Appellate Division, Second Department
Jun 28, 2004
2004 NY Slip Op 05626
Provider prevailed
⚠ Not followed by Siegel v Progressive Cas. Ins. Co. (2004 NY Slip Op 24532)
The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion. The Appellate Division, Second Department, affirmed the judgment, upholding summary judgment on the second, third, and fourth causes of action. The hospitals proved mailing and receipt of facility forms establishing their losses and the insurer's failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The insurer's affidavits did not establish mailing of requests for verification of the assignments under 11 NYCRR 65.15 (d), leaving its assignment objections without merit. The hospitals were entitled to statutory interest and attorney fees; the separate appeal from the intermediate order was dismissed.
Appellate Division, Second Department
Jun 21, 2004
2004 NY Slip Op 05413
Insurer prevailed
The hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding. The Appellate Division, Second Department, affirmed the order, insofar as appealed from. On the first cause of action, the insurer established exhaustion of personal injury protection limits through prior claims, and the hospitals raised no factual issue. On the fifth, the hospital undisputedly failed to answer requests for medical records. Under 11 NYCRR 65.15 (g) (1) (i) and (2) (iii), the insurer's time to pay or deny had not begun, making the action premature. Verification requests made by letter rather than prescribed form remained effective. The hospitals' summary judgment requests were denied, and both causes of action were dismissed.
Appellate Division, Second Department
Jun 21, 2004
2004 NY Slip Op 05422
Insurer prevailed
The provider's claim failed because neither it nor its assignor gave accident notice within 90 days or established impossibility of compliance. The Appellate Division, Second Department, reversed the judgment for the provider, denied its summary judgment motion, and granted the defendant's cross motion dismissing that provider's complaint. Under 11 NYCRR 65.11 (m) (2), late notice required written proof that circumstances beyond the claimant's control made timely compliance impossible. Although the provider's form constituted sufficient notice under 11 NYCRR 65.15 (b) (4), it was untimely. The matter was remitted for entry of judgment for the defendant.
Appellate Division, Second Department
Jun 14, 2004
2004 NY Slip Op 05217
Provider prevailed
The insurer waived objections to missing signatures by failing to challenge the hospital forms' completeness within 10 days of receipt. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the providers summary judgment on the first and second causes of action. Missing signatures therefore did not justify denial of the motion. The providers established prima facie entitlement under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), and the insurer raised no triable factual issue. The matter was remitted to calculate the no-fault benefits, statutory interest, and attorney fees owed under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6.
Appellate Division, First Department
Jun 10, 2004
2004 NY Slip Op 04859
The respondent insurer failed to show a meritorious defense to confirmation of three loss-transfer arbitration awards. The Appellate Division, First Department, affirmed denial of its application to vacate its default in answering the petition. Refusal to adjourn for an unannounced investigator was not misconduct, and the proposed testimony duplicated reports already submitted. No insured affidavit rebutted DMV records showing the truck exceeded 6,500 pounds, supporting reimbursement under Insurance Law § 5105 (a). Although the awards lacked signatures and affirmations required by CPLR 7507, the insurer was estopped from raising that defect after omitting it from the proposed answer, depriving the petitioning insurer of an opportunity to obtain signed awards within the one-year confirmation period.
Appellate Division, Second Department
Jun 1, 2004
2004 NY Slip Op 04304
Provider prevailed
The hospital obtained summary judgment because the insurer failed to raise admissible factual issues on causation and policy cancellation. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the hospital's motion and denying the insurer's cross motion. Neither claim was paid or denied within 30 days under Insurance Law § 5106 (a), and the insurer raised no triable issue on either defense.
Appellate Term, Second Department
Jun 30, 2004
2004 NY Slip Op 50693(U)
Provider prevailed
The insurer's EUO defense was precluded by untimely denials, and its accident-fraud evidence was inadmissible. The insurer failed to establish an EUO endorsement under 11 NYCRR 65-1.1 (d). Even assuming one, it missed the 15-business-day request and 30-calendar-day scheduling limits under 11 NYCRR 65-3.5 (b) and (d); subsequent letters were not proper verification requests. Its denials therefore exceeded the 30-day period under 11 NYCRR 65-3.8 (c). A collision caused to further insurance fraud would fall outside coverage despite a late denial, but an attorney's affidavit without personal knowledge and an unsworn investigator's letter raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jun 30, 2004
2004 NY Slip Op 50695(U)
Provider prevailed
The insurer failed to establish an EUO policy endorsement or timely mailing of verification requests, so the 30-day claim period was not tolled. The provider established prima facie entitlement for medical supplies. The Appellate Term, Second Department, affirmed the judgment granting partial summary judgment to the provider. The insurer did not show an endorsement authorizing EUOs under 11 NYCRR 65-1.1 (d), following the companion appeal S&M Supply Inc. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2003-1087 N C. Even assuming an endorsement, no affidavit established actual mailing or procedures ensuring proper addressing and mailing. The court clarified that additional verification may be requested by letter without a prescribed form; the insurer failed to toll its deadline under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jun 30, 2004
2004 NY Slip Op 50692(U)
Insurer prevailed
The providers failed to establish entitlement to summary judgment because their billing manager did not identify the provider represented. Four providers relied on an affidavit describing its author as the practice and billing manager of "plaintiff." The affidavit did not state whether the author acted for a particular provider or for all four, and shared business addresses did not permit that assumption. It therefore failed to establish submission of properly completed claim forms. The Appellate Term, Second Department, affirmed denial of the providers' motion. The court also noted that an insurer may assert a staged-accident defense upon adequately establishing a founded belief that the injuries did not arise from an insured incident.
Appellate Term, First Department
Jun 17, 2004
2004 NY Slip Op 50690(U)
Provider prevailed
The insurer waived its defense based on deficiencies in the provider's initial application by failing to raise it in the denial. The provider established entitlement to summary judgment by proving submission of the required payment documents and the insurer's failure to pay, deny, or request verification within the applicable periods. The insurer did not raise a triable issue in opposition. Following Presbyterian Hosp. v Aetna Cas. & Sur. Co., the court rejected reliance on any claimed application deficiency omitted from the denial. The Appellate Term, First Department, affirmed the order granting the provider summary judgment on its no-fault claim.
Appellate Term, Second Department
Jun 7, 2004
2004 NY Slip Op 24221
Provider prevailed
EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification. The Appellate Term, Second Department, affirmed the orders in the provider's favor. The provider established its prima facie case, and the insurer conceded that it neither paid nor denied within 30 days. Under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), most defenses were precluded. Policy cooperation clauses could not supply the missing EUO requirement. Under 11 NYCRR 65.15 (e) (2), investigation-delay letters lacking specified verification and its source did not toll the deadline. A staged-accident defense could survive preclusion, but the insurer's unspecified fraud allegations rested on an attorney's hearsay rather than admissible proof from someone with personal knowledge of the investigation.
Appellate Term, Second Department
Jun 4, 2004
2004 NY Slip Op 50575(U)
Insurer prevailed
The insurer's investigator raised a triable issue of coverage as to whether the alleged injuries arose from an insured incident. The providers sought summary judgment for assigned no-fault benefits and challenged the insurer's opposition proof. The investigator's detailed affidavit supplied ample facts and founded beliefs supporting a coverage issue under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed the denial of the providers' motion and rejected their remaining contentions.
Appellate Term, Second Department
Jun 3, 2004
2004 NY Slip Op 50557(U)
Provider prevailed
An EUO request does not toll the payment or denial period under the former regulation that did not require an injured person to submit to an EUO. The provider established submission of a complete proof of claim and nonpayment or denial within 30 days under Insurance Law § 5106 (a) and former 11 NYCRR 65.15. The insurer's denial for the assignor's EUO nonappearance was therefore untimely. Although lack of coverage remained available, hearsay statements attributed to the policyholder, without an acceptable excuse for failing to submit admissible evidence, raised no triable issue. The Appellate Term, Second Department, modified the order to grant the provider summary judgment and remanded for calculation of statutory interest and assessment of attorney's fees.
Trial court, Second Department
Jun 30, 2004
2004 NY Slip Op 50723(U)
The provider's summary judgment motion failed for lack of admissible assignment proof, and the insurer's cross motion was premature. The provider sought no-fault transportation benefits. The Civil Court, Queens County, denied its motion for failure to establish complete proof of claim and procedural defects under CPLR 2214 and 2215. An unauthorized supplement supplied no admissible assignment, and the provider's purported cross motion to the insurer's cross motion was treated only as opposition and reply. The court denied the insurer's cross motion without prejudice because CPLR 3214 (b) stayed disclosure during the provider's motion. It revived the conditional preclusion stipulation, allowed 60 days after service of the order with notice of entry for discovery responses, and permitted renewal upon noncompliance.
Trial court, Second Department
Jun 23, 2004
2004 NY Slip Op 50642(U)
Provider prevailed
The insurer failed to prove timely mailing of its denials because its witness lacked personal knowledge of the central mailing procedure. At a nonjury trial on four assigned claims, the provider established a prima facie case. The denials were timely on their face, but the adjuster's training-based testimony did not establish personal knowledge of actual mailing or the Texas facility's procedures. Under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), generating denials within 30 days was insufficient without timely mailing. The Civil Court, Queens County, awarded the provider the amounts sought on three claims and partial judgment on the fourth, with statutory interest and attorney fees.
Trial court, Second Department
Jun 21, 2004
2004 NY Slip Op 50593(U)
Provider prevailed
The insurer's preclaim IME requests to the assignor did not support denial where no verification was requested from the provider. The assignor missed IMEs scheduled before the provider submitted its claim, and the insurer timely denied that claim on nonappearance grounds. The insurer never requested verification or additional verification directly from the provider. Applying 11 NYCRR 65-3.5 and 65-3.8 (a), the Civil Court, Kings County, found that the requests did not comply with the prescribed verification procedure. The insurer's defense had to stand on the reason stated in its denial, which was legally insufficient on these facts. The court granted the provider summary judgment, with statutory interest and attorney's fees.
Trial court, First Department
Jun 18, 2004
2004 NY Slip Op 50565(U)
Provider prevailed
The insurer's EUO evidence failed to raise a triable issue that the injuries did not arise from an insured incident. The Civil Court, New York County, granted the providers summary judgment for unpaid no-fault benefits. Executed assignments and completed claim forms received but not timely paid or denied established their prima facie case under Insurance Law § 5106 (a). Although a lack-of-coverage defense survived an untimely denial, minor testimonial discrepancies, minimal work loss, and treatment at the same clinic did not establish a founded belief of fraud. The insurer supplied neither competent causation evidence nor an investigator's report. Its denials referring only to EUO testimony also lacked the specificity required under Insurance Law § 3420 (d) and CPLR 3016 (b).
Trial court, Second Department
Jun 17, 2004
2004 NY Slip Op 24213
Insurer prevailed
The providers' failure to attend agreed depositions made conditional evidence-preclusion orders absolute and required dismissal. The Civil Court, Queens County, granted the insurer's CPLR 3126 motions in actions consolidated solely to decide those motions. So-ordered stipulations resolving earlier dismissal motions required knowledgeable witnesses by specified deadlines and precluded the providers from offering evidence at trial upon noncompliance. The providers neither appeared nor offered excuses or assurances of future compliance. The court enforced the parties' chosen procedural course and rejected belated challenges to the insurer's entitlement to depositions. Because the stipulations barred evidence rather than merely particular witnesses, the providers could not avoid preclusion by calling an insurer employee and could not establish their prima facie cases.
Trial court, Second Department
Jun 2, 2004
2004 NY Slip Op 24184
Insurer prevailed
⚠ Reversed by Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)
A billing provider's claim form is incomplete if it omits the relationship with a different treating provider. The Civil Court, Queens County, denied the moving provider's summary judgment motion for failure to establish a prima facie case. The provider submitted an HCFA/CMS 1500 form signed by the treating doctor but omitted the business relationship required by item 16 of the prescribed NF-3 form. Under 11 NYCRR 65.15 (d) (5), an alternative form must contain substantially the same information. Under 11 NYCRR 65.15 (j) (1), an assignee qualifies for direct payment as a service provider when treatment is furnished through an employee, but not an independent contractor. The omission therefore concerned the billing provider's entitlement to payment.
