Appellate Division, Second Department
Nov 21, 2005
2005 NY Slip Op 08962
Provider prevailed
An insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim. The hospital proved that billing forms were mailed and received and that payment was overdue. The insurer waived objections to the assignment by failing to timely object or seek verification. Under 11 NYCRR 65.15 (d) (6), it also could not await a separate no-fault application instead of accepting the completed hospital facility form. The Appellate Division, Second Department, reversed, granted the hospital summary judgment for statutory interest and attorney fees, denied the insurer's cross motion, reinstated the complaint, and remitted to calculate the amount due.
Appellate Term, Second Department
Nov 21, 2005
2005 NY Slip Op 51902(U)
Provider prevailed
A sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity. The Appellate Term, Second Department, reversed the order and granted the medical provider partial summary judgment on three claims. One claim was not timely paid or denied under 11 NYCRR 65-3.8 (c). Another lacked a complete denial and competent proof of mailing IME requests. The medical-necessity denial was factually insufficient despite admissible peer review evidence. Assignment objections were waived. The matter was remanded for interest and attorney fees under Insurance Law § 5106 (a) and proceedings on remaining claims. The other providers' appeals were dismissed because they raised no issue; a dissent sought a hearing on document reliability.
Appellate Term, Second Department
Nov 21, 2005
2005 NY Slip Op 51898(U)
Insurer prevailed
The insurer raised a triable coverage issue through documentation supporting a founded belief that the injuries were unrelated to the accident. The provider sought payment for medical supplies and established submission of claims stating the losses and overdue benefits under Insurance Law § 5106 (a). In opposition, the insurer asserted that the assignor's injuries were not caused by the subject accident and supplied supporting documentation. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Term, Second Department, found that showing sufficient and affirmed denial of the provider's summary judgment motion.
Appellate Term, First Department
Nov 16, 2005
2005 NY Slip Op 51842(U)
Provider prevailed
The insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment. The providers proved submission of claims and overdue payment under Insurance Law § 5106 (a). Although the claims were submitted after the revised regulations took effect, 11 NYCRR 65-1.1 (d) applied only when a new or renewed policy contained the revised endorsement. Without proof of that endorsement, the insurer could not assert breach of an EUO condition precedent. Cooperation provisions in the policy's liability portion could not qualify statutory no-fault protection.
Appellate Term, Second Department
Nov 4, 2005
2005 NY Slip Op 51892(U)
Split result
Transportation benefits are nonassignable under the revised no-fault regulations for claims submitted on or after April 5, 2002. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting three health care providers summary judgment and, upon searching the record, dismissing the transportation provider's claim under 11 NYCRR 65-3.11 (a) and Insurance Law § 5102 (a). The providers established overdue claims; untimely denials precluded most defenses, and assignment objections were waived. Although lack of coverage remained available, EUO excerpts and a claim representative's affidavit failed to establish a founded belief that the injuries did not arise from an insured incident. The matter was remanded for interest and attorney fees under Insurance Law § 5106 (a); the remaining provider's appeal was dismissed because it raised no issue.
Appellate Term, Second Department
Nov 4, 2005
2005 NY Slip Op 51888(U)
Insurer prevailed
An insured seeking Virginia uninsured motorist benefits for a New York accident was required to satisfy New York's serious injury threshold. The Appellate Term, Second Department, affirmed denial of the insured's motion to dismiss the insurer's serious injury defenses under Insurance Law § 5102 (d). Virginia Code § 38.2-2206 (A) and (H) required the insured to establish legal entitlement to damages and the uninsured motorist's liability. The insurer could therefore assert defenses available to that motorist. Applying interest analysis to the loss-allocation issue, the court relied on the accident's New York location, the insured's New York residence at the time, and New York's policy of excluding minor automobile injury claims from litigation.
Appellate Term, Second Department
Nov 4, 2005
2005 NY Slip Op 51893(U)
Provider prevailed
The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt. The medical provider established prima facie entitlement to partial summary judgment by proving submission of claims stating the fact and amounts of its losses and overdue payment under Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted partial summary judgment on that provider's claims at issue and remanded for statutory interest, attorney fees and proceedings on the remaining claims. The other providers' appeals were dismissed under CPLR 5511 because they lacked an interest in the specific sums in controversy.
Trial court, First Department
Nov 29, 2005
2005 NY Slip Op 51988(U)
Provider prevailed
The insurer failed to justify a stay of SUM arbitration because the evidence favored finding that the collision caused the claimant's fracture. After a framed-issue hearing, the Supreme Court, Bronx County, dismissed the insurer's CPLR article 75 petition and directed SUM arbitration. Under CPLR 7503 (b) and Walton v Lumbermens Mut. Cas. Co., the vehicle had to proximately cause the injury; merely exiting it would not establish causation. The court credited the claimant's account of impacts inside the van and immediate leg pain. Although medical records referred to a fall on ice, no witness directly attributed that account to the claimant, and the driver conceded not witnessing the fall. The evidence preponderated in favor of collision-related injury.
Trial court, Second Department
Nov 22, 2005
2005 NY Slip Op 51909(U)
Provider prevailed
The insurer's denial was fatally defective for omitting required claim information and was also untimely. The denial omitted the provider's name, bill and receipt dates, and disputed amount, precluding opposition evidence under Nyack Hospital v State Farm Mutual Automobile Insurance Co. Although the insurer argued verification remained incomplete, it had issued a denial. Applying 11 NYCRR 65-3.8 (a) (1) and (b) (3), the court treated March 28, 2002, as receipt of proof of claim; the July 15, 2002 denial exceeded 30 days. The District Court, Nassau County, granted the provider summary judgment with statutory interest and attorney's fees. It considered the insurer's opposition but rejected its purported cross motion for untimeliness and lack of notice.
Trial court, First Department
Nov 15, 2005
2005 NY Slip Op 25483
Insurer prevailed
A provider cannot recover statutory attorney's fees alone in the Civil Court's No-Fault Part after the underlying overdue claim has been paid. The provider conceded payment before suit and sought only fees for securing payment. Reading 11 NYCRR 65-3.10 (a) and 65.17 (b) (6) together, the Civil Court, Bronx County, construed an overdue claim, for fee purposes when suit commenced, as an unpaid claim. The regulations contemplated fees secondary to a judgment on the underlying no-fault claim and were silent about the forum for fees alone after payment. The court denied the provider's summary judgment motion and granted the insurer's cross motion, dismissing without prejudice to renewal in the proper forum.
Trial court, Second Department
Nov 9, 2005
2005 NY Slip Op 51815(U)
Insurer prevailed
The provider failed to establish its prima facie case because its employee's affidavit did not lay a business-record foundation. The Civil Court, Kings County, denied the provider's summary judgment motion under CPLR 3212 (b). Although the employee recited recordkeeping requirements, the affidavit gave no job title, duties, or familiarity with the provider's recordkeeping, billing, or payment procedures sufficient to establish competence under CPLR 4518 (a). A conclusory assertion of personal knowledge did not disclose its source. Counsel's affirmation lacked personal knowledge and could not supply admissible proof of the claims. The court did not reach the sufficiency of the insurer's opposition and noted that the employee's affidavit also failed to lay a foundation for the denials.
