Appellate Division, Second Department
Sep 20, 2004
2004 NY Slip Op 06632
Insurer prevailed
The provider's claim against the self-insurer failed because the first accident notice was a bill submitted beyond the 90-day deadline. The Appellate Division, Second Department, reversed the ruling on the second cause of action, denied the provider's summary judgment motion on that claim, and granted the self-insurer's cross motion dismissing it. Under 11 NYCRR 65.11 (m) (1), compliance with all subparts of subdivision (m) was a condition precedent to suit. The provider did not dispute that its bill was the self-insurer's first notice of the accident. The 90-day accident-notice requirement in 11 NYCRR 65.11 (m) (2), rather than subdivision (m) (3) alone, therefore barred recovery.
Appellate Division, Second Department
Sep 13, 2004
2004 NY Slip Op 06513
Insurer prevailed
The insurer raised factual issues over when the providers mailed their claims and whether earlier denials properly disposed of them. The Appellate Division, Second Department, affirmed denial of the providers' summary judgment motion. The providers established prima facie entitlement by showing that the insurer had not responded to their claims within the 30 days required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). In opposition, the insurer supplied documentary evidence and an employee affidavit asserting that the same claims had been billed more than a year earlier and timely denied then. That admissible evidence required resolution of the mailing dates and validity of the earlier denials.
Appellate Term, Second Department
Sep 29, 2004
2004 NY Slip Op 51104(U)
Insurer prevailed
The insurer's investigator raised a triable fraud-related coverage issue despite EUO requests that did not toll the denial period. The providers established prima facie entitlement to payment by proving mailing of statutory claim forms and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The applicable regulations did not require claimants to submit to EUOs. Although most defenses were precluded, the defense that the collision furthered an insurance fraud scheme survived. The investigator's affidavit supported a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers' cross motion.
Appellate Term, Second Department
Sep 20, 2004
2004 NY Slip Op 24343
Insurer prevailed
The insurer's mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the denial of the medical-supply provider's motion. The billing manager's affidavit described duties sufficient to establish the exhibits' admissibility under CPLR 4518 (a), and those records showed that supplies were furnished; personal knowledge of delivery was unnecessary. The provider established its prima facie case and submitted an envelope allegedly containing the denial, postmarked after the payment-or-denial deadline. The insurer's claims adjuster described routine office mailing procedures indicating that the denial was mailed on the deadline, creating a factual dispute over timeliness.
Appellate Term, Second Department
Sep 20, 2004
2004 NY Slip Op 51038(U)
Provider prevailed
The insurer's attorney affidavit lacked personal knowledge and offered only conclusory fraud allegations, failing to raise a coverage issue. The provider established mailing and receipt of statutory claim forms and the insurer's failure to pay or deny within 30 days under Insurance Law § 5106 (a). Although a defense that injuries did not arise from a covered accident survived an untimely denial, the attorney's affidavit did not support a fact or founded belief that the injuries arose outside an insured incident. The Appellate Term, Second Department, reversed the denial of the provider's motion, granted summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, Second Department
Sep 17, 2004
2004 NY Slip Op 24342
Insurer prevailed
The insurer's investigator established a founded belief of a staged collision, raising a coverage issue despite an untimely denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The provider submitted complete proof of claim and the loss amount, establishing prima facie entitlement to payment. The insurer failed to deny within the 30-day period under 11 NYCRR 65.15 (g) (3). Its EUO requests did not toll that period because the regulation effective when the claim was submitted did not require attendance. Nevertheless, the staged-event coverage defense survived preclusion, and the investigator's affidavit supplied sufficient facts to raise a triable issue whether the injuries arose from an insured incident.
Appellate Term, Second Department
Sep 17, 2004
2004 NY Slip Op 51032(U)
Insurer prevailed
The insurer's investigator raised a triable staged-collision coverage issue despite the provider's adequate billing proof. The billing manager's duties supplied a business-record foundation under CPLR 4518 (a) without personal knowledge of treatment. The provider established its prima facie case, and EUO requests unauthorized by the applicable regulations did not toll the 30-day period under 11 NYCRR 65.15 (g) (3). Nevertheless, the investigator's affidavit supported a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed denial of the provider's motion, citing companion appeals decided the same day, No. 2003-1289 N C and A.B. Medical Services PLLC v State Farm Mutual Automobile Insurance Company, No. 2003-799 N C.
Appellate Term, Second Department
Sep 17, 2004
2004 NY Slip Op 51031(U)
Split result
The providers' ambiguous billing affidavit failed to establish a prima facie case, but the insurer also failed to obtain dismissal. The affiant did not identify which of three providers employed the affiant; one provider also lacked an assignment form in the record. The applicable regulations, 11 NYCRR 65.15 (d) (3) and 65.2 (a), did not authorize EUOs; liability-policy terms could not qualify the mandatory no-fault endorsement. Following the companion appeal decided the same day, Ocean Diagnostic Imaging P.C. v State Farm Mutual Automobile Insurance Company, No. 2003-1289 N C, the staged-collision allegations required trial but did not establish the insurer's entitlement to judgment. The Appellate Term, Second Department, modified by denying the providers' motion and otherwise affirmed, leaving the insurer's cross motion denied.
Trial court, Second Department
Sep 29, 2004
2004 NY Slip Op 51373(U)
Split result
An untimely denial precludes fraudulent billing defenses but permits a defense that the claimed injuries did not arise from an insured incident. The provider moved to strike fraud and misrepresentation defenses for insufficient specificity under CPLR 3016 (b). The Civil Court, Kings County, found the allegations sufficiently detailed, particularly because the underlying facts were likely within the provider's exclusive knowledge. Nevertheless, the insurer's admitted failure to pay or deny within 30 days under Insurance Law § 5106 (a) barred defenses alleging inflated costs and supplies never provided. The court struck those defenses but retained the defense that the supplies were unrelated to the accident, following Central General Hospital v Chubb Group of Insurance Companies on lack of coverage.
Trial court, Second Department
Sep 29, 2004
2004 NY Slip Op 51084(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not prove claim submission or overdue payment. The District Court, Nassau County, denied summary judgment under CPLR 3212 (b). Counsel's affirmation and an unverified complaint lacked probative value, and the officer could not supply personal knowledge by incorporating counsel's allegations. Mailing proofs did not establish what was sent, while the affidavit failed to establish submission dates, nonpayment within 30 days, or the absence of proper verification requests. It also failed to identify pertinent exhibits. The court noted differing versions of the treatment verification and held that deficiencies in the moving papers could not be cured on reply.
Trial court, Second Department
Sep 27, 2004
2004 NY Slip Op 51077(U)
Provider prevailed
An insurer's failure to deny a claim within 30 days precludes challenging the provider's proof of medical necessity. The arbitrator found the MRI claim untimely denied but rejected it because the provider had not established medical necessity; the master arbitrator affirmed. On the provider's CPLR 7511 application, the Civil Court, Kings County, followed Park Radiology, P.C. v Allstate Insurance Company and found the awards lacked a rational basis because they contradicted judicial precedent. Submission of the claim and proof of the insurer's failure to deny within 30 days satisfied the provider's burden. The court vacated the master arbitrator's decision and awarded the provider benefits with statutory interest and fees under Insurance Law § 5106 (a).
Trial court, Second Department
Sep 24, 2004
2004 NY Slip Op 51148(U)
Provider prevailed
The provider's invoices and cancelled checks established the documented cost of the equipment supplied to its assignors. The insurer had timely paid only part of the equipment claims and challenged the documentation supporting the unpaid balances. Under 11 NYCRR Appendix 17-C, Part E (b) (1), reimbursement was limited to 150 percent of cost. The Civil Court, Kings County, required proof of the provider's cost and payment for the specific equipment supplied. Claims, assignments acknowledging receipt, referrals, supplier invoices, and corresponding cancelled checks satisfied that requirement. The court rejected demands for further identifying information beyond what the provider submitted and granted summary judgment for the disputed balances, with statutory interest and attorney's fees.
Trial court, Second Department
Sep 24, 2004
2004 NY Slip Op 24356
Insurer prevailed
The EUO regulation applies to claims filed after its effective date under policies issued and effective after September 1, 2001. The Civil Court, Kings County, denied the provider's motion for summary judgment based on the insurer's failure to pay or deny within 30 days. Although the accident preceded the regulation's effective date, the claim followed it, and the policy was subject to 11 NYCRR 65-1.1 (b) (1) and (2). The assignor failed to attend two requested EUOs. The court distinguished decisions involving claims filed before the regulation took effect. It also rejected the insurer's staged-accident defense, although moot, because the insurer offered fraud allegations concerning other participants but no evidence of fraud concerning the assignor.
Trial court, Second Department
Sep 23, 2004
2004 NY Slip Op 24351
Provider prevailed
A provider may recover for services rendered while registered and licensed even if it becomes unregistered before seeking payment. The Civil Court, Kings County, granted the provider's motion for summary judgment and denied the insurer's cross motion. The remaining disputed issue was whether the provider's current lack of registration barred reimbursement for services performed while registered. Interpreting 11 NYCRR 65-3.16 (a) (12), the court focused on licensing requirements necessary to perform the services. It analogized to compensation for attorneys' work performed before disbarment or suspension and found no legislative intent or public policy barring reimbursement for services lawfully rendered before the provider became unregistered.
Trial court, Second Department
Sep 23, 2004
2004 NY Slip Op 51066(U)
Provider prevailed
The insurer's blanket IME cutoff did not excuse timely denials of later provider claims, leaving no meritorious defense to vacate default. The Civil Court, Kings County, accepted the insurer's difficulty obtaining an index number as a reasonable excuse, given its apparent intent to answer and prompt vacatur motion. Although IME reports supported lack of medical necessity, 11 NYCRR 65.15 (g) (2) (ii) did not permit reliance on an earlier denial to the assignor without responding to subsequent claims. The later denial forms were sent to the assignor rather than the providers, omitted receipt dates, and did not state lack of medical necessity. Finding that defense precluded, the court denied vacatur and left the providers' default judgment intact.
Trial court, Second Department
Sep 20, 2004
2004 NY Slip Op 24363
The three-year limitations period for statutory no-fault loss transfer runs from payment of benefits. The Civil Court, Queens County, granted the petitioning insurer's request to vacate a compulsory arbitration award, remanded for a hearing before another arbitrator, and denied the opposing insurer's cross motion to confirm. Insurance Law § 5105, 11 NYCRR 65.10 and CPLR 214 (2) governed the statutory claim. Measuring accrual from the accident was arbitrary and capricious and contradicted the law of the case established on an earlier appeal. Allstate Ins. Co. v Stein concerned equitable subrogation and did not control. Vacatur would become moot if the arbitration administrator vacated the award before judgment. The court reserved sanctions against the administrator and opposing insurer, including its authority to impose them, for a hearing.
Trial court, Second Department
Sep 14, 2004
2004 NY Slip Op 24346
Provider prevailed
A denial's timeliness is measured by its mailing date, not the date printed on the denial form. The Civil Court, Kings County, granted the providers' motion for partial summary judgment on four claims belonging to one provider. Three denials were dated 35 or 41 days after receipt; the fourth was dated on day 30 but postmarked on day 35. Under 11 NYCRR 65-3.8 (c), the insurer was precluded from asserting lack of medical necessity. Although 11 NYCRR 65-3.11 (b) (2) requires a properly executed assignment, signature authentication was unnecessary to establish the provider's prima facie case. The court treated the missing assignment date similarly and held that failure to request verification waived objections to the assignment and claim forms.
Trial court, Second Department
Sep 13, 2004
2004 NY Slip Op 50998(U)
Insurer prevailed
The petitioning insurer obtained a permanent stay of UM arbitration because the collision was intentionally staged and fell outside accident coverage. After a framed-issue bench trial, the Supreme Court, Nassau County, found compelling circumstantial evidence of staging, including two similar rear-end collisions within two weeks shortly after policy issuance. The offending vehicle's insurer therefore lacked coverage and was not required to issue a disclaimer under Insurance Law § 3420 (d). The petitioning insurer's UM endorsement likewise covered only injuries caused by an accident and excluded intentional collisions, whether motivated by malice or fraud. The court granted the permanent stay under CPLR 7502, while expressing concern that the injured claimants appeared to lack recourse.
