Appellate Division, Second Department
Nov 22, 2004
2004 NY Slip Op 08669
Insurer prevailed
An untimely denial does not preclude an exhaustion defense or establish entitlement to judgment on a previously denied duplicate claim. The Appellate Division, Second Department, reversed summary judgment for the hospital on both causes of action and denied its motion. On the first claim, the hospital established submission of the required documents and the insurer's failure to pay, deny, or request verification timely. The insurer nevertheless raised factual issues concerning partial exhaustion through other no-fault payments and compliance with 11 NYCRR 65.15 (n). On the second claim, the insurer showed that the disputed bill duplicated an earlier claim for the same services that had been properly denied. Failure to timely deny the duplicate did not warrant summary judgment.
Appellate Division, Second Department
Nov 22, 2004
2004 NY Slip Op 08661
Split result
The insurer's intoxication defense presented factual issues concerning both intoxication and its causal connection to the accident. The Appellate Division, Second Department, modified the order by denying the insurer's cross motion for summary judgment dismissing the complaint and reinstated the injured claimant's action for unpaid no-fault benefits. It affirmed the denial of the claimant's summary judgment motion. Factual issues remained as to intoxication under Insurance Law § 5103 (b) (2) and Vehicle and Traffic Law § 1192 (2), (3), and whether intoxication proximately caused the accident.
Appellate Division, Fourth Department
Nov 19, 2004
2004 NY Slip Op 08341
Insurer prevailed
The insurer's petition to permanently stay SUM arbitration was granted and affirmed on appeal. The Appellate Division, Fourth Department, relied solely on the reasons stated by Supreme Court, which found notice of the SUM claim untimely. One justice dissented, concluding that the injured claimant's recorded statement to the insurer one week after the accident provided sufficient notice of the uninsured motorist claim.
Appellate Division, Fourth Department
Nov 19, 2004
2004 NY Slip Op 08354
Insurer prevailed
The APIP arbitration award lacked a rational basis for excusing notice beyond the policy's 90-day deadline. The Appellate Division, Fourth Department, affirmed vacatur of the injured claimant's award and denial of confirmation under CPLR 7511 (b) (1). The policy excused late notice only upon written proof that circumstances beyond the claimant's control made timely notice impossible. The arbitrator accepted the claimant's lack of awareness of the injuries' seriousness, but the record showed treatment, worsening symptoms, and a specialist's MRI order within 90 days. The majority found no rational basis for impossibility, even assuming delayed awareness of severity; two justices dissented, finding record support and impermissible substitution of judicial factual judgment.
Appellate Division, First Department
Nov 9, 2004
2004 NY Slip Op 07960
Insurer prevailed
The provider's 68 assigned claims were properly severed because individual issues predominated and a joint trial risked confusion. The Appellate Division, First Department, affirmed the order granting the insurer's motion under CPLR 603. Each claim arose from a different accident and assignor. Defenses concerning assignment validity, medical necessity, receipt of bills, and sufficiency of claim forms depended on each claim's particular facts, even assuming identical policies. The common provider and insurer did not establish sufficient common issues to justify an unwieldy joint trial. Severance served convenience and avoidance of prejudice. The court distinguished Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., which upheld a discretionary refusal to sever under different circumstances.
Appellate Division, Second Department
Nov 8, 2004
2004 NY Slip Op 08087
Provider prevailed
MVAIC must comply with the 30-day deadline to pay or deny a no-fault claim before qualifying the injured claimant. The Appellate Division, Second Department, affirmed a judgment for the provider, which proved that prescribed billing forms were mailed and received and that payment was overdue under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). MVAIC neither timely denied the claim nor requested verification to extend its time. Under Insurance Law § 5221 (b) (3), MVAIC has the rights and obligations of a no-fault insurer, and the regulation expressly applies to it. MVAIC also waived defenses concerning the claim form's adequacy by failing to object within 10 days under 11 NYCRR 65.15 (d).
Appellate Division, Second Department
Nov 1, 2004
2004 NY Slip Op 07818
Insurer prevailed
The hospital failed to establish entitlement to summary judgment because its own papers raised questions about previously resolved billings. The Appellate Division, Second Department, affirmed denial of the hospital's motion for unpaid no-fault benefits. The hospital's submissions unequivocally showed payments for both insureds it had treated. Those papers did not eliminate factual issues as to whether the disputed claims had been billed and resolved previously, or whether the current submissions repeated claims outside the 30-day payment-or-denial rule of Insurance Law § 5106 (a). Because the hospital failed to meet its initial burden, the court did not examine the adequacy of the insurer's opposition.
Appellate Term, First Department
Nov 24, 2004
2004 NY Slip Op 51453(U)
Provider prevailed
The provider's uncontradicted billing affidavit established overdue claims and warranted summary judgment. The billing manager swore that the claim forms were mailed to the insurer on the dates they were signed. The provider showed that the insurer neither paid nor denied the claims within 30 days after receipt, as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The Appellate Term, First Department, reversed the denial of the unopposed motion and granted summary judgment under CPLR 3212 (b). It remanded for assessment of reasonable attorney fees and entry of judgment for the provider with appropriate interest and attorney fees.
Appellate Term, Second Department
Nov 19, 2004
2004 NY Slip Op 51432(U)
Insurer prevailed
The insurer's investigator raised a triable coverage issue based on a founded belief that the collision furthered an insurance fraud scheme. The providers established prima facie entitlement to summary judgment by proving submission of statutory claim forms stating the fact and amount of the loss under Insurance Law § 5106 (a). The insurer's failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3) precluded most defenses, but not its asserted lack of coverage. Its 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' motion.
Appellate Term, Second Department
Nov 19, 2004
2004 NY Slip Op 51429(U)
Insurer prevailed
The insurer's investigator raised a triable issue of coverage despite the untimely denial of the provider's claim. The provider established prima facie entitlement to summary judgment by proving submission of a statutory claim form stating the fact and amount of the loss under Insurance Law § 5106 (a). Failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3) precluded most defenses, but did not bar the defense that the collision furthered an insurance fraud scheme. The 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's motion.
Trial court, Second Department
Nov 29, 2004
2004 NY Slip Op 51475(U)
Provider prevailed
The insurer failed to justify disqualifying the provider's law firm under the advocate-witness rule. The insurer alleged that the firm handled the provider's billing and verification functions and would need to testify about claim records and nonpayment. The Civil Court, Kings County, found no showing under DR 5-102 that trial counsel would be a necessary witness or that the testimony would be adverse. Following Talvy v American Red Cross in Greater New York, the court explained that another attorney could serve as advocate if a firm attorney testified. It denied the insurer's motion and granted the provider's cross motion for sanctions because identical unsuccessful disqualification motions made the practice redundant, abusive, and frivolous.
Trial court, Second Department
Nov 22, 2004
2004 NY Slip Op 24468
Provider prevailed
The insurer's equivocal expert testimony failed to establish that the assignor's paraspinal ultrasound testing was medically unnecessary. The Civil Court, Richmond County, entered judgment for the provider after a nonjury trial. The insurer relied on radiology guidelines questioning the modality's clinical utility, but its expert acknowledged that the guidelines were not inflexible requirements or legal standards of care. Applying Fifth Ave. Pain Control Ctr. v Allstate Ins. Co., the court assessed necessity on a patient-by-patient basis and declined to deem the modality universally ineffective on this proof. The provider testified that testing would assist diagnosis and treatment planning. The court also rejected the standing defense: testimony about customary office procedures supplied circumstantial authentication of the assignment, and the insurer offered no evidence challenging the assignor's signature.
Trial court, Second Department
Nov 10, 2004
2004 NY Slip Op 24452
Provider prevailed
A law firm's mailroom clerk's necessary testimony about mailing no-fault claims does not by itself disqualify the firm. The Civil Court, Kings County, denied the insurer's motion to disqualify the provider's counsel under 22 NYCRR 1200.21, the advocate-witness rule. The firm mailed the provider's bills and maintained claim-processing records through an employee. The insurer identified no attorney whose testimony was necessary, and the employee's anticipated testimony would support the provider's position. The rule governs lawyers rather than nonlawyer employees. The court also explained that identifying an attorney who ought to testify would not alone warrant disqualifying the entire firm where other attorneys could serve as advocates without providing necessary testimony.
Trial court, Second Department
Nov 10, 2004
2004 NY Slip Op 51847(U)
Provider prevailed
The insurer failed to prove mailing of IME requests and was precluded from asserting untimely fee-schedule and medical-necessity defenses. The Civil Court, Kings County, granted the providers summary judgment with statutory interest and attorney fees. The providers established mailed and received claims and overdue payment under Insurance Law § 5106 (a). The insurer's file-review affidavit established neither personal knowledge of mailing nor an office mailing practice; it also failed to follow verification procedures under 11 NYCRR 65-3.5 (b). Its excessive-fee defense lacked evidentiary support and was untimely, as was its medical-necessity defense. Although an untimely denial did not preclude the injury-causation defense, the unsworn engineering report was inadmissible. The court declined to consider untimely amended opposition papers.
Trial court, Second Department
Nov 4, 2004
2004 NY Slip Op 24432
Insurer prevailed
An insurer need not wait 30 days after its initial verification request before sending a follow-up request. The Civil Court, Queens County, granted the insurer's summary judgment motion under CPLR 3212, finding the provider's action premature. The provider never answered the verification requests and challenged only the follow-up sent 25 days after the initial request. The court construed 11 NYCRR 65.15 (e) (2) as imposing a time limit for follow-up rather than a mandatory waiting period. The early follow-up caused no prejudice and served the no-fault system's goal of prompt claim handling. Under 11 NYCRR 65.15 (g) (1), the outstanding verification tolled the insurer's time to pay or deny, and the insurer had no duty to issue a denial.
