Court of Appeals
Apr 5, 2005
2005 NY Slip Op 02573
Provider prevailed
An insurer must show prejudice from late notice of a SUM claim when the insured previously gave timely notice of the accident. The injured claimant's SUM notice was untimely because it followed knowledge of the tortfeasor's inadequate limits by approximately six months. Nevertheless, the insurer received timely accident notice and an early no-fault claim, investigated the accident, and required medical examinations. The Court of Appeals modified the order to deny the insurer's summary judgment motion and remitted for an opportunity to establish prejudice, while otherwise affirming. The insurer bore that burden because it possessed the relevant claims-handling information.
Appellate Division, Second Department
Apr 25, 2005
2005 NY Slip Op 03210
Provider prevailed
An insurer was precluded from asserting delayed verification as a defense after failing to pay or deny upon receiving the requested material. The hospital timely submitted its claim but supplied verification more than a year later, beyond the 180-day proof-of-claim period in 11 NYCRR 65.12. The insurer's requests specified no response deadline. Its failure to pay or deny after receipt, as required by 11 NYCRR 65.15 (g) (2) (iii), precluded the untimeliness defense under Insurance Law § 5106 (a). The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted the hospital summary judgment on the first cause of action, and denied the insurer's cross motion on that claim; the other hospitals' appeals were dismissed under CPLR 5511.
Appellate Division, Third Department
Apr 21, 2005
2005 NY Slip Op 03096
Insurer prevailed
An intentional-act exclusion applies regardless of subjective intent when injury is inherent in the wrongful act. Following a fight, the insured accelerated a car parked two feet from a garage, driving an injured claimant into the garage door. The assertion that the insured intended only to frighten the claimant did not avoid the exclusion: moving the car forward in that confined space necessarily caused harm. For the same reason, the injuries were not caused by an accident and were ineligible for no-fault benefits. The Appellate Division, Third Department, affirmed summary judgment declaring no duty to defend or indemnify and dismissing the injured claimant's no-fault counterclaim.
Appellate Division, Second Department
Apr 18, 2005
2005 NY Slip Op 03046
Provider prevailed
An insurer's failure to timely deny a hospital claim precluded its defense that the hospital used the wrong DRG billing code. The insurer sought no verification and tendered only a belated partial payment, so 11 NYCRR 65.15 (g) (3) barred the coding defense. For another hospital's claim, it likewise failed to pay or effectively deny within 30 days and sought no further verification. The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted summary judgment on the second and third causes of action, and remitted to calculate benefits, interest, and attorney fees under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6; the nonaggrieved hospital's appeal was dismissed.
Appellate Division, Second Department
Apr 18, 2005
2005 NY Slip Op 02994
Insurer prevailed
A claimant who elects arbitration waives the right to litigate later no-fault disputes arising from the same accident. The injured claimant had previously arbitrated an alleged improper denial under Insurance Law § 5106 (b) before bringing this action for unpaid benefits. Applying Roggio v Nationwide Mut. Ins. Co., the Appellate Division, Second Department, reversed the claimant's summary judgment, denied the motion, and dismissed the complaint. Although the insurer had not moved on the arbitration-election ground, CPLR 3212 (b) permitted the court to search the record and award summary judgment to it on an issue subject to the motion; the insurer's remaining contentions were not reached.
Appellate Division, Second Department
Apr 11, 2005
2005 NY Slip Op 02845
Insurer prevailed
Injured claimants failed to provide adequate notice of a hit-and-run uninsured motorist claim despite ambiguous policy notice provisions. The policy required a sworn statement within 90 days identifying a cause of action involving a hit-and-run vehicle, while another provision required sworn proof after the insurer's written request. Ambiguity could excuse the sworn statement if the insurer otherwise received adequate notice within 90 days. Here, neither the attorney's claim letter, no-fault applications, nor notice-of-claim forms disclosed a hit-and-run vehicle. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the insurer's CPLR article 75 petition permanently staying arbitration.
Appellate Division, Second Department
Apr 11, 2005
2005 NY Slip Op 02813
Provider prevailed
A hospital raised a triable issue whether the insurer's first verification request preceded submission of its claim. The insurer paid the remaining policy balance after receiving verification and sought dismissal based on exhaustion. Its evidence placed claim receipt before both requests, but the hospital's billing-agent affidavit placed mailing and receipt later, potentially making the first request ineffective and leaving no timely follow-up. Under 11 NYCRR 65.15 (d) (1) and (e) (2), failure to follow up within 40 days requires payment, upon verification, ahead of later claims within policy limits. The Appellate Division, Second Department, modified the order to deny the insurer summary judgment upon renewal, leaving the hospital's cross motion denied; the other hospitals' appeals were dismissed as nonaggrieved.
Appellate Division, Second Department
Apr 11, 2005
2005 NY Slip Op 02830
Provider prevailed
An insurer's disclaimer more than 12 months after notice of an injured party's claim was untimely as a matter of law. In an action under Insurance Law § 3420 (a) (2) to collect an unsatisfied judgment, an earlier disclaimer addressed only a no-fault subrogation claim and the insured's failure to give notice. It did not disclaim the injured parties' claim or their own notice, so it was ineffective against them. The answer was the only disclaimer of their claim and violated Insurance Law § 3420 (d). The Appellate Division, Second Department, reversed upon reargument and renewal, reinstated the complaint, granted the injured parties summary judgment, and denied the insurer's cross motion; disclaimer grounds were academic.
Appellate Term, Second Department
Apr 29, 2005
2005 NY Slip Op 50648(U)
Provider prevailed
The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown. The equipment provider established its prima facie case through claim equivalents under 11 NYCRR 65-3.5 (a) and (f) and a billing manager's affidavit. One initial verification request was late; the others lacked proof of mailing or receipt. Additional letters submitted in sur-reply were not considered. The insurer also failed to show the policy contained the revised endorsement authorizing EUOs under 11 NYCRR 65-1.1 (d). Its only alleged follow-up requests were EUOs, leaving all denials untimely. The Appellate Term, Second Department, reversed the appealed denial of provider summary judgment, granted the motion, and remanded for interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Apr 29, 2005
2005 NY Slip Op 50644(U)
Provider prevailed
The insurer's proof failed to establish a founded belief that the collision was part of an insurance fraud scheme. The provider established claim submission and overdue payment. The insurer proved neither denial within 30 days under 11 NYCRR 65-3.8 (c) nor verification tolling under 11 NYCRR 65-3.5, precluding most defenses. The coverage defense remained available, but the claims representative's affidavit, unsworn investigator's report, and assignor's questionnaire did not identify the alleged discrepancies in accident accounts. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., that proof raised no coverage issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's cross motion, and remanded for statutory interest and attorney's fees.
Appellate Term, Second Department
Apr 29, 2005
2005 NY Slip Op 50642(U)
Provider prevailed
⚠ Not followed by A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)
A delay letter that requests no specific verification does not toll the 30-day no-fault claim determination period. The insurer's letter also followed expiration of the verification period, and its EUO requests concerned claims filed before the revised regulations authorized EUOs. Its Massachusetts-law fraudulent-application defense rested on conclusory attorney assertions without admissible supporting proof. The court further reasoned that, if the asserted New York domicile and garaging facts were true, issuing and continuing the Massachusetts policy should not permit evasion of New York's retroactive-cancellation bar under Vehicle and Traffic Law § 313. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Apr 29, 2005
2005 NY Slip Op 50650(U)
Split result
The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition. The Appellate Term, Second Department, reversed the appealed denial, remanded for interest and attorney fees under Insurance Law § 5106 (a), and dismissed the acupuncture and transportation providers' appeals because they raised no issue. It reached no other issue.
Appellate Term, Second Department
Apr 29, 2005
2005 NY Slip Op 50643(U)
Split result
The insurer's peer review raised a medical necessity issue for one test but lacked a factual basis for denying a second test. The insurer timely denied both claims based on peer reviews. For the first test, the reviewer's uncontroverted affirmed statement identified the absence of interim notes after the initial evaluation, raising a triable issue. Before the second test, however, an evaluation had occurred; its report apparently reached the insurer but was not furnished to the reviewer. The same missing-evaluation rationale therefore lacked factual merit. The Appellate Term, Second Department, modified the order to grant the provider partial summary judgment for the second test and remanded for interest, attorney fees, and further proceedings on the first claim.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50609(U)
Insurer prevailed
An insurer's timely denial and admissible proof of a reasonable pre-claim IME nonappearance rebut the presumption of medical necessity. The chiropractic provider established a prima facie claim under Insurance Law § 5106 (a). The insurer's affidavits established an office procedure ensuring proper mailing of IME notices. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances raised a medical-necessity issue because the provider offered neither a valid excuse nor proof that the requests were unreasonable. The Appellate Term, Second Department, affirmed the denial of the chiropractic provider's summary judgment motion, also found the insurer's cross motion properly denied, and dismissed the acupuncture provider's appeal for raising no issue; a partial dissent would have granted the insurer's cross motion.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50607(U)
Insurer prevailed
The insurer's accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial. The provider established a prima facie claim under Insurance Law § 5106 (a). The insurer neither paid nor denied within the 30-day period under 11 NYCRR 65-3.8 (c), and did not adequately establish a timely verification request extending that period under 11 NYCRR 65-3.5 (a) and (b). Nevertheless, the defense that the injuries were causally unrelated to the accident was not precluded. The reconstructionist's affidavit and low-impact study established a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed, denied the provider's summary judgment motion, and remanded for further proceedings.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50611(U)
Insurer prevailed
The insurer raised a factual issue as to whether the collision furthered an insurance fraud scheme despite its late denial. The provider established its prima facie entitlement to summary judgment under Insurance Law § 5106 (a) by proving submission of its claim and overdue payment. The insurer denied the claim more than two months after receipt, and its EUO requests did not toll the 30-day determination period because the applicable regulations did not authorize EUOs. Nevertheless, the fraud defense was not precluded. The claims representative'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 summary judgment motion.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50602(U)
Split result
Transportation benefits claimed under the revised no-fault regulations are reimbursable but cannot be assigned to a transportation provider. Applying 11 NYCRR 65-3.11 (a), Insurance Law § 5102 (a), and Matter of Medical Socy. of State of N.Y. v Serio, the Appellate Term, Second Department, modified the order and, upon searching the record, dismissed the transportation provider's claims submitted after the revised regulations took effect. It granted summary judgment to the three health care providers and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). The insurer's causal-relationship defense survived its late denials, but its affidavit was insufficient and its unsworn injury analysis and peer review were inadmissible. A dissent would have denied the health care providers' motion.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50606(U)
Insurer prevailed
The insurer's accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial. The provider established a prima facie claim under Insurance Law § 5106 (a). The insurer neither paid nor denied within the 30-day period under 11 NYCRR 65-3.8 (c), and did not adequately establish a timely verification request extending that period under 11 NYCRR 65-3.5 (a) and (b). Nevertheless, the defense that the injuries were causally unrelated to the accident was not precluded. The reconstructionist's affidavit and low-impact study established a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed, denied the provider's summary judgment motion, and remanded for further proceedings.
Appellate Term, Second Department
Apr 22, 2005
2005 NY Slip Op 50608(U)
Provider prevailed
The insurer's unsworn IME and peer review reports failed to raise a triable issue of medical necessity. The provider established its prima facie entitlement to summary judgment under Insurance Law § 5106 (a) by proving submission of claim forms stating the fact and amount of loss and overdue payment. The insurer relied on a pre-claim IME in its timely denials and also submitted a peer review report prepared after one denial. Neither unsworn report was competent evidence, and the insurer offered no acceptable excuse for failing to submit admissible reports. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50526(U)
Provider prevailed
The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests. Although the claims followed the revised regulations' effective date, the insurer did not establish a policy endorsement authorizing EUOs under 11 NYCRR 65-1.1 (d) or timely requests under 11 NYCRR 65-3.5 (b). The purported notices lacked admissible mailing proof and merely advised of processing delays. The insurer's denials established claim receipt; assignment authentication was not required, and any assignment defense was waived by failure to seek verification or identify deficiencies. The Appellate Term, Second Department, affirmed summary judgment for the provider, holding that the insurer's late denials precluded its fee-schedule and medical-necessity defenses.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50525(U)
Insurer prevailed
The insurer's sworn low-impact study raised a triable issue of accident-related causation despite untimely verification requests and denials. The provider established a prima facie claim under Insurance Law § 5106 (a), and the insurer's denial forms showed noncompliance with the 30-day determination period under 11 NYCRR 65-3.8 (c). Untimely verification requests did not extend that period. Nevertheless, the insurer could assert that the injuries were unrelated to the accident. The accident analysis report and reconstructionist's sworn certification were admissible, relevant to causation, and sufficient to establish a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50542(U)
Split result
The assignor's selective IME attendance established receipt of all listed requests and raised a medical-necessity issue on the no-show denials. The Appellate Term, Second Department, modified the order to grant summary judgment only on the acupuncture provider's additional claims denied for lack of medical necessity: the insurer's unsworn peer review was inadmissible under CPLR 2106. It remanded for statutory interest and attorney fees under Insurance Law § 5106 (a) and further proceedings on remaining claims. The no-show claims remained unresolved; the transportation provider withdrew one claim and failed to establish mailing of another because its unexplained proof of mailing predated the bill. The court also rejected assignment authentication as a requirement and found any assignment defense waived by failure to request verification or identify a deficiency.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50535(U)
The insurer's fraud evidence raised a coverage issue but did not establish lack of coverage as a matter of law. The provider established a prima facie claim under Insurance Law § 5106 (a). Although failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3) precluded other defenses, the insurer could still assert that the collision furthered an insurance fraud scheme. Its special investigator's affidavit demonstrated a founded belief that the injuries did not arise from an insured incident, defeating the provider's summary judgment motion, but was insufficient to warrant judgment for the insurer. The Appellate Term, Second Department, affirmed the denial of both the provider's motion and the insurer's cross motion.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50528(U)
Insurer prevailed
The provider's failure to comply with a conditional preclusion order made it absolute and prevented proof of the no-fault claim. After unanswered demands for a bill of particulars, the insurer obtained an unopposed order requiring service within 30 days of service of the order with notice of entry. The provider failed to comply and later served the particulars after the insurer sought dismissal under CPLR 3126. Relief from preclusion required an excusable default and a meritorious claim, but the provider's attorney offered no excuse. Because the demanded particulars were necessary to prove the case, the Appellate Term, Second Department, reversed and granted the insurer's motion to dismiss.
Appellate Term, Second Department
Apr 13, 2005
2005 NY Slip Op 50543(U)
Insurer prevailed
The provider's supporting affidavit failed to establish the affiant's requisite personal knowledge and had no probative value. In an action for assigned no-fault benefits for medical supplies, the provider relied on that affidavit to support its summary judgment motion. Following Republic W. Ins. Co. v RCR Bldrs. and Alvarez v Prospect Hosp., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.
Trial court, Second Department
Apr 29, 2005
2005 NY Slip Op 50662(U)
Split result
The insurer failed to prove psychotherapy and neurological testing medically unnecessary at trial, but established duplicate motor nerve billing. The Civil Court, Kings County, applying Insurance Law § 5102 (a) (1), required a factual basis and medical rationale supported by generally accepted practice. The psychotherapy reviewer did not substantiate deficiencies in the records or establish that an unlicensed clinician performed the evaluation under Education Law §§ 7600-7606; the court also found the review time inadequate. The treating neurologist persuasively explained that testing could confirm diagnostic suspicions and localize nerve injury. Uncontroverted testimony established duplicate motor nerve billing. The court awarded the provider judgment for the unpaid claims, reduced by the duplicate charge, with interest and attorney fees.
Trial court, Second Department
Apr 20, 2005
2005 NY Slip Op 50590(U)
Insurer prevailed
The provider's action was dismissed for failing to comply with a 90-day prosecution demand without a justifiable excuse. The insurer satisfied CPLR 3216 (b) by establishing joinder of issue, passage of one year, and service of the written demand by certified mail. The provider neither filed a notice of trial nor sought additional time within the demand period. Its reliance on outstanding discovery and an undecided summary judgment motion was insufficient, particularly because that motion was filed after the period expired and was later withdrawn by stipulation. Under CPLR 3216 (e), the provider needed both a justifiable excuse and a meritorious claim. The District Court, Nassau County, granted dismissal for want of prosecution.
Trial court, Second Department
Apr 18, 2005
2005 NY Slip Op 50565(U)
Insurer prevailed
A provider must establish medical necessity in its prima facie case when the insurer timely denies the claim. The insurer partially paid acupuncture claims and timely denied the disputed balance following peer review and the assignor's IME nonappearance. The arbitrator found medical necessity unproved, and the master arbitrator affirmed under Insurance Law § 5102 and 11 NYCRR 65-1.1. The Civil Court, Kings County, denied the provider's CPLR 7511 petition and affirmed the master arbitration award. It distinguished cases involving untimely denials and found the award supported by the record. The arbitrator's statement that denial timeliness was irrelevant was erroneous but harmless because the denials here were timely.
Trial court, Second Department
Apr 14, 2005
2005 NY Slip Op 50544(U)
Insurer prevailed
The provider's petition to vacate a master arbitration award was dismissed because mailing it to an unauthorized attorney did not confer jurisdiction. The provider sent the papers by regular mail to the attorney who prepared the insurer's master arbitration brief, who was not authorized to accept service. Under CPLR 7502 (a), 304, and 403 (c), this first judicial application required a special proceeding and service in the same manner as a summons. CPLR 7503 (c)'s allowance for service on an attorney concerned applications to stay arbitration, not to vacate completed awards. The Civil Court, Kings County, dismissed the petition and denied leave to make proper service relate back, finding no discretion to override the 90-day limitations period.
Trial court, Second Department
Apr 7, 2005
2005 NY Slip Op 50466(U)
Medically necessary treatment must rest on an objectively reasonable belief that it aids diagnosis and treatment and cannot reasonably be dispensed with. In a jury trial of assigned no-fault claims denied for lack of medical necessity, the Civil Court, Kings County, formulated an instruction because neither the statute nor the Pattern Jury Instructions defined the term. The instruction also required that treatment ordered by a qualified physician be warranted by the circumstances, verified by a preponderance of credible and reliable evidence, and reasonable in light of subjective and objective evidence of the patient's complaints. The decision reported no verdict or judgment for either party.
Trial court, Second Department
Apr 7, 2005
2005 NY Slip Op 50479(U)
Insurer prevailed
The providers' successive summary judgment motion was denied as res judicata because they offered no excuse for omitting the affidavits earlier. Their first motion for the same relief on the same claims had been denied for insufficient support. They neither requested a continuance under CPLR 3212 (f) nor moved to renew or reargue, instead submitting a new motion with treating physicians' affidavits. The Civil Court, Kings County, denied that motion. CPLR 3212 (b) required supporting evidentiary proof, and more detailed affidavits without newly found information or a reasonable explanation for their earlier omission did not justify reconsideration. The court found no basis to permit a fresh motion when reargument would be unavailable.
