February 22, 2011

M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2011 NY Slip Op 01333)

https://www.beynensonlaw.com/case-law/m-n-dental-diagnostics-p-c-v-government-empls-ins-co-2011-ny-slip-op01333/

Court: Appellate Division, First Department
Decided: February 22, 2011
Citation: 2011 NY Slip Op 01333 · 81 AD3d 541
Posture: Other
Outcome: Provider prevailed
Earlier history: Appeal from M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2009 NY Slip Op 29266) (Affirmed)
Later treatment: Distinguished in 1 and followed in 2 later decisions (see Cited by)
Issues: Priority, other coverage
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co., 81 AD3d 541 (1st Dept 2011)

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 first notified of a no-fault claim must pay benefits despite a priority dispute that belongs in interinsurer arbitration. The insurer denied the dental provider's claim on the ground that another insurer was responsible and characterized the dispute as one of coverage. Under Insurance Law § 5105 (b) and 11 NYCRR 65-3.12 (b), disputes among insurers over payment responsibility require arbitration, while the first insurer notified remains responsible for payment. Under 11 NYCRR 65-4.11 (a) (6), priority or source-of-payment controversies are not coverage questions. The Appellate Division, First Department, affirmed the Appellate Term's order affirming the Civil Court's determination that the primary-insurer issue must be arbitrated.

Reported in New York Official Reports at M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2011 NY Slip Op 01333)

M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co.

2011 NY Slip Op 01333 [81 AD3d 541]

February 22, 2011

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 30, 2011

M.N. Dental Diagnostics, P.C., as Assignee of Daniel Burgos, Respondent,
v
Government Employees Insurance Company, Appellant.

—[*1] Law Offices of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for appellant. Steven J. Neuwirth, Garden City, for respondent.

Order of the Appellate Term of the Supreme Court in the First Judicial Department, entered June 24, 2009, which affirmed an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about February 15, 2007, finding the issue of which insurer is the primary insurer must be submitted to arbitration, unanimously affirmed, with costs.

Insurance Law § 5105 (b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12 (b) provides that “[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part.”

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not “otherwise . . . liable” for the payment of first-party benefits. However, 11 NYCRR 65-4.11 (a) (6) provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” Thus, as “the first insurer to whom notice of claim [was] given” (11 NYCRR 65-3.12 [b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which “[c]learly . . . is an inter-company dispute subject to mandatory arbitration” (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). Concur—Saxe, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ. [Prior Case History: 24 Misc 3d 43.]

Legal questions

A question 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.

Workers' comp or other insurer primary

Open the full map

Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: Another insurer's possible priority is no defense: the first insurer notified pays, then arbitrates with the other insurer

Held the insurer's denial because another motor vehicle insurer was responsible raised a priority-of-payment dispute, not a coverage question, so as first insurer notified it had to pay and the dispute belonged in mandatory intercompany arbitration.

Referred to WC BoardWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 9 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2009 NY Slip Op 29266) AffirmedAn insurer's dispute over priority of no-fault payment must be arbitrated when more than one policy provides coverage.

Cited by

A label shows how the later decision treated this one.

Parisien v Farmers Ins. (2022 NY Slip Op 22309) DistinguishedAn insurer's good-faith lack-of-coverage defense falls outside mandatory arbitration of disputes over priority of no-fault payment.
Pomona Med. Diagnostic P.C. v Adirondack Ins. Co. (2012 NY Slip Op 51165(U)) FollowedAn insurer cannot deny a no-fault claim on the ground that another carrier is primarily liable.
Yumi Acupuncture, P.C. v 21st Century Ins. Co. (2026 NY Slip Op 50433(U)) FollowedAn insurer first receiving a no-fault claim cannot toll payment by requesting a declaration addressing only other insurance.

Similar decisions

SZ Med., P.C. v Lancer Ins. Co. (2005 NY Slip Op 25112)An insurer's priority-of-payment dispute with another insurer must be arbitrated and is no defense to a provider's no-fault action.
Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953)An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.
Mount Sinai Hosp. v Government Empls. Ins. Co. (2011 NY Slip Op 05679)The insurer raised a triable issue as to whether it issued a denial of claim form to the hospital.
Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal.
Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166)An insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.