Court of Appeals
Nov 20, 2007
2007 NY Slip Op 09067
Provider prevailed
An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered. The Court of Appeals affirmed summary judgment for the hospital. Claim and assignment forms stated that the patient's signature was "on file," but the insurer neither sought verification under 11 NYCRR 65-3.5 (b) and 65-3.11 (c) nor paid or denied the claim within 30 days under Insurance Law § 5106 (a). Assignment defects did not implicate lack of coverage and therefore were subject to preclusion. Assuming assignment proof was a prima facie requirement, the forms satisfied it absent timely verification. A dissent would have required affirmative proof of a valid assignment despite the insurer's inaction.
Court of Appeals
Nov 15, 2007
2007 NY Slip Op 08777
Insurer prevailed
A SUM endorsement's serious injury exclusion for noneconomic loss from a New York accident is enforceable. The Court of Appeals reversed the Appellate Division order and denied the injured claimant's motion to strike the insurer's serious injury defense. After receiving no-fault benefits and settling with the tortfeasor's insurer for its policy limit, the claimant sought additional pain-and-suffering damages under SUM coverage. Although Insurance Law § 3420 (f) (2) does not expressly require serious injury, its text and legislative history do not prohibit that requirement. The exclusion prescribed by 11 NYCRR 60-2.3 (f) (Exclusions) (3), referencing Insurance Law § 5102 (d), accords with SUM coverage's purpose of providing insureds the protection they would afford injured third parties.
Appellate Division, Second Department
Nov 27, 2007
2007 NY Slip Op 09376
Insurer prevailed
The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service. The Appellate Division, Second Department, reversed the hospital's judgment and, upon reargument, adhered to the original denial of the hospital's summary judgment motion. The hospital established prima facie that its billing forms were mailed and received and benefits were overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer's evidence of late submission under 11 NYCRR 65-1.1 and 65-3.3 (e) raised a triable issue concerning whether benefits were overdue. The separate appeal from the intermediate order was dismissed because judgment had been entered.
Appellate Division, Second Department
Nov 13, 2007
2007 NY Slip Op 09024
Provider prevailed
The insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms. The Appellate Division, Second Department, affirmed the hospital's judgment, upholding summary judgment on the complaint and denial of the insurer's cross motion to dismiss the first cause of action. Billing forms, biller affidavits, and postal receipts established unpaid claims under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a). The claims supervisor lacked personal knowledge of mailing, and conclusory descriptions of office procedures did not establish proper addressing and mailing of requests under 11 NYCRR 65-3.5 (b). The insurer also failed to timely object to the assignments' completeness or seek their verification.
Appellate Division, Second Department
Nov 7, 2007
2007 NY Slip Op 08447
Insurer prevailed
The hospital failed to establish that the insurer's timely NF-10 denial was too vague or deficient to constitute a proper response. The Appellate Division, Second Department, affirmed denial of the hospital's summary judgment motion. Its moving papers did not demonstrate an insufficient denial under 11 NYCRR 65-3.4 (c) (11), and the denial was issued within the 30 days required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1). Because the hospital failed to establish prima facie entitlement to judgment, the court did not reach the insurer's opposition and declined judicial notice of diagnostic codes on the UB-92 form.
Appellate Term, Second Department
Nov 29, 2007
2007 NY Slip Op 52300(U)
Insurer prevailed
The insurer's investigator raised a triable issue as to whether the assignor's injuries arose from an insured incident. The provider had obtained summary judgment on five of six claims for assigned no-fault benefits. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the investigator's affidavit demonstrated a founded belief that the alleged injuries did not arise from an insured incident, creating a factual issue concerning coverage. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion in its entirety and remanded for further proceedings; a dissent would have affirmed because the affidavit was conclusory and lacked admissible supporting proof.
Appellate Term, Second Department
Nov 21, 2007
2007 NY Slip Op 52284(U)
Provider prevailed
The insurer failed to prove timely mailing of its denials and was precluded from asserting medical-necessity and fee-schedule defenses. Its representative's affidavit established neither personal mailing nor an office practice ensuring proper addressing and mailing. Without proof of denial within 30 days under 11 NYCRR 65-3.8 (c), those defenses were unavailable. The insurer also failed to prove that the provider had previously elected arbitration of a no-fault claim involving the same assignor and accident. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion; a dissent found timeliness conceded and medical necessity sufficiently disputed, but agreed that the arbitration defense was unproved.
Appellate Term, Second Department
Nov 21, 2007
2007 NY Slip Op 52285(U)
Insurer prevailed
The insurer's investigator raised a triable coverage issue by showing a founded belief that the injuries did not arise from an insured incident. The provider had obtained summary judgment for assigned no-fault benefits. The sole appellate issue was whether the insurer's evidence created a factual dispute concerning coverage. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the investigator's affidavit was sufficient to defeat the provider's motion. The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting the provider summary judgment and denied that motion.
Appellate Term, Second Department
Nov 21, 2007
2007 NY Slip Op 52286(U)
Insurer prevailed
An arbitration award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider sought to vacate a master arbitrator's award upholding the denial of assigned no-fault benefits. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld the denial of the petition. It modified the judgment to add confirmation of the award, as the statute required, and otherwise affirmed, leaving the insurer's favorable award intact.
Appellate Term, Second Department
Nov 21, 2007
2007 NY Slip Op 52287(U)
Insurer prevailed
The provider's summary judgment proof lacked a proper business-record foundation because its officer's personal knowledge was not established. The provider initially lost its motion for assigned no-fault benefits, then obtained reargument and summary judgment. On the insurer's appeal, the corporate officer's affidavit failed to establish familiarity with the provider's practices and procedures sufficient to admit the attached documents as business records. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment upon reargument and denied the provider's motion; it reached no other issue.
Appellate Term, Second Department
Nov 21, 2007
2007 NY Slip Op 52293(U)
Insurer prevailed
The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation. In this action for assigned no-fault benefits, the affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit the documents attached to the moving papers. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion on that ground, rather than the lower court's finding of a factual issue concerning medical necessity.
Appellate Term, Second Department
Nov 20, 2007
2007 NY Slip Op 52275(U)
Split result
The provider lacked prima facie proof on one claim, while MVAIC failed to prove noncompliance with notice requirements on another. The provider conceded deficient prima facie proof but sought summary judgment on one assignor's claim through a search of the record. The Appellate Term, Second Department, found no abuse of discretion in declining that search and affirmed denial of the provider's motion. For another assignor, the record did not establish failure to satisfy Insurance Law § 5208 (a); the order, insofar as reviewed, was modified to deny MVAIC's cross motion for summary judgment on that claim. The severance appeal was dismissed under CPLR 5511 because the provider's failure to oppose the cross motion made that branch a default order.
Appellate Term, Second Department
Nov 20, 2007
2007 NY Slip Op 52280(U)
Insurer prevailed
The provider failed to establish a prima facie case through an officer's conclusory assertion that attached documents were business records. In seeking summary judgment for assigned no-fault benefits, the provider submitted an attorney affirmation, an officer's affidavit and supporting documents. The insurer challenged the foundation for those documents. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit them as business records. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion.
Appellate Term, Second Department
Nov 20, 2007
2007 NY Slip Op 52281(U)
Provider prevailed
The provider was entitled to summary judgment because its prima facie showing stood unopposed. The lower court found a prima facie case under CPLR 3212 (g), but denied summary judgment after finding factual issues in the insurer's denial form. The insurer submitted no opposition, and the appellate court did not review the uncontested prima facie determination. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's motion and remanded for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 (a) and the implementing regulations.
Trial court, Second Department
Nov 27, 2007
2007 NY Slip Op 52253(U)
Provider prevailed
The provider's neurologist rebutted the insurer's medical evidence and established the necessity of cervical and lumbar MRIs. At trial, the parties stipulated to the provider's prima facie case and timely denial, leaving medical necessity as the sole issue. The insurer's chiropractor initially established lack of medical necessity under 11 NYCRR 65.15. The provider's neurologist sufficiently rebutted that testimony through the assignor's age, neck and back complaints and objective test findings, which supported MRIs to determine structural spinal damage. The Civil Court, Kings County, entered judgment for the provider with statutory interest and attorney's fees, resolving uncertainties about reasonableness in favor of coverage.
Trial court, Second Department
Nov 23, 2007
2007 NY Slip Op 52209(U)
Insurer prevailed
The insurer obtained vacatur of the provider's default judgment based on a Supreme Court stay and a factual dispute over a staged accident. A later declaratory judgment against the assignors stayed proceedings, although the provider was neither named nor notified. The Civil Court, Kings County, treated judgment entry during the stay as a nullity. Despite the insurer's failure to provide a reasonable excuse under CPLR 5015, the court exercised its inherent power to vacate the earlier default award in the interests of justice. The declaratory judgment and the insurer's original opposition papers raised factual questions precluding summary judgment under CPLR 3212. The court granted vacatur and denied the provider's summary judgment motion, expressly declining to determine the declaratory judgment's collateral-estoppel effect.
Trial court, Second Department
Nov 7, 2007
2007 NY Slip Op 52143(U)
Insurer prevailed
MVAIC's duty to conduct supervisory review of a late claim is triggered only after the provider supplies an explanation for the delay. After a bench trial, the Civil Court, Kings County, found that the provider offered no excuse for its late submission. MVAIC's denial invited written proof of clear and reasonable justification under 11 NYCRR 65-3.3, but the provider submitted nothing before suit. Its later document failed to explain the delay, according to credible claims-examiner testimony. The supervisory-review duty under 11 NYCRR 65-3.5 therefore never arose. Judgment was entered for MVAIC and the complaint dismissed.
Trial court, Second Department
Nov 6, 2007
2007 NY Slip Op 27458
Provider prevailed
The insurer failed to prove timely mailing of verification requests or lack of medical necessity for the prescribed equipment. After a bench trial, the Civil Court, Kings County, found that the insurer's payment-or-denial period was never tolled because no evidence established timely mailing of verification requests. The court applied the 30-day medical-examination period in 11 NYCRR 65-3.5 (d) to EUOs but denied the provider's scheduling motion because receipt-date evidence was missing. Alternatively, the peer review physician's preference against recommending the equipment did not establish lack of medical necessity, particularly where the physician acknowledged it was not contrary to accepted medical protocol. The provider obtained judgment, statutory interest, and attorney fees.
Trial court, Second Department
Nov 2, 2007
2007 NY Slip Op 52475(U)
Provider prevailed
An insurer's late-claim defense is barred without proof that its denial advised the applicant that reasonable justification could excuse delay. The hospital established overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The insurer failed to prove mailing of its denial and, independently, compliance with the mandatory notice in 11 NYCRR 65-3.3 (e). The Supreme Court, Nassau County, granted summary judgment and attorney fees on that claim and denied the insurers' cross motion. It denied the hospital's motion on the other assignor's claim without prejudice to renewal because the represented settlement had not been established.
Trial court, Second Department
Nov 1, 2007
2007 NY Slip Op 27549
Insurer prevailed
The provider failed to establish its prima facie case at trial through the insurer's qualified admissions and unauthenticated documents. At a trial de novo, neither party presented a witness. The insurer admitted receiving materials but expressly reserved objections to their validity. Its admissions referred to bills attached to the summons and complaint, although the court file contained only a provider-generated computer printout. The District Court, Suffolk County, distinguished authorities involving unqualified judicial admissions and required compliance with the rules for introducing business records. It denied the provider's motion for judgment and granted the insurer's motion to dismiss the complaint.
