Court of Appeals
Feb 19, 2004
2004 NY Slip Op 01057
An insurer's APIP subrogation action has a limitation period running from the accident date, not the first APIP payment. The Court of Appeals affirmed the order dismissing the insurer's action as time-barred under the three-year personal injury limitation in CPLR 214 (5). The insurer acquired only the injured claimant's rights and remained subject to the same defenses. The APIP endorsement prescribed by 11 NYCRR 65-1.3 declared an existing equitable subrogation right rather than creating a statutory liability governed by CPLR 214 (2). The insurer was entitled to the portion of the claimant's settlement allocable to extended economic loss but instead brought an untimely separate action against the tortfeasor.
Appellate Division, Second Department
Feb 23, 2004
2004 NY Slip Op 01159
Provider prevailed
The defendant was precluded from disclaiming coverage because it failed to reject the provider's claim within 30 days. In an action seeking two separate no-fault medical payments, the appeal concerned only the second cause of action. The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted the providers' summary judgment motion on that cause of action, and denied the defendant's cross motion. The denial was untimely under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c).
Appellate Term, Second Department
Feb 26, 2004
2004 NY Slip Op 50389(U)
Insurer prevailed
The provider's own submissions raised factual issues about whether the billed equipment was prescribed or received by its assignor. Proper proof of claim generally establishes a prima facie case through a completed statutory form or its functional equivalent under 11 NYCRR 65-3.3 (d) and 65-3.5 (a), (f). But documents first submitted on the provider's summary judgment motion included a prescription that did not match the billed equipment and a delivery receipt for a different insured. Those discrepancies raised triable issues concerning certain benefits sought. The Appellate Term, Second Department, affirmed the order denying the provider's motion.
Appellate Term, Second Department
Feb 26, 2004
2004 NY Slip Op 50502(U)
Provider prevailed
The insurer failed to prove timely mailing of verification requests that would toll its 30-day period to pay or deny the claim. The provider established submission of a completed claim, which the insurer acknowledged receiving and denied more than 30 days later. The claim examiner's affidavit neither asserted personal knowledge of mailing nor described standard office procedures ensuring proper mailing, and the provider did not admit receipt of the requests. The insurer therefore raised no triable issue concerning tolling under Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney's fees.
Appellate Term, Second Department
Feb 18, 2004
2004 NY Slip Op 50401(U)
Provider prevailed
An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause. The provider established its prima facie entitlement to no-fault benefits by submitting statutory forms stating the fact and amount of loss under Insurance Law § 5106 (a). The insurer relied solely on the assignor's EUO nonappearance. The applicable regulations contained no EUO requirement, and a policy cooperation provision could not remedy that omission. With no other proper defense, the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for entry of judgment, calculation of statutory interest, and assessment of attorney's fees.
Appellate Term, First Department
Feb 11, 2004
2004 NY Slip Op 50061(U)
Split result
The provider obtained summary judgment on a neurological-testing claim denied after 30 days, but peer reviews raised issues on the remaining claims. The Appellate Term, First Department, modified the order to grant judgment on that claim and remitted for assessment of interest and attorney fees, while affirming denial of summary judgment on the others. Under 11 NYCRR 65-3.8 (c), the late denial waived defenses concerning inadequate claim forms, including missing signatures, and medical necessity. For the remaining claims, the insurer's timely denials relied on peer review reports. Those reports were a proper means of asserting lack of medical necessity under 11 NYCRR 65-3.8 (b) (4) and supplied sufficient facts to raise a triable issue.
Appellate Term, Second Department
Feb 10, 2004
2004 NY Slip Op 50388(U)
Split result
The insurer's unsworn nurses' reviews failed to raise a triable issue of medical necessity because the reviewers' qualifications were not shown. The Appellate Term, Second Department, modified the order to grant the providers partial summary judgment, remanding for statutory interest, attorney's fees, and further proceedings on the remaining claim. The reviews neither established training or experience qualifying the nurses as experts nor supplied sworn evidence. The insurer also failed to substantiate its fee-schedule defense under Insurance Law § 5108 (a), (c). Summary judgment remained denied on the claim subject to unrebutted timely verification requests under former 11 NYCRR 65.15 (d) (1), (2): without proof of compliance, the providers failed to establish a proper claim, and the insurer had no obligation to act.
Appellate Term, Second Department
Feb 10, 2004
2004 NY Slip Op 50387(U)
Split result
The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue. Untimely denials under former 11 NYCRR 65.15 (g) (3) precluded claim-form and medical-necessity defenses. Policy cooperation provisions could not supply the missing regulatory EUO requirement. The surviving fraud defense lacked admissible, particularized facts under CPLR 3016 (b). The Appellate Term, Second Department, modified the order to grant partial summary judgment for claims supported by completed forms and proof of submission. Relief remained denied for one physical therapy claim lacking proof of completed forms and seven other claims lacking proof of mailing or receipt. The matter was remanded for statutory interest, attorney's fees, and further proceedings on those remaining claims.
Trial court, Second Department
Feb 11, 2004
2004 NY Slip Op 24034
Provider prevailed
An insurer asserting lack of medical necessity must show that the billed services were inconsistent with generally accepted professional practice. The Civil Court, Kings County, awarded judgment to the provider after a trial concerning psychological evaluation, testing and treatment. Proper claim submission and timely denial were stipulated. The qualified experts offered conflicting views about the need for psychological care and the diagnostic use of testing instruments, but virtually no evidence addressed generally accepted practice. An insurer's expert opinion alone could not carry its burden. The court found the proof insufficient to establish lack of medical necessity under the no-fault scheme of Insurance Law § 5101 and awarded statutory interest and attorney fees.
Trial court, Second Department
Feb 11, 2004
2004 NY Slip Op 24041
Split result
Psychological testing is medically necessary when accepted practice requires it or a reasonable patient-specific judgment supports its diagnostic use. After trial, the Civil Court, Kings County, credited the insurer's experts that intake interviews adequately supported diagnoses and treatment plans for three assignors. The provider's expert did not establish that testing was required for every patient or supplied information affecting these patients' care. Applying Insurance Law § 5102 (a) (1), the court rejected the testing and interpretation claims and two record-evaluation claims. The insurer offered no testimony challenging the third assignor's record evaluation, so the provider recovered on that claim with statutory interest and attorney fees under 11 NYCRR 65.15 (h) and (i) and 65.17 (b) (6) (iii) and (v).
