; Insurance [*4]Department Regulations Appendix 13 [NYS Form NF-3, NF-4, NF-5, NF-AOB]). Under the clear and unambiguous language of the current regulations, the above-quoted document is not an assignment. However, this language was added on December 31, 2001, and therefore was not in effect during the relevant time periods involved herein. Nevertheless, assignment language must show “the intention of the owner of a right to transfer it” (Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 612 [2004]), and we find that the document executed by plaintiff does not show her intention to transfer her rights under the No-Fault Law to Franklin Immediate Medical Care, P.C. As plaintiff demonstrated that a claim in the amount of $188.39 was submitted by Franklin Immediate Medical Care, P.C. for services rendered to plaintiff, and in the absence of an assignment demonstrating that the claim was submitted on the provider’s own behalf, plaintiff’s claim should not have been dismissed to the extent that it seeks reimbursement for those services.

In view of the foregoing, the court below improperly awarded defendant attorney’s fees, as plaintiff has demonstrated that she has a cause of action and this litigation cannot be deemed frivolous (see Rules of the Chief Administrator [22 NYCRR] § 130-1.1).

Inasmuch as the lower court denied plaintiff’s cross motion to strike the answer pursuant to CPLR 3126 as academic in light of its dismissal of the complaint, the matter is remanded to the court below for a determination de novo of said cross motion.

Pesce, P.J., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the judgment in the following memorandum:

In the first instance, it should be understood that plaintiff is an individual who was involved as a pedestrian in an automobile accident which occurred on or about November 9, 1998. As a result of that accident, Ms. Lopes sought a variety of medical treatments, and consequently she executed documents which, at the very least, authorized each of the providers of those health care treatments to obtain payment directly from the responsible no-fault insurance carrier.

Those health care providers who had rendered treatment to Ms. Lopes without receiving payment from her then submitted claims to the no-fault insurance carrier. Each of those claims was denied. The reason for the denial was the insurance carrier’s assertion that the eligible injured person, Ms. Lopes, failed to submit to independent medical examinations on four separate occasions. Some of those health care providers nevertheless commenced legal proceedings seeking payment.

Ms. Lopes also commenced her own direct action, the instant action, against the no-fault insurance carrier, demanding the payment of $25,000 for no-fault benefits and $20,000 for legal fees. In support of her claims, she submitted a bill of particulars purporting to establish bills for treatment that amount to slightly more than $4,500. There is no explanation as to how she or her attorney arrived at a $25,000 demand based upon approximately $4,500 of unpaid bills.

I note at the outset that in opposition to defendant’s motion to dismiss pursuant to CPLR 3211 (a) (7), plaintiff’s counsel asserted that various “documents” were attached to his affirmation when, in fact, they either were not attached at all, or, if attached, consisted of [*5]photocopies that are completely blacked out and therefore unreadable. Additionally, several purported bills that were attached to the bill of particulars did not include the service date in the photocopy submitted, or were simply handwritten pieces of paper and were not presented on a medical provider’s letterhead.

It is for these reasons and all of the facts within that I find it perfectly understandable why the motion court exercised its discretion in awarding counsel fees in favor of defendant in the sum of $6,904. Indeed, even a cursory reading of the majority opinion shows that, at best, plaintiff’s cause of action seeking $25,000 in compensatory damages and $20,000 in legal fees should be dismissed for failing to state a cause of action except for claims for $593.94 and $188.39, which amounts to a total of $782.33 out of $25,000. Indeed, those items are only allowed after a detailed analysis of the differences between an “authorization” and an “assignment,” a distinction plaintiff was clearly unaware of inasmuch as she demanded payment as to both. The majority’s finding that a claim filed by the provider for payment to it (the provider) may be deemed as a claim filed by the pro se plaintiff is unrealistic.

Here, the cause of action, as stated by Ms. Lopes in her complaint, contains the following facts she alleges establishes her claim:
“6. …The policy of insurance issued by defendant LIBERTY INSURANCE COMPANY, provided for payment of so-called no-fault benefits…’
7. The plaintiff was a pedestrian.
8. That plaintiff was involved in a no-fault’ accident on November 9, 1998 when the vehicle…insured by said defendant…was involved in a motor vehicle accident.
9. That solely as a result of that no-fault’ car accident, plaintiff sustained personal injuries.
10. That as a result…plaintiff sought hospital expenses, medical bills, loss of earnings…
11. That the defendant LIBERTY INSURANCE COMPANY has refused to pay and/or reimburse plaintiff for plaintiff’s hospital expenses, medical bills …”

I have included this reproduction of plaintiff’s complaint to emphasize the fact that there is no mention of any notice of claim being filed with the insurance carrier seeking payment. It certainly was not due to an understandable ignorance of the law or some oversight as occurs in complaints drafted by pro se litigants. Specifically, this complaint was drawn by an attorney. However, such fact is not of much significance. I submit the reason that there was no mention that a claim was filed by Ms. Lopes is simple: Ms. Lopes did not file any claims. [*6]

This failure, in and of itself, should prove to be fatal to the maintenance of this complaint.

Notwithstanding the foregoing, however, and for reasons to which I cannot subscribe, the majority herein finds that plaintiff not only does not have to assert this most elemental aspect of a no-fault cause of action, but also that plaintiff need not actually file the claim at all. While I have noted my disagreement therewith, both this Appellate Term and the Appellate Division, Second Department, have held that a plaintiff in a no-fault action need not provide any proof as to the validity of a claim (Uptodate Med. Servs., P.C. v Lumbermens Mut. Cas. Co., 20 Misc 3d 135[A], 2008 NY Slip Op 51502[U] [App Term, 2d & 11th Jud Dists and dissenting op of Golia, J., 2008]; see e.g. Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The minimum requirement set by these courts is that a plaintiff need only make two assertions:

1) That a claim was filed, and

2) That payment is overdue.
By the holding in this case, the majority now provides that a plaintiff need only make one assertion, to wit, that payment is overdue. The majority reasons that it then can search the record and determine if any claim was filed. Indeed, the claim does not even have to come from the plaintiff, who is presumably seeking payment for the claim. It is now sufficient if the plaintiff’s medical provider has filed a claim, even though the claim was filed by the medical provider on its own behalf and not on behalf of the plaintiff.

For me, it is remarkable to find that an individual can commence an action for the nonpayment of a claim that the individual never submitted. Indeed, the individual may not even know whether any claim was ever submitted and certainly does not know when it was submitted or what information was included in the claim form. Further, I do not understand how the majority reaches the conclusion that the NF-10 denial of claim form by the insurance company relates to a certain claim of which plaintiff is unable to assert any knowledge.

Nevertheless, by implication, the majority’s ruling in effect will serve as a predicate for defendant insurer to be exposed to two lawsuits for the same claim, a claim that was denied here due to plaintiff’s refusal to submit to no less than four medical examinations by defendant’s doctor.In this case it is clear and not refuted that:

1. Ms. Lopes assigned (or authorized) her rights to receive payment to the medical providers;
2. She did not pay for any treatments;
3. She did not file any claims seeking payment for covered expenses;
4. She did not appear at any of the four independent medical examinations she was required to submit to as a condition precedent;
5. She or her attorney failed to annex certain exhibits that were stated to be annexed;
6. She or her attorney annexed obviously unreadable “blacked out” photocopies of other purported exhibits; and
7. Generally, she and her attorney filed a baseless action, as stated by the Court below.
All of the above occurred without plaintiff even knowing whether any claim was filed.

The majority, in support of its holding, asserts that pursuant to the regulations concerning “assignments” of benefits that were in effect at that time, there is a distinction to be made between a complete “assignment” of rights and a mere “authorization” to pay benefits directly to a provider.

As the majority has applied that proposition to this case, I disagree.

Instead, I am in accord with the reasoning of the Civil Court, Queens County case of Gingold v State Farm Ins. Co. (168 Misc 2d 62 [1996]), which relied on the 1981 Appellate Term, First Department case of Vasquez v Aetna Cas. & Sur Co. (NYLJ, Jan. 27, 1981, at 5, col 1). The Civil Court quoted the Appellate Term in Vasquez as stating, “We construe the hospital insurance form . . . authorizing payment directly to the hospital … as an assignment of first party benefits . . .” (Gingold, 169 Misc 2d at 64). The Gingold court went on to state that the assignee of a claim is the real party in interest and he alone can bring suit; the assignor loses control . . . when he makes the assignment” (id.).

In considering the import of the instant decision as it applies to the vast majority of auto accidents involving no-fault benefits, the typical eligible injured person seeks and obtains medical services shortly after the accident without any out-of-pocket expenses. The reason that the eligible injured person does not pay out-of-pocket expenses is that the medical provider, in general terms, accepts an “assignment” from its patient in lieu of payment. In other words, it is willing to provide medical services in expectation of subsequently receiving payment from the insurance carrier within 30 days of submission of the bill.

If the action by this plaintiff were to become commonplace, it would, I submit, ultimately lead to a medical provider’s refusing to provide medical treatment without first receiving immediate payment from the eligible injured person. If the provider did not require immediate payment, it may then subsequently discover that its patient, which it treated without immediate payment, has demanded and received payment from the insurance carrier for the services which the provider rendered. This is doubly troublesome in that, if medical providers refuse to provide treatment in exchange for an “assignment,” then the eligible injured person must not only pay up front, he/she must also seek reimbursement from the insurance carrier and comply with all the complex rules and regulations of the No-Fault Law.

It is also small comfort to the insurance company to know that after making payment to either the provider pursuant to the authorization or to the eligible injured person pursuant to the majority decision herein, that when it is sued by the one or the other upon nonpayment, it would have a valid defense of payment. Despite this valid defense, the lawsuit would nevertheless necessitate the opening of a litigation file by the insurance carrier with the associated expense of an employee’s time and loss of productivity; the insurance carrier would have to hire an attorney [*7]to answer the complaint and subsequently move for summary judgment with the associated expenses of attorney’s fees and court costs; it must also restrict and separately maintain certain of its liquid assets as a reserve against the file and even if the reserve is set at zero, it would nevertheless have to justify that to the Insurance Department at an audit — an unnecessary and protracted circumstance.

Further, I submit this could only lead to additional litigation, not only additional costs and fees associated with such litigation, but also increased insurance carrier rates vis-a-vis the public and, certainly, needless use of additional court resources, all of which negate the intended and speedy purpose of the No-Fault Law.

It is for all these reasons that I agree with and support the Civil Court’s granting of defendant’s motion to dismiss and its awarding defendant attorney’s fees and costs in the amount of $6,904 as against this plaintiff.

I vote to affirm.

Decision Date: January 26, 2009