Appellate Division, Second Department
Oct 24, 2005
2005 NY Slip Op 07932
Insurer prevailed
An insurer's contractual duties cease once it has paid the policy's full monetary limits. After the provider obtained summary judgment, the insurers showed that payments to other providers, an initial payment to this provider, and a final payment exhausted the $50,000 limit. The Appellate Division, Second Department, affirmed the order modifying the judgment to reflect satisfaction and quashing the information subpoena as academic. Collateral estoppel did not bar the exhaustion defense because the insurers had not previously had a full and fair opportunity to litigate that issue. The prior litigation had addressed only whether the injury and treatment were causally related to the motor vehicle accident.
Appellate Division, Second Department
Oct 24, 2005
2005 NY Slip Op 07961
Insurer prevailed
An arbitrator acted within discretionary authority in refusing late submissions from both parties to a no-fault arbitration. The claimant sought vacatur under CPLR 7511 of a master arbitrator's award affirming the original award. The Appellate Division, Second Department, affirmed the order denying the petition and dismissing the proceeding. Applying the narrowly construed statutory grounds for vacating or modifying no-fault awards, it found that the claimant had demonstrated none and that the master arbitrator's determination had a rational basis.
Appellate Division, Second Department
Oct 24, 2005
2005 NY Slip Op 07938
Insurer prevailed
An injured claimant's general release barred a later action alleging bad faith in the insurer's delayed processing of claims. After two prior actions and an arbitration seeking uninsured motorist and no-fault benefits, the claimant recovered the full policy limits and statutory penalties for delayed payment. A general release executed in settling the second action barred the subsequent action seeking, among other relief, breach-of-contract damages. The Appellate Division, Second Department, affirmed summary judgment dismissing the complaint; the claimant's remaining contentions were unpreserved or without merit.
Appellate Division, Second Department
Oct 17, 2005
2005 NY Slip Op 07691
A statutory arbitration proceeding over municipal uninsured motorist coverage does not require a tort notice of claim. The Appellate Division, Second Department, reversed dismissal of the petitioning insurer's proceeding to stay arbitration, rejecting reliance on General Municipal Law § 50-e (1) (a). It reached the insurer's newly raised argument because it presented an unavoidable legal question apparent on the record. The court remitted for a framed issue hearing on whether the self-insured municipality received notice as soon as reasonably practicable, and a new determination of the petition, referring to 11 NYCRR 65.11 (m) (2) and Insurance Law § 3420 (a) (3) and (4).
Appellate Term, First Department
Oct 26, 2005
2005 NY Slip Op 51735(U)
Insurer prevailed
An insurer is not obligated to pay or deny a no-fault claim until requested verification has been provided. The Appellate Term, First Department, modified the order to grant the insurer's cross motion for summary judgment dismissing the provider's complaint. The provider and its assignor failed to respond to timely requests for additional verification. Under 11 NYCRR 65-3.8 (b) (3), the insurer's time to respond to the claims therefore had not begun to run, and the provider's action for payment was premature.
Appellate Term, Second Department
Oct 21, 2005
2005 NY Slip Op 25456
Split result
The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant fourteen claims, remanding for interest, attorney fees, and remaining proceedings. Under 11 NYCRR 65-3.5 (a), (d), (e) and 65-3.6 (b), the EUO letters lacked identified examinees, times, and places, and the insurer failed to follow up the established IME nonappearance. Its staged-accident proof was inadmissible. Summary judgment remained denied on four claims received after the IME request: two medical, one chiropractic, and one acupuncture claim. The transportation provider's appeal was dismissed on its concession of no entitlement to relief. A partial dissent would have dismissed the other providers' claims.
Appellate Term, Second Department
Oct 21, 2005
2005 NY Slip Op 51745(U)
Provider prevailed
The insurer's untimely examination requests failed to toll its denial deadline, and its staged-accident defense lacked admissible proof. The Appellate Term, Second Department, affirmed summary judgment for the provider and denial of the insurer's cross motion for summary judgment or discovery. The insurer received the claim September 12, 2002, but denied it December 2, 2002. Its initial IME and EUO requests were untimely and failed to schedule examinations within 30 days under 11 NYCRR 65-3.5 (a), (b), and (d). The surviving staged-accident defense rested on conclusory assertions and unsworn reports. Investigators' reports addressed treatment and billing irregularities, a precluded defense, while the adverse operator's statements in the police report were inadmissible hearsay. The court did not reach the insurer's remaining contentions.
Appellate Term, Second Department
Oct 21, 2005
2005 NY Slip Op 51747(U)
Provider prevailed
The insurer's untimely EUO request did not toll its denial deadline, and its staged-accident defense lacked admissible proof. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's motion to preclude or compel discovery. The claim was received September 25, 2002, but denied March 28, 2003. The initial EUO request, dated December 10, 2002, violated 11 NYCRR 65-3.5 (a) and (d) and 65-3.6 (b); the assignor had no duty to appear, regardless of rescheduling. Although the fraud defense survived preclusion, unsworn reports and statements, counsel's assertions without personal knowledge, and a conclusory employee affidavit raised no triable issue. A partial dissent would have found the fraud submissions sufficient; the majority did not address remaining claims of error.
Appellate Term, Second Department
Oct 21, 2005
2005 NY Slip Op 51746(U)
Insurer prevailed
The insurer's unaffirmed peer reviews, also submitted and relied on by the provider, raised a triable issue of medical necessity. The Appellate Term, Second Department, affirmed denial of partial summary judgment for the chiropractic provider. That provider established submission of claims and overdue payment under Insurance Law § 5106 (a), but its own motion included denial forms with the peer reviews attached. The insurer likewise relied on those reports, which supplied a sufficient factual basis and medical rationale to defeat the motion. The acupuncture provider's appeal was dismissed under CPLR 5511 because it did not appear to be an aggrieved party.
Appellate Term, First Department
Oct 20, 2005
2005 NY Slip Op 25437
Insurer prevailed
An injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the provider's complaint. Under 11 NYCRR 65-1.1, IME attendance was a coverage condition; preclaim and postclaim IME requests were verification requests subject to the follow-up requirements of 11 NYCRR 65-3.6 (b). The insurer proved mailing to both addresses supplied by the assignor and nonappearance at the original and follow-up examinations. The provider offered no evidence disputing reasonableness or nonattendance. The court declined to follow the contrary majority holding in Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Oct 20, 2005
2005 NY Slip Op 51685(U)
Split result
The insurer's investigator affidavit established a founded belief of a staged collision sufficient to defeat the provider's summary judgment. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the provider's motion, while leaving denial of the insurer's cross motion intact. The provider established overdue benefits under Insurance Law § 5106 (a), and the insurer's failure to pay or deny within 30 days under 11 NYCRR 65-3.8 (c) precluded most defenses. The staged-collision defense survived. Numerous discrepancies in the assignor's and insured's EUOs concerning the accident supported a founded belief that the injuries did not arise from an insured incident, raising a triable coverage issue.
Appellate Term, First Department
Oct 11, 2005
2005 NY Slip Op 51632(U)
Provider prevailed
The insurer waived objections to the claim form and technical assignment defects by failing to object within 10 days of receipt. Under 11 NYCRR 65.15 (d), that failure defeated the insurer's challenge to the adequacy of the provider's submission. The provider established its prima facie entitlement to payment, and the insurer raised no triable issue. The Appellate Term, First Department, reversed the denial of summary judgment with leave to renew, granted the provider's motion, and remitted for assessment of attorney's fees under Insurance Law § 5106 (a) and entry of judgment with appropriate interest and fees.
Appellate Term, First Department
Oct 3, 2005
2005 NY Slip Op 51572(U)
Insurer prevailed
The insurer's discovery-sanctions motion should have been granted because the provider defaulted in opposing it. In an assigned no-fault action, the Civil Court sua sponte withdrew the insurer's motion to dismiss for noncompliance with court-ordered discovery and denied alternative relief reducing the demand. The Appellate Term, First Department, reversed and granted dismissal under CPLR 3126. The insurer had diligently attempted to enforce the discovery stipulation, and its sanctions motion was not untimely.
Trial court, Second Department
Oct 24, 2005
2005 NY Slip Op 25453
Insurer prevailed
An improper-referral defense under Public Health Law § 238-a (1) is not subject to the 30-day denial limitation. After trial, the District Court, Suffolk County, dismissed the provider's MRI claim. The insurer's peer-review testimony failed to prove lack of medical necessity by a fair preponderance of credible evidence. However, the referring physician was associated with a medical corporation whose sole shareholder also solely owned the MRI provider. The court found a prohibited referral under Public Health Law § 238-a (1), applying the financial-relationship definition in Public Health Law § 238 (3). Although omitted from the denial form, the improper-referral defense was pleaded in the answer and properly raised at trial because Insurance Law § 5106 (a) did not bar it.
Trial court, Second Department
Oct 24, 2005
2005 NY Slip Op 51755(U)
Provider prevailed
The insurer failed to establish timely mailing of verification requests, so the 30-day period to pay or deny was not tolled. The Civil Court, Queens County, denied the insurer's summary judgment motion asserting prematurity and granted the provider's cross motion for unpaid medical-supply benefits, statutory interest, and attorney fees. The provider proved submission of claims that the insurer acknowledged receiving and not paying. Although the insurer's litigation representative described mail collection procedures, the affidavit did not establish responsibility for ensuring compliance or actual knowledge that the procedures were followed. The insurer therefore lacked competent mailing proof supporting tolling under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), and the claim was overdue under Insurance Law § 5106 (a).
Trial court, Second Department
Oct 17, 2005
2005 NY Slip Op 25431
Insurer prevailed
The providers failed to prove medical necessity after the insurer established their assignors' nonappearance at preclaim IMEs. Following a joint trial, the Civil Court, Kings County, awarded judgment to the insurer dismissing both complaints. Testimony about standard mailing procedures established mailing of scheduling letters. The scheduling contractor's computer notes were admissible because the reporting professionals owed a business duty to supply accurate attendance information, despite the absence of their names. Neither provider offered an excuse or showed the requests unreasonable. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., nonappearance negated the presumption of medical necessity. The MRI referral and findings lacked supporting clinical or causation evidence, and the transportation necessity letter was conclusory.
Trial court, First Department
Oct 6, 2005
2005 NY Slip Op 51773(U)
Provider prevailed
The insurer's incorporation-fraud allegations lacked a reliable foundation for compelling depositions of the providers' owner and acupuncturists. The Civil Court, Bronx County, denied the insurer's CPLR 3126 motions to dismiss or compel discovery and granted the providers' protective orders. Under Mallela and 11 NYCRR 65-3.16 (a) (12), fraudulent incorporation and unlawful fee splitting were exceptions to denial preclusion. Nevertheless, the investigative affidavit offered hearsay, conjecture, and unrelated materials, without evidence contradicting the providers' corporate and licensing documents. Mallela required good cause, consisting of behavior tantamount to fraud, and 11 NYCRR 65-3.2 (c) barred verification demands without good reasons. The court declined to decide whether Mallela applied to claims arising before April 4, 2002.
Trial court, Second Department
Oct 3, 2005
2005 NY Slip Op 25424
Insurer prevailed
A billing provider may not amend fatally defective NF-3 forms at trial to replace independent-contractor designations with employee status. The Civil Court, Kings County, denied amendment and dismissed the entire action for the insurer. Under 11 NYCRR 65-3.11 (a), a billing provider cannot recover assigned benefits for independent contractors' services. Following Rockaway Blvd. Med. P.C. v Progressive Ins., that defense was nonwaivable despite the insurer's withdrawal of its denials and failure to request verification. CPLR 3025 (b) governed pleadings, not proofs of claim, and no authority empowered the court to grant this equitable relief. Alternatively, amendment would unfairly deny the insurer the verification and claim-determination periods afforded by 11 NYCRR 65-3.5 (a), 65-3.8 (c), and Insurance Law § 5106 (a).
Trial court, Second Department
Oct 3, 2005
2005 NY Slip Op 51569(U)
Provider prevailed
A denial stating only that a claim is denied based on an EUO is too vague to defeat a provider's summary judgment motion. The Civil Court, Kings County, granted judgment for the provider with statutory interest and attorney fees. Although the NF-10 was timely mailed, its explanation did not identify what about the EUO warranted denial. Under 11 NYCRR 65-3.4 (c) and General Accident Insurance Group v Cirucci, a denial must apprise the claimant of its grounds with a high degree of specificity. The blanket statement supplied no factual basis for a meritorious defense and was insufficient to overcome the provider's motion.
