Appellate Division, Second Department
Sep 26, 2005
2005 NY Slip Op 06935
A personal injury settlement does not extinguish a carrier's loss-transfer rights absent an express waiver. A municipality sought reimbursement of workers' compensation benefits through mandatory arbitration under Insurance Law § 5105. The employee's general release did not waive the municipality's rights, and its consent to settlement likewise contained no express waiver. The Appellate Division, Second Department, reversed vacatur, denied the automobile insurer's petition, reinstated and confirmed the award, and remitted for judgment. The majority found evidentiary support and compliance with 11 NYCRR 65.10 (d) (4) (vii); two judges dissented because the arbitrator's explanation did not adequately address waiver.
Appellate Division, Second Department
Sep 12, 2005
2005 NY Slip Op 06666
Provider prevailed
An insurer failed to establish a reasonable excuse or meritorious defense for vacating its default in opposing summary judgment. Counsel's conclusory law-office-failure assertion lacked detailed facts and was insufficient under CPLR 5015 (a) (1). For one claim, proof was submitted within the 180-day period required by 11 NYCRR 65.12, and the claims representative's affidavit did not demonstrate that the injuries arose outside an insured incident. For another, the insurer failed to show denial within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The Appellate Division, Second Department, reversed, denied vacatur, and reinstated the hospitals' judgment.
Appellate Term, Second Department
Sep 30, 2005
2005 NY Slip Op 51598(U)
Insurer prevailed
The insurer's affidavit raised triable issues of intentionally caused collisions despite its untimely denials. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider summary judgment on the two causes of action under review. The provider had established submission of claims for medical supplies and overdue payment under Insurance Law § 5106 (a). The insurer's failure to pay or deny within 30 days under 11 NYCRR 65-3.8 (c) precluded most defenses, but not its defense that the collisions furthered insurance fraud schemes. The representative's affidavit concerning the insureds' involvement in intentionally caused collisions sufficed to raise factual issues concerning those claims.
Appellate Term, Second Department
Sep 20, 2005
2005 NY Slip Op 25402
Provider prevailed
The insurer's wage-verification fraud allegations failed to establish a lack-of-coverage defense exempt from untimely-denial preclusion. The denial forms established claim receipt and overdue payment, making out the provider's prima facie case. Under 11 NYCRR 65-3.8 (c), the insurer's late denials precluded its fee-schedule and excessive-billing defenses. Its attorney lacked personal knowledge, and its handwriting expert's report was unsworn. Alternatively, the expert's conclusion that two wage forms were prepared by the same person did not raise a factual issue that the medical services arose outside an insured incident or that the accident furthered a fraud scheme. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Sep 20, 2005
2005 NY Slip Op 51525(U)
Provider prevailed
The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates. The Appellate Term, Second Department, reversed and granted the provider summary judgment, remanding for interest and attorney fees under Insurance Law § 5106 (a). Reductions based on geographic prevailing rates were improper under 11 NYCRR Appendix 17-C, part E (b) (1). Claim forms established policy coverage prima facie, without contrary insurer proof. Assignment objections were waived because the insurer neither sought verification nor specified deficiencies in its denials. The billing manager's affidavit established a foundation under CPLR 4518 (a) for records proving delivery, despite the manager's lack of personal involvement in or observation of delivery.
Appellate Term, Second Department
Sep 20, 2005
2005 NY Slip Op 51527(U)
Provider prevailed
The insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost. The applicable limitation was 11 NYCRR Appendix 17-C, part E (b) (1); the court distinguished the revised schedule's usual-and-customary-price alternative. The provider proved claims through functional equivalents of statutory forms under 11 NYCRR 65-3.5 (a) and (f), and its billing manager established delivery through business records under CPLR 4518 (a) without personally witnessing it. Claim forms established coverage absent contrary proof. Assignment objections were waived because the insurer neither sought verification nor identified deficiencies in its denials. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Sep 20, 2005
2005 NY Slip Op 51526(U)
Provider prevailed
The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney fees under Insurance Law § 5106 (a). Local-rate reductions were improper under 11 NYCRR Appendix 17-C, part E (b) (1). Functional equivalents of claim forms established overdue benefits, and the billing manager's affidavit supported business-record admission under CPLR 4518 (a) without personal observation of delivery. Untimely denials without proven tolling precluded defenses to three claims. The insurer offered no contrary policy-coverage proof or sufficient staged-accident evidence, and waived assignment objections by neither seeking verification nor specifying deficiencies in denials.
Appellate Term, First Department
Sep 9, 2005
2005 NY Slip Op 51427(U)
Provider prevailed
The insurer failed to establish that the policy authorized EUOs, so its denial based on the assignor's nonattendance was untimely. The provider established its prima facie entitlement to payment by proving that its claim had been mailed and received and that benefits were overdue under Insurance Law § 5106 (a). Although the claim was submitted after the revised regulations took effect, the EUO provisions applied only when policies containing the revised endorsement were issued or renewed. Without proof of an endorsement authorizing EUOs under 11 NYCRR 65-1.1 (d), the insurer could not toll the 30-day period under 11 NYCRR 65-3.8 (c). The Appellate Term, First Department, reversed, granted the provider summary judgment, denied the insurer's cross motion, and remanded for interest, attorney fees, and judgment.
Trial court, Second Department
Sep 14, 2005
2005 NY Slip Op 25461
Insurer prevailed
The licensing bar in 11 NYCRR 65-3.16 (a) (12) applies retroactively to unpaid claims predating the amendment. The Civil Court, Queens County, granted the insurer's cross motion for summary judgment and dismissed the complaint. The provider did not dispute sharing up to 65% of gross revenues with a corporation owned by a nonphysician. Treating the amendment as a remedial clarification of existing licensing requirements, the court deferred to the Insurance Department's interpretation. It also relied on the ownership and fee-sharing prohibitions in Business Corporation Law § 1503 (b), 8 NYCRR 29.1 (b) (4), and Education Law §§ 6511 and 6530 (19). Although the provider established its prima facie case, the denials being late or premature under 11 NYCRR 65-3.8 (b) (3), the licensing defense warranted dismissal.
Trial court, Second Department
Sep 13, 2005
2005 NY Slip Op 51440(U)
Insurer prevailed
The provider's action was dismissed for failure to prosecute because it lacked a justifiable excuse and a meritorious claim. After a proper 90-day demand under CPLR 3216, the provider neither filed a notice of trial nor sought an extension. Its assertion that counsel's computer system had not recorded the demand was insufficient law office failure. The merits affidavit incorporated an unsworn report recommending massage therapy, and the treatment records showed services only by licensed massage therapists. The fee schedule incorporated through Insurance Law § 5108 (a) and (b) required a physician or a licensed physical or occupational therapist under physician supervision, excluding reimbursement for licensed massage therapists. The District Court, Nassau County, granted the insurer's motion and dismissed the complaint.
