Appellate Division, Second Department
Jan 10, 2005
2005 NY Slip Op 00144
Insurer prevailed
The claimant's no-fault application and attorney correspondence did not provide the required notice of a UM claim. A claimant must notify the insurer within the policy's time limit or within a reasonable time under all the circumstances as a condition precedent to liability. Failure to comply without a valid excuse vitiates coverage. The claimant offered no valid excuse for failing to give timely UM notice. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, adhering on reargument to the permanent stay of arbitration in the insurers' CPLR article 75 proceeding. It dismissed the appeal from the original order because the reargument order superseded it.
Appellate Division, Third Department
Jan 6, 2005
2005 NY Slip Op 00063
Insurer prevailed
The claimant's projected State Police earnings were too speculative to support a no-fault lost-wage claim. The claimant was unemployed when injured and later passed the entry examination, deferred the physical examination because of the knee injury, and eventually entered the academy. Under Insurance Law § 5102 (a) (2) and 11 NYCRR 65-3.16 (b) (3), lost earnings require a degree of certainty; reasonably projected increases concern earnings from employment engaged in at the time of the accident. Entry into the academy and its deferral could not reasonably have been contemplated at that time. The Appellate Division, Third Department, affirmed summary judgment dismissing the claim for the insurer.
Appellate Term, Second Department
Jan 27, 2005
2005 NY Slip Op 50084(U)
Provider prevailed
The insurer's unsworn peer review report failed to raise a triable issue against the provider's prima facie showing. The provider proved submission of claims stating the fact and amount of loss and overdue payment under Insurance Law § 5106 (a). The peer review report was inadmissible. The Appellate Term, Second Department, also explained that lack of authentication of an assignor's signature alone was not a defect absent a statutory or regulatory requirement. Even assuming a cognizable defect, the insurer waived it by neither requesting verification nor identifying it in its denials. The court reversed, granted the provider summary judgment, denied the insurer's cross motion to preclude, and remanded for interest and attorney's fees.
Appellate Term, Second Department
Jan 27, 2005
2005 NY Slip Op 50076(U)
Insurer prevailed
The insurer's affidavit and EUO evidence raised a triable coverage issue despite untimely denials of certain claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to remove leave for two acupuncture providers to renew their summary judgment motion, and otherwise affirmed denial of the providers' motions. The litigation coordinator's affidavit and accompanying EUOs supported a founded belief that the injuries did not arise from an insured incident. A timely denial alone did not dispense with admissible opposition proof. Lack of authentication of assignment signatures was not itself a defect, and the insurer waived assignment defenses by neither seeking verification nor identifying deficiencies in its denials. The coverage issue nevertheless defeated summary judgment and made renewal unwarranted.
Appellate Term, Second Department
Jan 27, 2005
2005 NY Slip Op 50081(U)
Split result
The insurer's claims-specialist affidavit raised a triable coverage issue based on a founded belief that the collision involved fraud. The provider proved submission and receipt of its claims and overdue payment under Insurance Law § 5106 (a). EUO requests did not toll the 30-day period because the applicable regulations did not require claimants to submit to EUOs. Nevertheless, the fraudulent-collision defense survived the untimely denials. The affidavit supported a founded belief that the injuries did not arise from an insured incident, defeating the provider's motion without establishing the insurer's entitlement to judgment. The Appellate Term, Second Department, modified the order to deny the provider summary judgment and otherwise affirmed, leaving the insurer's cross motion denied.
Appellate Term, Second Department
Jan 20, 2005
2005 NY Slip Op 25032
Insurer prevailed
An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims. The providers established their prima facie entitlement under Insurance Law § 5106 (a), but the insurer's litigation coordinator's affidavit and accompanying EUOs raised a triable issue through 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' summary judgment motion. Although the lower court relied on unauthenticated assignment signatures, authentication was not required, and the insurer waived assignment objections by neither seeking verification nor identifying deficiencies in its denials.
Trial court, First Department
Jan 25, 2005
2005 NY Slip Op 50275(U)
Provider prevailed
A no-fault claim against MVAIC accrues when payment becomes overdue absent verification tolling, or upon a timely denial. MVAIC sought summary judgment based on a three-year limitations period running from the accident, while the provider asserted accrual upon denial. The Civil Court, Bronx County, rejected both positions on this record. Under CPLR 203 (a), Insurance Law § 5106 (a), and 11 NYCRR 65-3.8 (c), the claims accrued after 30 days elapsed following receipt of the bills without payment or denial. No documentation supported verification tolling, and the later denial did not control accrual. Because the provider commenced suit within three years after the claims became overdue, the court denied MVAIC's motion.
Trial court, Second Department
Jan 20, 2005
2005 NY Slip Op 50055(U)
Provider prevailed
The insurer's severance motion was denied because the four assigned claims shared legal questions and posed no undue burden or confusion. The provider sought unpaid no-fault benefits for services allegedly rendered to four assignors. The Civil Court, Kings County, denied the insurer's request for separate actions. Following Hempstead General Hosp. v Liberty Mut. Ins., claims involving a uniform insurance contract and common no-fault questions could remain joined despite separate accidents or individuals. The insurer submitted no documents showing an absence of common legal questions. CPLR 601 also permitted one plaintiff to join multiple claims against one defendant regardless of their relationship. Exercising its discretion, the court found no undue burden on the insurer or confusion for the factfinder.
Trial court, Second Department
Jan 17, 2005
2005 NY Slip Op 50024(U)
Provider prevailed
The insurer failed to prove timely mailing of its denials because its employee's affidavit did not detail the office mailing procedures. The Civil Court, Kings County, granted the provider summary judgment with statutory interest and attorney fees under Insurance Law § 5106 and 11 NYCRR 65-3.8. The employee relied on a file review and asserted that the bill was timely denied in the regular course of business. Proof required either actual mailing or a standard practice designed to ensure proper addressing and mailing. The affidavit supplied neither sufficient procedural details nor an explanation of how the employee learned those procedures or determined they were followed for this claim. Dates appearing on the denial forms did not establish timely mailing.
Trial court, Second Department
Jan 11, 2005
2005 NY Slip Op 50140(U)
Insurer prevailed
The provider's untimely request for master arbitration review precluded judicial review for failure to exhaust administrative remedies. The Civil Court, Kings County, dismissed its CPLR 7511 petition challenging the master arbitrator's rejection of review as untimely. Under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (d) (2), review had to be requested within 21 calendar days of mailing of the award. The provider offered no evidence supporting its assertion that the stamped mailing date was inaccurate and did not answer the master arbitrator's invitation to justify an extension. Mailing arguments not presented to the master arbitrator could not be raised in court. The court rejected the due process contention without reviewing the underlying award's merits.
