March 31, 2009

Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-lincoln-gen-ins-co-2009-ny-slip-op-02589/

Court: Appellate Division, Second Department
Decided: March 31, 2009
Citation: 2009 NY Slip Op 02589 · 60 AD3d 1045
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 71 later decisions (see Cited by)
Issues: Timeliness and preclusion EUO no-show Verification requests
Legal questions: No-show: coverage defense or precludable? · Outstanding verification and premature actions · Workers' comp or other insurer primary · Claimant's prima facie case on motions (see the maps)

Cite as

Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept 2009)

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.

The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim. The Appellate Division, Second Department, reversed the order and granted the provider's summary judgment motion. The provider proved mailing and receipt of its billing forms and failure to pay or deny within 30 days under Insurance Law § 5106 (a). The investigation letters did not toll that period under 11 NYCRR 65-3.5 (a), and the completed hospital facility form substituted for a no-fault application under 11 NYCRR 65-3.5 (g). The investigator's hearsay did not raise a factual issue concerning workers' compensation coverage; a possible offset was not a lack-of-coverage defense. The alleged EUO nonappearance neither defeated recovery nor tolled the period, and that defense was precluded.

Reported in New York Official Reports at Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)

Westchester Med. Ctr. v Lincoln Gen. Ins. Co.

2009 NY Slip Op 02589 [60 AD3d 1045]

March 31, 2009

Appellate Division, Second Department

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

As corrected through Wednesday, May 6, 2009

Westchester Medical Center, as Assignee of Bartolo Reyes, Appellant,
v
Lincoln General Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y. (Mark Green of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated October 14, 2008, which denied its motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault medical payments by submitting evidence that the prescribed statutory billing forms had been mailed and received, and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). In opposition, the defendant failed to raise a triable issue of fact.

Contrary to the defendant’s contention, the two letters it sent to the plaintiff on March 31, 2008, and April 30, 2008, respectively, advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant’s involvement [*2]in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts, did not serve to toll the 30-day statutory period (see 11 NYCRR 65-3.5 [a]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; see also Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing, Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [2004]). We also reject the defendant’s contention that the 30-day statutory period was tolled pending the defendant’s submission of a no-fault application, as 11 NYCRR 65-3.5 (g) specifically requires an insurer to accept a completed hospital facility form (NYS Form N-F 5), as was submitted here, “[i]n lieu of a prescribed application for motor vehicle no-fault benefits” (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d at 536).

The defendant also failed to raise a triable issue of fact, solely based on the hearsay statement of its investigator, as to whether the accident was covered by Workers’ Compensation benefits. Moreover, the defendant’s possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a Workers’ Compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be timely service of the disclaimer (see 11 NYCRR 65-3.5 [a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; cf. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997] [question of fact as to whether injuries were sustained in a separate, work-related accident]). Where, as here, the defendant’s denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff’s assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider’s right to recover no fault benefits or to toll the 30-day statutory period (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]). Rather, such denial was subject to the preclusion remedy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Zappone v Home Ins. Co., 55 NY2d 131, 136-137 [1982]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279-280 [1997]). Skelos, J.P., Fisher, Santucci and Balkin, JJ., concur.

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the denial based on the assignor's EUO no-show was a breach of a policy condition, not lack of coverage, and was precluded because investigation letters did not toll the 30 days.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Defense rejected because the insurer's requests or proof were deficient

Held the 30-day period was not tolled because the insurer's letters merely announced that the claim was held pending investigation, and an NF-5 hospital form had to be accepted in lieu of a no-fault application.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category.

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: The insurer may not rely on workers' compensation because it did not raise it in time

Held the insurer's possible entitlement to offset workers' compensation recovery was not a lack-of-coverage defense, so it was subject to the 30-day denial rule, and an investigator's hearsay raised no triable issue of workers' compensation coverage.

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

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Claimant's prima facie case on motions

Open the full map

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 hospital made its prima facie showing by evidence that the billing forms were mailed and received and the insurer failed to pay or deny within 30 days.

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.

Cited in this decision

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

Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067) FollowedAn insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
New York & Presbyt. Hosp. v AIU Ins. Co. (2005 NY Slip Op 06014)A resubmitted no-fault claim previously and timely denied is not subject to a new 30-day payment-or-denial period.
New York & Presbyt. Hosp. v Progressive Cas. Ins. Co. (2004 NY Slip Op 01750)The insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both.
Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) FollowedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
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.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946) FollowedAn insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.

Cited by (92)

A label shows how the later decision treated this one.

Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. (2010 NY Slip Op 52297(U)) Contrasted (cf., but see)The Workers' Compensation Board must first resolve the factual question whether the assignor's loss falls under the Workers' Compensation Law. The insurer alleged that the loss occurred during employment, and its submissions raised a factual issue concerning workers' compensation coverage.
Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340) FollowedAn untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
Chapa Prods. Corp. v MVAIC (2019 NY Slip Op 29341) FollowedAn insurer must deny a claim for failure to provide verification within 30 days after the 120-day response period expires.
Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U)) FollowedThe insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.
Arco Med. N.Y., P.C. v Lancer Ins. Co. (2012 NY Slip Op 22278) FollowedAn insurer may schedule an EUO outside the applicant's county if the place and time are reasonably convenient.
Morris Med., P.C. v Amex Assur. Co. (2012 NY Slip Op 52260(U)) FollowedThe insurer's EUO defense failed on five untimely denied claims but supported dismissal of six claims that were timely denied.
Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2012 NY Slip Op 51294(U)) FollowedOne provider's arbitration does not bar another provider's action on claims assigned by the same person and arising from the same accident.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U)) FollowedThe insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others.
FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U)) FollowedAn insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.

Show all 92 citing decisions

Similar decisions

Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747)The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny.
Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 01319)The insurer raised a factual issue as to whether it mailed a proper denial 22 days after receiving requested verification.
Westchester Med. Ctr. v Allstate Ins. Co. (2014 NY Slip Op 00655)The provider obtained summary judgment because neither the insurer's asserted verification request nor its denial was sent within 30 days.
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.
New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376)The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.