Appellate Division, Second Department
Oct 25, 2004
2004 NY Slip Op 07663
Provider prevailed
A timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the hospital summary judgment on both claims. The insurer's denial omitted basic information required by 11 NYCRR 65-3.4 (c) (11), including the provider's name, claim dates and amounts, and receipt dates. Later correspondence supplied most omissions, but arrived after the period prescribed by 11 NYCRR 65-3.8 (c). The court held that allowing supplementation after the deadline would frustrate prompt payment or denial. Preclusion was therefore appropriate despite the original denial's timeliness.
Appellate Division, Second Department
Oct 4, 2004
2004 NY Slip Op 07140
Insurer prevailed
An unanswered verification demand tolls the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (1) (i). The Appellate Division, Second Department, affirmed the order insofar as reviewed, sustaining default vacatur and summary judgment dismissing the third cause of action. Counsel's detailed explanation of oversights established law office failure; the defendant acted promptly without prejudice to the providers. A claims representative's affidavit based on ordinary business records established a meritorious defense without requiring personal knowledge of each document's history or content. Initial and follow-up verification requests went unanswered, permitting denial more than 180 days after claim notice. One provider's appeal was dismissed under CPLR 5511 for lack of aggrievement; another's was dismissed as academic after settlement.
Appellate Division, Fourth Department
Oct 1, 2004
2004 NY Slip Op 06877
Provider prevailed
The claimants' 19-month delay in giving SUM notice was reasonable because the injured claimant diligently investigated the medical facts. The Appellate Division, Fourth Department, reversed the permanent stay of arbitration and denied the insurer's application. Early medical reports indicated no serious injury under Insurance Law § 5102 (d), and the insurer's IME attributed only temporary strains to the accident. The insurer denied no-fault benefits on that basis. Later orthopedic reports identified possible MRI misreading and then disc herniation; the claimants gave SUM notice within six weeks of the second report. The court found notice timely under the policy's as-soon-as-practicable requirement and considered the insurer's contrary position inconsistent with its earlier no-fault denial.
Appellate Term, Second Department
Oct 27, 2004
2004 NY Slip Op 51293(U)
The petitioning insurer's reimbursement demand was timely because it was made within three years of its first no-fault payment. In mandatory arbitration under Insurance Law § 5105, the arbitrator dismissed the demand as time-barred, and the Civil Court denied vacatur for lack of proof of payment dates. The Appellate Term, Second Department, found that the claims representative's affidavit and supporting documents supplied documentary proof under CPLR 4518 (a). The demand satisfied CPLR 214 (2), making the limitations dismissal unsupported by the evidence and arbitrary and capricious. The court reversed, granted the petition, vacated the award, and remanded for arbitration. It also noted that CPLR 411 requires a special proceeding to terminate in a judgment.
Appellate Term, Second Department
Oct 21, 2004
2004 NY Slip Op 51242(U)
Insurer prevailed
The insurer's investigator affidavit and supporting EUOs raised a triable issue whether the collision was part of an insurance fraud scheme. In the provider's action for assigned no-fault benefits, the insurer opposed summary judgment with an affidavit supported by EUOs of the assignor and other persons involved in the accident. The Appellate Term, Second Department, found those submissions sufficient and affirmed the order denying the provider's motion.
Appellate Term, Second Department
Oct 20, 2004
2004 NY Slip Op 51250(U)
Insurer prevailed
The insurer's founded belief in a staged collision defeated summary judgment, although its EUO nonappearance defense was precluded. The provider established its prima facie case for medical equipment claims. The insurer conceded that it failed to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). It also failed to prove timely EUO requests under 11 NYCRR 65.15 (d) (1) or that the applicable regulations authorized EUOs. The staged-incident defense survived preclusion, and the insurer's submissions 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 provider's motion.
Appellate Term, Second Department
Oct 20, 2004
2004 NY Slip Op 51251(U)
Insurer prevailed
The insurer raised a triable insurance fraud coverage defense despite ineffective EUO requests and an untimely denial. The provider proved submission and receipt of a complete claim and nonpayment within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The applicable regulations did not require a claimant to attend an EUO, so the requests did not toll the denial period. Nevertheless, the insurer could assert that the collision furthered an insurance fraud scheme. Its investigator's affidavit demonstrated 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 provider summary judgment.
Appellate Term, Second Department
Oct 1, 2004
2004 NY Slip Op 51110(U)
Provider prevailed
The insurer failed to establish a meritorious defense sufficient to excuse its late answer and defeat a default judgment. Service on the Superintendent of Insurance under Insurance Law § 1212 established jurisdiction. Even assuming a reasonable excuse for delay, the insurer offered no admissible proof of a timely verification request or the provider's failure to respond. Its medical-necessity defense also lacked an affidavit from someone with personal knowledge, regardless of whether that defense was precluded. The Appellate Term, Second Department, reversed the order, granted the provider leave to enter a default judgment, and denied the insurer's cross motion to compel acceptance of its late answer.
Trial court, Second Department
Oct 27, 2004
2004 NY Slip Op 51280(U)
Provider prevailed
The insurer failed to defeat summary judgment with an unsigned EUO transcript or toll the denial period after another assignor's missed EUO. The provider sought payment of claims involving two assignors allegedly injured in the same accident. For one claim, the Civil Court, Kings County, found that the unsigned, unverified EUO transcript was inadmissible and could not raise a triable issue. For the other, the insurer timely requested an EUO but failed to seek a second date after the assignor did not appear. The court held that this failure to follow 11 NYCRR 65-3.5 (b) prevented tolling of the 30-day period. It granted the provider summary judgment with statutory interest and attorney fees.
Trial court, Second Department
Oct 25, 2004
2004 NY Slip Op 24410
Provider prevailed
The insurer's misaddressed EUO notices did not toll the denial period despite receipt by the driver's tort attorney. The Civil Court, Kings County, granted summary judgment for the provider on claims for both the driver and passenger. The provider received no EUO request, and the driver never received the notices. Applying 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b), the court required proper notice to the applicant; the attorney represented the driver in a separate damages action. The driver's claim denial was therefore untimely under 11 NYCRR 65-3.8 (a). The passenger's claim denial also failed: the insured's EUO statements lacked personal knowledge of the accident and did not contradict the passenger's account or raise a triable fraud issue.
Trial court, Second Department
Oct 19, 2004
2004 NY Slip Op 24394
Provider prevailed
A medical supplier need not prove documented cost as part of its prima facie no-fault case. The Civil Court, Kings County, granted the provider's summary judgment motion and awarded statutory interest and attorney's fees. The insurer's denial form established receipt and denial beyond 30 days under 11 NYCRR 65-3.8 (a) (1). Although 11 NYCRR Appendix 17-C, part E (b) (1) limited reimbursement to 150% of documented cost, cost documentation was a verification issue. Failure to request it timely precluded that defense. The medical-necessity defense was also precluded by the late denial and independently unsupported by a detailed factual basis and medical rationale under 11 NYCRR 65-3.8 (b) (4).
Trial court, Second Department
Oct 18, 2004
2004 NY Slip Op 51213(U)
Insurer prevailed
The injured claimant's bad-faith failure-to-settle claim failed because the brief settlement demand did not establish gross disregard of the insured. As the insured's assignee, the claimant alleged that the liability insurer wrongfully rejected a policy-limit demand open for ten days, made two days after the underlying action began. Applying Pavia v State Farm Mutual Automobile Insurance Co., the Supreme Court, Kings County, found that the insurer had no opportunity to conduct an IME or depose the claimant about the injuries. The jury's comparative-fault finding also undermined the assertion that all serious doubts about the insured's liability had been removed. The court granted the insurer summary judgment dismissing the complaint and denied the claimant's cross motion.
Trial court, Second Department
Oct 15, 2004
2004 NY Slip Op 24411
Provider prevailed
The SUM insurer failed to raise a factual issue warranting a stay based on the offending vehicle insurer's EUO disclaimer. The Supreme Court, Nassau County, denied its petition to stay the injured claimant's arbitration under CPLR 7503 (b). A police report initially showed coverage, but uncontroverted disclaimer evidence shifted the burden back to the petitioning insurer. Counsel's unsupported challenges to the efforts to obtain cooperation were insufficient. Under 11 NYCRR 60-2.3, the court also reasoned that optional SUM coverage permitted prompt arbitration without awaiting a determination of the disclaimer's validity, while preserving the SUM insurer's subrogation rights. Prearbitration discovery was denied because no extraordinary circumstances were shown; the petitioning insurer was also the no-fault carrier, and no-fault examinations had occurred.
Trial court, Second Department
Oct 4, 2004
2004 NY Slip Op 51132(U)
Insurer prevailed
Providers may not join unrelated claims for interest and attorney fees solely because the insurer allegedly responded to them alike. Multiple providers sought summary judgment on statutory interest and attorney fees for no-fault claims allegedly paid late. The District Court, Nassau County, denied the unopposed motion because the action bundled de minimis claims that did not arise from the same transaction, occurrence or series under CPLR 1002. The insurer's allegedly common response did not establish a permissible basis for joinder, and combining trivial claims did not overcome the court's public-policy concerns. The court granted leave to move to sever all plaintiffs except Lyang Acupuncture, P.C., and renew summary judgment for that provider.
