No-Fault Decisions, July 2005

Appellate Term, Second Department Jul 28, 2005 2005 NY Slip Op 51271(U) Insurer prevailed

Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp.

The provider could not recover from MVAIC because its assignor neither filed a timely notice of claim nor sought leave to file late. Insurance Law § 5221 (b) (2) required compliance with the applicable requirements of Insurance Law article 52. Failure to satisfy Insurance Law § 5208 (a) and (c) meant the assignor was not a covered person and had not fulfilled a condition precedent to payment. MVAIC's untimely denial did not preclude this lack-of-coverage defense. The Appellate Term, Second Department, modified the order to grant MVAIC summary judgment dismissing the action with prejudice, replacing dismissal without prejudice to relief under Insurance Law § 5218, and denied the provider's motion as academic.

Appellate Term, Second Department Jul 28, 2005 2005 NY Slip Op 51270(U) Provider prevailed

A.B. Med. Servs. PLLC v Allstate Ins. Co.

The insurer failed to prove timely mailing of its denials, entitling the providers to partial summary judgment on the claims they moved upon. The providers established claim submission and overdue payment under Insurance Law § 5106 (a). The insurer's field adjuster was familiar with the file but neither asserted actual mailing nor described office procedures ensuring proper addressing and mailing. The insurer thus failed to establish compliance with the 30-day period under 11 NYCRR 65-3.8 (a) (1). The Appellate Term, Second Department, reversed, granted partial summary judgment to all three providers, adjusted one claim amount as conceded by the insurer, and remanded for statutory interest, attorney fees, and further proceedings on claims outside the motion.

Appellate Term, Second Department Jul 21, 2005 2005 NY Slip Op 25297 Provider prevailed

A.B. Med. Servs. PLLC v USAA Gen. Indem. Co.

A provider's election to arbitrate no-fault claims does not bar another provider from litigating claims arising from the same accident. The Appellate Term, Second Department, reversed and granted the providers summary judgment, remanding for statutory interest and attorney's fees. Under Insurance Law § 5106 (b), each provider could independently elect arbitration; absent privity, the prior award had no preclusive effect. The assignors' undisputed affidavit supplied valid excuses for missed preclaim IMEs through cancellation and good-faith rescheduling efforts. Postclaim verification rules did not govern those requests under 11 NYCRR 65-1.1 (d). For remaining claims, failure to deny within 30 days or timely request verification precluded the IME defense under 11 NYCRR 65-3.8 (c). A separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 21, 2005 2005 NY Slip Op 51170(U) Insurer prevailed

S.I.A. Med. Supply Inc. v GEICO Ins. Co.

The provider's claims for 11 assignors were severed because they presented few common issues and a joint trial risked confusion. The Appellate Term, Second Department, reversed the order denying the insurer's motion under CPLR 603 and directed a separate action for each assignor's claim. The claims allegedly arose from separate accidents, although the record did not establish whether the second through eleventh causes of action involved five or ten accidents. The insurer disputed the necessity and reasonableness of the supplies and the sufficiency of the claim forms. Those claim-specific questions supported severance even if the policies were identical, following Radiology Resource Network, P.C. v Fireman's Fund Ins. Co.

Appellate Term, Second Department Jul 21, 2005 2005 NY Slip Op 51155(U) Provider prevailed

Ocean Diagnostic Imaging P.C. v General Assur. Co.

A provider that proves its claim and the amount of loss need not undergo a separate damages assessment after obtaining summary judgment. The Civil Court granted the provider's motion but ordered an assessment of damages. The Appellate Term, Second Department, modified the order to grant summary judgment without that assessment and remanded only for statutory interest and attorney's fees. The provider had established its prima facie case, and Insurance Law § 5106 (a), 11 NYCRR 65-3.9 (a), and 11 NYCRR 65-3.10 (a) prescribed the remaining calculations. A separate concurrence agreed only with the result and disputed propositions in cited cases.

Appellate Term, Second Department Jul 21, 2005 2005 NY Slip Op 51181(U) Provider prevailed

Ocean Diagnostic Imaging P.C. v Allstate Ins. Co.

The provider's proof of its claim and loss amount left no basis for a separate assessment of damages after summary judgment. The Appellate Term, Second Department, modified the order by granting the provider's summary judgment motion, deleting the damages assessment, and remanding for calculation of statutory interest and assessment of attorney fees; as modified, the order was affirmed. The court relied on Insurance Law § 5106 (a), 11 NYCRR 65-3.9 (a), and 11 NYCRR 65-3.10 (a), which prescribe interest and fees. It passed on no other issue; a separate concurrence agreed only with the result and disagreed with certain propositions in cited cases.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 25278 Split result

Rockaway Blvd. Med. P.C. v Progressive Ins.

⚠ Not followed by A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)

A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case. The Appellate Term, Second Department, reversed and granted the billing provider partial summary judgment, remanding for statutory interest and attorney's fees. Although 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), bars direct payment for independent contractors' services, the insurer neither asserted nor proved that defense. Without proper verification and timely denial, it waived objections to the forms' adequacy. An assignor's signature required no authentication, and failure to seek verification or deny on that ground also waived that objection. The other provider's appeal was dismissed because it raised no issue.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 25277 Insurer prevailed

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co.

A billing provider cannot recover assigned no-fault benefits directly for services rendered by an independent contractor. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's cross motion for summary judgment dismissing the billing provider's complaint, and otherwise affirmed. The provider's NF-3 forms expressly identified the treating physician as an independent contractor. Under 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), assignments for direct payment must run from the applicant to the provider of services; the regulations authorize no assignment by a provider. Both entities' licensed status did not make the billing provider the provider of these services. The remaining providers' appeals were dismissed because they raised no issue.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 51772(U) Provider prevailed

Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer failed to prove mailing of IME requests, and its untimely denial of one claim was not supported by effective tolling. The Appellate Term, Second Department, reversed and granted the provider summary judgment, remanding for interest and attorney fees under Insurance Law § 5106 (a). For two assignors, affidavits established neither actual mailing nor sufficiently detailed office mailing procedures for pre-claim IME notices; the insurer also offered no admissible proof of improper or excessive charges. For the third, it failed to prove mailing of verification requests or compliance with follow-up requirements under 11 NYCRR 65-3.5 (a) and 65-3.6 (b), precluding its IME defense. A dissent would have found the mailing affidavits sufficient and treated the third assignor's IME requests as pre-claim requests.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 51078(U) Provider prevailed

Medwide Med. Supply Inc. v Country-Wide Ins. Co.

The insurer's defenses failed because one denial was late, its medical reviews were incompetent, and assignment objections were waived. The provider proved claim submission and overdue payment. For one assignor, untimely denial precluded the defenses under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). For the other, unsworn nurses' reviews were inadmissible without an acceptable excuse and failed to establish the reviewers' qualifications. Failure to timely seek assignment verification or identify facial deficiencies in the denials waived assignment objections. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney fees; the dissent would have awarded the insurer summary judgment because an unsigned assignment could not confer standing.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 51080(U)

Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co.

The insurer's affidavit raised a coverage issue based on a founded belief of insurance fraud despite its untimely denial. The denial followed claim receipt by more than two months, and EUO requests did not toll the 30-day period because the then-applicable regulations did not authorize EUOs. Nevertheless, following Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's claims representative supplied a sufficient founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion and affirmed it as modified, leaving the insurer's cross motion denied because factual issues required trial; a separate concurrence disagreed with certain propositions in cited cases.

Appellate Term, Second Department Jul 7, 2005 2005 NY Slip Op 51079(U) Insurer prevailed

A.B. Med. Servs. PLLC v GMAC Ins.

The insurer's claims representative supplied facts supporting a founded belief that the alleged injuries did not arise from an insured incident. The providers established prima facie entitlement to no-fault benefits by proving submission of claims and overdue payment under Insurance Law § 5106 (a). In opposition, the insurer asserted that the injuries were not causally related to the accident. Following Central Gen. Hosp. v Chubb Group of Ins. Cos. and Mount Sinai Hosp. v Triboro Coach, the affidavit established a triable lack-of-coverage issue. The Appellate Term, Second Department, affirmed the denial of the providers' summary judgment motion.

Appellate Term, Second Department Jul 6, 2005 2005 NY Slip Op 51047(U) Insurer prevailed

Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp.

The insurer's investigators raised a triable coverage issue based on a founded belief that the injuries did not arise from an insured incident. The provider established its prima facie case for three assignors' claims; certificates of mailing and return receipts proved mailing for two. It failed to prove mailing for the fourth assignor. Under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 (c), an untimely denial generally precludes defenses, but not a defense that the collision furthered an insurance fraud scheme. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion entirely, vacating the award on one assignor's claim. It affirmed denial of the insurer's cross motion because factual issues required trial.

Appellate Term, Second Department Jul 6, 2005 2005 NY Slip Op 51046(U) Provider prevailed

S & M Supply Inc. v State-Wide Ins. Co.

A provider's billing manager need not have personal knowledge that prescribed equipment was delivered to establish a prima facie case. The provider submitted functional equivalents of claim forms under 11 NYCRR 65-3.5 (a) and (f), proof of overdue payment, and combined equipment receipt and assignment forms. The assignor's acknowledgment of receipt was unchallenged. Any perceived defect in the assignments required verification or assertion in a timely denial; the insurer's signature-authentication objection was unpreserved and lacked a statutory or regulatory basis. The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a).

Trial court, Second Department Jul 28, 2005 2005 NY Slip Op 51199(U) Insurer prevailed

Great Wall Acupuncture, P.C. v GEICO Gen. Ins. Co.

The provider failed to establish that a licensed acupuncturist's services warranted reimbursement above the chiropractor fee schedule rate. The Civil Court, Kings County, denied the provider's summary judgment motion challenging the insurer's reduced payments. Under 11 NYCRR 68.5 (b), a provider without an applicable fee schedule may charge the prevailing local fee, subject to insurer review for consistency with scheduled similar procedures. Counsel's assertions about local rates, training, and differences from physician acupuncture lacked personal knowledge or expert qualification. The provider supplied no evidence supporting a higher fee than a chiropractor's rate. Whether licensed-acupuncturist and chiropractor acupuncture were similar remained a factual question. With timely denial conceded, the only trial issue was the propriety of the reduction.

Trial court, Second Department Jul 27, 2005 2005 NY Slip Op 51197(U) Provider prevailed

City Wide Social Work & Psychological Servs., P.L.L.C. v General Assur. Co.

The insurer failed to prove timely denial or raise a triable fraud issue with admissible evidence. The provider established overdue claims under 11 NYCRR 65-3.8 (c). The insurer opposed only one assignor's claim and waived objections to claim and assignment forms by failing to request verification within 30 days. Its mailing affidavits described mail pickup and asserted timely processing without establishing mailing of the particular denial or the basis of the affiant's knowledge. Its fraud defense relied on an uncertified police report and hearsay that the assignor was absent from the accident scene, without an excuse for lacking admissible proof. The Civil Court, Kings County, granted summary judgment on both assignors' claims, with statutory interest and attorney's fees.

Trial court, First Department Jul 12, 2005 2005 NY Slip Op 51101(U) Insurer prevailed

Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C.

An injured claimant's failure to attend EUOs and IMEs rebuts presumed medical necessity but permits the provider to prove necessity at trial. In the insurer's declaratory judgment action, three providers sought payment on counterclaims. Complete assignments were required under 11 NYCRR 65-3.11 (b) (2). Timely EUO requests and follow-ups under 11 NYCRR 65-3.6 (b), with letters identifying the claimant and verification sought, tolled the denial period. Denial mailing to the medical provider remained disputed. The Supreme Court, New York County, denied the providers' summary judgment motion and partially granted the insurer's cross motion: the medical provider's claims for one assignor and chiropractic claims for two assignors survived; all other claims were dismissed for lack of complete assignments.

Trial court, Second Department Jul 8, 2005 2005 NY Slip Op 51058(U) Provider prevailed

Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co.

The insurer failed to toll its late denials or submit competent low-impact evidence supporting its lack-of-causation defense. The denial forms established receipt of the provider's four claims, but the insurer supplied no admissible proof of mailing verification requests. Untimeliness precluded coding and charge objections under Central General Hospital v Chubb Group of Insurance Companies. The low-impact affidavit lacked the certificate of conformity required by CPLR 2309 (c). Even if admissible, it neither identified the affiant as the report's preparer nor included the report, leaving no sufficient founded belief that the injuries did not arise from the accident. The Civil Court, Queens County, granted the provider summary judgment on all claims with statutory interest and attorney fees.

Trial court, Second Department Jul 7, 2005 2005 NY Slip Op 51215(U) Insurer prevailed

Maximum Physical Therapy, P.C. v Allstate Ins. Co.

The provider failed to establish its prima facie case because its supporting affidavit lacked specific facts and a basis for personal knowledge. The Civil Court, Queens County, denied summary judgment in the provider's action for unpaid no-fault benefits. The attorney's affirmation had no probative value despite a review of the client's file. The corporate officer's affidavit used boilerplate, identified no specific sources of knowledge, and omitted claim-specific facts such as services, mailing dates, and the outstanding amount. Adopting the attorney's affirmation did not cure those deficiencies. The court also identified defects in the affidavit's form. Because the submissions did not satisfy CPLR 3212 (b), the provider failed to prove submission of a timely, proper claim for unpaid services.