Appellate Division, Second Department
Oct 24, 2006
2006 NY Slip Op 07722
Provider prevailed
An insured need not establish a serious injury in a contract action for benefits under an optional underinsurance endorsement. The Appellate Division, Second Department, affirmed the order striking the insurer's lack-of-serious-injury affirmative defense. After settling with the tortfeasor for the liability policy limit, the injured claimant sought underinsurance benefits from the claimant's own insurer. Insurance Law § 3420 (f) (2), unlike Insurance Law § 3420 (f) (1), omitted the serious-injury threshold defined in Insurance Law § 5102 (d). The court declined to apply the contrary exclusion in 11 NYCRR 60-2.3 (f), finding it unsupported by the statute. Under Insurance Law § 3420 (a), a contractual threshold was less favorable to the insured than the statutory coverage and could not be enforced.
Appellate Division, First Department
Oct 12, 2006
2006 NY Slip Op 07279
Split result
Insurers may withhold payment of pre-April 4, 2002 claims from fraudulently incorporated providers under 11 NYCRR 65-3.16 (a) (12). The Appellate Division, First Department, affirmed orders permitting withholding, dismissing the insurers' fraud and unjust enrichment claims concerning payments made before that date, and denying the providers' motion to strike corporate-form defenses to their counterclaims. Under Mallela, recovery of those earlier payments was unavailable, including on the asserted common-law grounds. The regulation's reimbursement bar applied to unpaid claims even where services had already been performed. Its remedial purpose supported retroactive application, and the providers had no vested reimbursement right. The constitutional contract argument failed because reimbursement arose by regulation, including 11 NYCRR 65-3.11, rather than a contract between the parties.
Appellate Term, Second Department
Oct 27, 2006
2006 NY Slip Op 52233(U)
Provider prevailed
The insurer lacked a meritorious defense to vacate its default because a completed hospital facility form replaced the requested no-fault application. The Appellate Term, Second Department, reversed the order and denied the insurer's motion to vacate the provider's default judgment. Service on the Superintendent of Insurance under Insurance Law § 1212 was established, and a mere denial of receipt did not rebut proper service. Although the insurer showed lack of actual notice in time to defend under CPLR 317, both that provision and CPLR 5015 (a) (1) required a meritorious defense. Under 11 NYCRR 65.15 (d) (6), now 11 NYCRR 65-3.5 (g), the completed hospital facility form had to be accepted in lieu of the application and hospital-treatment verification.
Appellate Term, Second Department
Oct 27, 2006
2006 NY Slip Op 52221(U)
Insurer prevailed
The provider's appeal became academic after a later order dismissed the action for failure to attend a court-ordered deposition. The Appellate Term, Second Department, dismissed the appeal from an order denying the provider summary judgment and directing it to appear for an examination before trial. The provider later sought reargument, and the insurer cross-moved for summary judgment based on nonappearance. The trial court denied reargument and dismissed the complaint because the provider undisputedly had not appeared. That subsequent dismissal rendered the pending appeal academic.
Appellate Term, Second Department
Oct 27, 2006
2006 NY Slip Op 52218(U)
Insurer prevailed
The provider failed to prove submission of one claim, while the insurer raised a founded-belief coverage defense despite its late denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The insurer's acknowledgment cured deficient mailing proof for one claim, but not the other. The acknowledged claim was denied beyond 30 days, without proven timely verification, under 11 NYCRR 65.15 (g) (3) and 11 NYCRR 65.15 (d) (1), (2). The defense that the collision furthered an insurance fraud scheme survived preclusion. The special investigator's affidavit established a founded belief that the injuries did not arise from an insured incident, raising a triable coverage issue. A separate concurrence agreed with the result while questioning propositions in the cited authorities.
Appellate Term, Second Department
Oct 27, 2006
2006 NY Slip Op 52222(U)
Insurer prevailed
The provider failed to establish when its claim was mailed, and its challenge to the insurer's entitlement to discovery was unpreserved. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment cross motion and the order compelling specified discovery. The billing manager asserted mailing without stating when or describing a mailing practice establishing the date. The certified-mail receipt and return card were insufficient because no evidence linked the claim to their article number. The insurer's papers did not cure the deficiency, so the record under CPLR 3212 (b) did not establish overdue payment. The discovery argument was first raised on appeal and contradicted the provider's concession to supply discovery if summary judgment were denied; a separate concurrence agreed only with the result.
Appellate Term, First Department
Oct 20, 2006
2006 NY Slip Op 52000(U)
Provider prevailed
The provider established its prima facie case through proof of its standard mailing procedure and overdue no-fault benefits. The provider submitted evidentiary proof that the prescribed billing forms had been mailed and received and that payment was overdue under Insurance Law § 5106 (a). Its description of an office procedure designed to ensure proper addressing and mailing was sufficient. The insurer raised no triable issue in opposition. The Appellate Term, First Department, affirmed the order granting the provider summary judgment.
Appellate Term, First Department
Oct 20, 2006
2006 NY Slip Op 51998(U)
Provider prevailed
The insurer's motion to vacate the notice of trial was denied after it failed to pursue a deposition or show a need for one. In the provider's no-fault action, the insurer served a deposition notice and written discovery demands approximately 20 months before the notice of trial was filed. It did not object to the provider's written interrogatories or use the opportunity to conduct a deposition before that filing. Given those circumstances and the failure to show a need for a deposition, the Appellate Term, First Department, affirmed the order denying the insurer's motion to vacate the notice of trial and statement of readiness.
Appellate Term, Second Department
Oct 5, 2006
2006 NY Slip Op 52034(U)
Provider prevailed
The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity. The provider established its prima facie entitlement to summary judgment for assigned no-fault benefits under Insurance Law § 5106 (a). An explanation of benefits form attached to the moving papers recorded the insurer's receipt date and established submission and receipt of the claim. The insurer failed to establish timely denial under 11 NYCRR 65-3.8 (c), leaving its medical necessity defense precluded. The Appellate Term, Second Department, reversed the order denying the provider's motion, granted summary judgment, and remanded for calculation of statutory interest and assessment of attorney's fees.
Appellate Term, Second Department
Oct 5, 2006
2006 NY Slip Op 52035(U)
Split result
The insurer's letters established receipt of 10 of 12 claims despite deficiencies in the provider's proof of mailing. The provider sought summary judgment for assigned no-fault benefits under Insurance Law § 5106 (a). Its officer neither attested to actual mailing nor described a standard mailing procedure, and certified mail receipts did not identify the claims received. A secretary's affidavit first submitted in reply could not be considered. Letters attached to the moving papers nevertheless established receipt of ten claims. Because the insurer opposed solely on prima facie grounds, the Appellate Term, Second Department, modified the order to grant judgment on those claims and remanded for statutory interest, attorney's fees, and further proceedings on the two remaining claims.
Appellate Term, Second Department
Oct 2, 2006
2006 NY Slip Op 51879(U)
Insurer prevailed
The provider's attorney affirmation failed to establish the admissibility of its claim forms or a prima facie entitlement to judgment. Counsel supplied no sufficient basis for personal knowledge or business-record foundation under CPLR 4518. Any insurer denials established receipt of claim forms but did not concede their admissibility or the facts they contained. The provider therefore failed to submit competent evidence under CPLR 3212 (b). The insurer also raised a triable issue whether the injuries arose from an insured incident, a defense that could first be asserted in opposition under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, reversed the judgment, vacated the reargument order, and denied the provider's summary judgment motion upon reargument.
Appellate Term, Second Department
Oct 2, 2006
2006 NY Slip Op 51877(U)
The provider's summary judgment appeal was held in abeyance because the motion court and appellate record differed about its affidavit. The motion court denied judgment with leave to renew, describing the corporate officer's affidavit as signed in blank and undated. The appellate record contained a signed, dated affidavit. Although the provider's supporting statements did not establish submission of the claims, the insurer's attached denials acknowledged receipt and ordinarily cured that deficiency in the prima facie showing under Insurance Law § 5106 (a). The Appellate Term, Second Department, remanded to the Civil Court, Queens County, for a report on whether the affidavit in the appellate record was the same one considered on the motion.
Appellate Term, Second Department
Oct 2, 2006
2006 NY Slip Op 51872(U)
Insurer prevailed
A master arbitrator's award must be at least $5,000 to permit a de novo action under Insurance Law § 5106 (c). The provider commenced an action for assigned no-fault benefits after a master arbitration award of $2,024.50. The statutory threshold concerned the award's amount, so the provider could not obtain de novo adjudication. Conversion to a special proceeding under CPLR 103 (c) was also inappropriate: neither the complaint nor the provider's supporting papers asserted any ground to vacate the award under CPLR 7511 (b) or 11 NYCRR 65-4.10. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss and denying the provider's conversion application.
Trial court, First Department
Oct 25, 2006
2006 NY Slip Op 52057(U)
Split result
The surgical facility failed to rebut certified evidence that it was not properly licensed or incorporated to receive no-fault reimbursement. The Civil Court, New York County, granted the insurer leave under CPLR 3025 (b) to add a fraud defense and partial summary judgment dismissing the surgical facility's claims. State agency certifications established noncompliance with Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c), as required by 11 NYCRR 65-3.16 (a) (12) and Insurance Law § 5102. An unsupported assertion of general-partnership status and a later conversion certificate did not rebut that showing. Under Mallela, the eligibility defense also applied to claims predating the regulation. The orthopedic provider's claims remained because the insurer supplied no basis to deny them.
Trial court, Second Department
Oct 24, 2006
2006 NY Slip Op 52039(U)
Insurer prevailed
Virginia law governed the policy's retroactive rescission because Virginia had the most significant contacts with the insurance contract. The provider sought summary judgment for unpaid no-fault benefits, and the insurer cross-moved to dismiss under CPLR 3211 (a) (5), relying on a Virginia default declaratory judgment rescinding the policy for material misrepresentations. Although the provider established its prima facie case under Insurance Law § 5106 (a), the policy was issued in Virginia based on the insured's residence, vehicle registration, and intended garaging there. Applying the grouping-of-contacts analysis and following Eagle Insurance Co. v Singletary, the Civil Court, Kings County, denied the provider's motion and granted the insurer's cross motion.
Trial court, Second Department
Oct 13, 2006
2006 NY Slip Op 51992(U)
Provider prevailed
The insurer's investigator affidavit and EUO transcripts failed to establish a founded belief that the collision was staged. The provider established an overdue MRI claim under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). Under Central General Hosp. v Chubb Group of Ins. Cos., an untimely denial does not preclude a lack-of-coverage defense, but admissible evidence must establish its factual foundation. The investigator referred to undisclosed information suggesting intentional conduct and relied on alleged inconsistencies in the EUOs. The District Court, Nassau County, found those transcripts insufficient to raise a triable issue and granted the provider summary judgment, with interest and attorney's fees under 11 NYCRR 65-3.9 (a) and 65-4.6 (e).
Trial court, Second Department
Oct 12, 2006
2006 NY Slip Op 51936(U)
Split result
The insurer's peer review raised a medical necessity issue but did not warrant summary judgment. The provider established its prima facie case through denial forms attached to the parties' motion papers. One claim had been paid late, entitling the provider to attorney's fees under Insurance Law § 5106. As to the two unpaid claims, the insurer's admissible peer review expressed a competent physician's opinion sufficient to raise a triable issue, but the Civil Court, Kings County, found it insufficient to rebut the presumption of medical necessity for purposes of the insurer's cross motion. The court granted the provider's motion only for attorney's fees on the paid claim and denied the insurer's cross motion, leaving medical necessity for trial.
Trial court, Second Department
Oct 3, 2006
2006 NY Slip Op 51851(U)
Insurer prevailed
Regulation 68's assignment restriction bars transportation claims for services rendered after April 5, 2002, despite earlier policy endorsements. On stipulated facts, the transportation provider sought assigned no-fault benefits under policies issued before the amendment and containing assignability clauses. It argued that the restriction applied only to policies later issued or renewed. The District Court, Suffolk County, rejected an existing-policy exception, following A B Medical Services PLLC v Motor Vehicle Acc. Indemnification Corp. and Medical Society of State of New York v Serio. The court reasoned that rights under Insurance Law article 51 arise principally from statute and regulation, and the amendment voided inconsistent assignment language as contrary to public policy. It dismissed the provider's complaint.
Trial court, Second Department
Oct 2, 2006
2006 NY Slip Op 26395
Insurer prevailed
Attorney's fees on multiple no-fault bills in one action are calculated on the aggregate award for each assignor. The parties settled 21 bills involving three assignors when trial was scheduled to begin, leaving only the fee calculation disputed. The Civil Court, Richmond County, adopted the insurer's position under 11 NYCRR 65-4.6 (c) and (e), deferring to the Insurance Department's reasonable interpretation. It ordered judgment under the settlement with fees calculated at 20% of each assignor's aggregate benefits and interest, subject to a $60 minimum and $850 maximum. Smithtown Gen. Hosp. v State Farm was consistent with that approach because each claim involved a different assignor; whether Hempstead Gen. Hosp. conflicted with the agency's interpretation remained unclear.
