Appellate Division, Fourth Department
Apr 30, 2004
2004 NY Slip Op 03399
Split result
An intoxication exclusion dispute belongs to the arbitrator when the policy broadly requires arbitration of any matter relating to the claim. The Appellate Division, Fourth Department, affirmed denial of the insurer's permanent-stay motion and the injured claimant's summary judgment cross motion, allowing arbitration to proceed. Under CPLR 7503 (b), judicial threshold review concerned a valid arbitration agreement, compliance with it, and limitations. The policy broadly covered the dispute, imposed no condition precedent to arbitration, and presented no limitations issue. Whether the claimant was intoxicated and excluded from no-fault benefits therefore concerned the merits for the arbitrator under CPLR 7501, rather than a judicial ground to stay arbitration.
Appellate Division, Second Department
Apr 5, 2004
2004 NY Slip Op 02587
Provider prevailed
A notice of intention to arbitrate containing the CPLR 7503 (c) warning triggers the same 20-day stay deadline as a demand. The injured claimant served a notice containing the statutory preclusion warning with an application for no-fault benefits. The insurer sought a stay only after a later arbitration demand, arguing that the earlier notice did not trigger the deadline. The Appellate Division, Second Department, reversed, granted the claimant's cross motion to dismiss, and denied the petition to permanently stay uninsured motorist arbitration. The insurer neither claimed that service was misleading nor submitted an affidavit supporting that conclusion. Service at its no-fault office did not impair its response, as it issued a disclaimer 10 days later.
Appellate Term, Second Department
Apr 27, 2004
2004 NY Slip Op 50373(U)
Insurer prevailed
The providers' billing affidavit failed to establish their prima facie case because it did not identify which of three providers it covered. The providers sought summary judgment for no-fault benefits for chiropractic services rendered to their assignor. The affiant claimed to be practice and billing manager and an officer of "plaintiff." Two providers shared an address, while the third had a different address. The court could not assume that the affiant acted for a particular provider or all three, so the affidavit did not establish submission of properly completed claim forms. The Appellate Term, Second Department, affirmed the denial of the providers' motion.
Appellate Term, Second Department
Apr 14, 2004
2004 NY Slip Op 50311(U)
Split result
A provider cannot invoke preclusion to avoid a defense raised by its own proof that billed equipment was not prescribed. The provider established complete claims and mailing; the insurer failed to rebut presumed receipt of the first claim. Its EUO request on the second did not toll the 30-day period under Insurance Law § 5106 (a), since former 11 NYCRR 65.12 did not authorize EUOs and policy cooperation provisions could not supply that requirement. But the provider's documents omitted a billed TENS belt from the prescription. The Appellate Term, Second Department, modified the order to grant partial summary judgment excluding that item and remanded for statutory interest, attorney's fees, and further proceedings on the remaining portion.
Appellate Term, Second Department
Apr 14, 2004
2004 NY Slip Op 50310(U)
Insurer prevailed
The assignor's IME nonappearance raised triable issues but did not establish the insurer's entitlement to dismissal of all claims. The provider established a prima facie case except for a TENS accessory kit absent from its medical reports and prescriptions. That omission defeated a properly completed claim for the kit, relieving the insurer of payment under former 11 NYCRR 65.15 (g). The Appellate Term, Second Department, modified the order to deny the provider summary judgment and grant the insurer partial summary judgment dismissing only the accessory-kit claim; the other claims remained unresolved. The insurer's separate late-submission defense under former 11 NYCRR 65.11 (m) (3) was deemed abandoned because neither side addressed it below and the insurer omitted it on appeal.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 24119
Split result
An insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost. The Appellate Term, Second Department, modified the order to grant partial summary judgment to the provider, remanding for interest, attorney's fees, and proceedings on the remaining TENS belts and accessory kits. Under 11 NYCRR 68.5 (b) and 11 NYCRR Appendix 17-C, part E (b) (1), the equipment fee schedule foreclosed the prevailing-rate defense. The timely denial's conclusory duplication defense was also insufficient. However, the provider's own motion papers showed that the belts and kits were not prescribed, raising a factual issue negating entitlement to those benefits. The provider was therefore estopped from invoking waiver and preclusion for that portion.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 50279(U)
Split result
A provider cannot invoke preclusion to defeat a defense concerning unprescribed equipment when its own motion papers raise that issue. The Appellate Term, Second Department, modified the order to grant partial summary judgment for the provider and remanded for statutory interest, attorney fees and proceedings on the remaining claim. The insurer supplied no medical examination or sufficiently detailed peer review supporting its timely medical-necessity denial. Its defense under the 150% equipment-cost limit in 11 NYCRR 68, Appendix 17-C, Part E (b) (1), first raised in opposition, was precluded. However, documents newly submitted with the provider's motion showed that two billed items were not prescribed. Those documents raised a factual issue concerning unrecoverable benefits and estopped the provider from invoking waiver or preclusion for those items.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 50262(U)
Split result
The provider failed to establish entitlement to summary judgment because its assignment named an assignee whose identity remained uncertain. The assignment named only "Damadian MRI," leaving a factual question whether the plaintiff provider was the assigned entity. Although sufficient to withstand dismissal for lack of standing, it did not establish the provider's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the judgment, denied the provider's cross motion and remanded, while sustaining denial of the insurer's motion. The insurer's EUO notices did not toll the statutory period because the applicable no-fault regulations did not authorize that verification. Its remaining contentions lacked merit for the reasons stated in the companion appeal decided the same day, No. 2003-862 Q C.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 50266(U)
Split result
The provider failed to establish entitlement to summary judgment because its assignment named an assignee whose identity remained uncertain. The assignment named only "Damadian MRI," leaving a factual question whether the plaintiff provider was the assigned entity. Although sufficient to withstand dismissal for lack of standing, it did not establish the provider's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the judgment, denied the provider's cross motion and remanded, while sustaining denial of the insurer's motion. The insurer's EUO notices did not toll the statutory period because the applicable no-fault regulations did not authorize that verification. Its remaining contentions lacked merit for the reasons stated in the companion appeal decided the same day, No. 2003-717 Q C.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 50280(U)
Split result
The provider obtained partial summary judgment on claims denied after 30 days, but disputed equipment costs barred judgment on timely denied claims. The Appellate Term, Second Department, modified the order denying the provider's motion and remanded for calculation of statutory interest and attorney fees under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) (1) and 65.17 (b) (6). The late denials precluded the insurer's proffered defenses under former 11 NYCRR 65.15 (g) (3). For the remaining claims, 11 NYCRR 68, Appendix 17-C, Part E (b) (1) limited reimbursement to 150% of documented equipment cost, and factual questions remained whether the provider actually paid the invoiced prices. The assignments were proper and conferred standing.
Appellate Term, Second Department
Apr 9, 2004
2004 NY Slip Op 50263(U)
Provider prevailed
The insurer failed to justify vacating its default because it established neither a reasonable excuse nor a meritorious defense. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion, leaving the provider's default judgment intact. The insurer's employee affidavit did not identify who sought an extension of time to answer, the manner of the inquiry or its date. Without supporting facts in evidentiary form, the affidavit did not establish a reasonable excuse. The insurer also relied on a timely denial based on a peer review, but that review was conclusory and lacked a medical rationale for rejecting the claim. Following Amaze Med. Supply Inc. v Eagle Ins. Co., that showing did not establish a meritorious defense.
Trial court, Second Department
Apr 12, 2004
2004 NY Slip Op 24115
Provider prevailed
The insurer's public website statements were usable as admissions supporting jurisdiction over the provider's no-fault action. The Civil Court, Queens County, denied the insurer's reargument motion challenging the prior denial of dismissal for lack of jurisdiction under New York City Civil Court Act § 404 or forum non conveniens. Because no new facts were offered, the court treated the mislabeled renewal motion as reargument. It upheld reliance on state insurance-department records and unchallenged statements on the insurer's and sibling rental company's websites. The insurer covered the rental company's vehicles throughout New York City, enabling rentals under Vehicle and Traffic Law § 370 (3). Out-of-state underwriting and an office outside the city did not defeat jurisdiction, and website information was not the prior ruling's sole basis.
Trial court, Second Department
Apr 8, 2004
2004 NY Slip Op 50234(U)
Provider prevailed
An insurer bears the burden of proving its medical-necessity defense by a fair preponderance of the credible evidence. The Civil Court, Kings County, granted the provider's request for a jury instruction expressly assigning that burden to the insurer. The validity of the claim and the timely denial had been established at trial, leaving medical necessity as the sole jury issue. Following Choicenet Chiropractic P.C. v Allstate Insurance Company in addressing benefits under 11 NYCRR 65-1.1 (d), the court required a verdict for the provider if the insurer failed to meet its burden. It rejected the insurer's prejudice objection, explaining that instructions assigning defendants the burden on particular defenses were common in the Pattern Jury Instructions.
Trial court, Second Department
Apr 5, 2004
2004 NY Slip Op 24101
Provider prevailed
The insurer failed to disprove medical necessity after its expert was excluded for lacking expertise in biofeedback for back pain. The Civil Court, Queens County, granted the provider a directed verdict in a jury trial under Insurance Law § 5102 (a) (1). The provider established its prima facie case under Insurance Law § 5106 (a) and presented a neurologist's testimony supporting biofeedback for the assignor's back injury and chronic pain. The insurer's psychologist admitted having no relevant treatment experience or expertise, so the testimony could not assist the jury. The insurer offered no other proof of unnecessary treatment. Its fraud, assignment, unperformed-treatment and billing-code objections were waived because they were omitted from the denial. Judgment included statutory interest and attorney fees.
Trial court, Second Department
Apr 2, 2004
2004 NY Slip Op 50298(U)
Provider prevailed
The insurer's unsworn low-impact report failed to establish a coverage defense or raise a triable issue concerning injury causation. The insurer asserted that the collision could not have caused the claimed injuries and therefore characterized the claim as fraudulent. The report, even if admissible, did not establish a deliberate collision or insurance fraud scheme. The claims adjuster's affidavit supplied neither personal knowledge of the study nor accident-reconstruction expertise. The Civil Court, Queens County, granted the provider summary judgment on all bills. Denials issued beyond 30 days were ineffective absent a valid coverage defense under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (g) (3); the timely denied bill likewise lacked admissible opposing evidence.
