Appellate Term, First Department
Jan 18, 2008
2008 NY Slip Op 50118(U)
Insurer prevailed
The insurer's NF-10 forms sufficiently stated the factual basis for denial by identifying an independent consultant's review. In the provider's action for first-party no-fault benefits, the Civil Court had granted a pretrial motion to preclude those forms and directed judgment for the provider. Applying 11 NYCRR 65-3.8 (b) (4), the Appellate Term, First Department, reversed the order, denied the provider's motion to preclude, and remanded for further proceedings.
Appellate Term, Second Department
Jan 8, 2008
2008 NY Slip Op 50089(U)
Insurer prevailed
A no-fault arbitrator may raise any issue the arbitrator deems relevant under 11 NYCRR 65-4.4 (e) and 65-4.5 (o). The Appellate Term, Second Department, reversed the judgment vacating the master arbitrator's award, denied the provider's petition and directed confirmation in MVAIC's favor. The master arbitrator rationally upheld the finding that the submitted documents failed to establish a prima facie case of medical necessity. Because the provider omitted MVAIC's denial forms from its petition, the record did not establish reliance on a precluded defense. CPLR 7511 (e) required automatic confirmation upon denial of vacatur, making MVAIC's cross petition under CPLR 7510 unnecessary; the court reached no other issue.
Appellate Term, Second Department
Jan 8, 2008
2008 NY Slip Op 50090(U)
Insurer prevailed
A no-fault arbitrator may raise any issue the arbitrator deems relevant under 11 NYCRR 65-4.4 (e) and 65-4.5 (o). The provider sought to vacate a master arbitrator's award denying assigned benefits. The master arbitrator found a rational basis in the submitted documents for denying recovery because, among other things, the provider may have sought payment for work performed by an independent contractor. The Appellate Term, Second Department, found that determination neither arbitrary, capricious nor irrational and upheld denial of the petition. It modified the judgment to confirm the award, as required by CPLR 7511 (e) upon denial of vacatur.
Appellate Term, Second Department
Jan 4, 2008
2008 NY Slip Op 50087(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not lay a business-records foundation. The provider moved for summary judgment on assigned no-fault claims, submitting counsel's affirmation, an officer's affidavit and supporting documents. The affidavit described the documents as business records in conclusory terms without establishing the officer's personal knowledge of the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion on that ground.
Trial court, Second Department
Jan 29, 2008
2008 NY Slip Op 50639(U)
Split result
An insurer's provider-fraud defense is precluded by an untimely denial, but fraud and unjust-enrichment counterclaims may proceed. The Supreme Court, Nassau County, granted the providers summary judgment on two claims under CPLR 3212 because the insurer failed to pay or deny them within 30 days. Under Insurance Law § 5106 (a), 11 NYCRR 65-3.8 and Fair Price Supply Corp. v Travelers Indemnity Co., allegations of unnecessary or unperformed services did not concern coverage's initial existence. Expert evidence raised triable fraud issues, defeating dismissal of counterclaims to recover paid benefits; entry of judgment awaited resolution of all claims. The insurer's CPLR 3126 request to strike pleadings and alternative request to dismiss interest claims were denied, with leave to seek an adverse inference and serve proper discovery demands.
Trial court, First Department
Jan 28, 2008
2008 NY Slip Op 50162(U)
Insurer prevailed
The provider failed to establish its trial prima facie case because it omitted the documents identified as attached to its notice to admit. Neither side called witnesses; the provider relied on the pleadings, notice and insurer's responses. The Civil Court, Bronx County, found the requests proper and the insurer's blanket objections unauthorized under CPLR 3123 (a); objections to improper requests required a protective order under CPLR 3103, although the court still had to examine propriety. The missing attachments nevertheless defeated the provider's proof. The court noted an apparent interdepartmental split and suggested that admissions alone could otherwise suffice in the First Department. It granted the insurer's directed-verdict motion and dismissed the complaint.
Trial court, Second Department
Jan 21, 2008
2008 NY Slip Op 50546(U)
Split result
The insurer's untimely denial precluded its workers' compensation defense to one hospital claim, but two other claims remained unresolved. The Supreme Court, Nassau County, granted summary judgment on the first claim with statutory interest and attorney fees under Insurance Law § 5106 (a), applying the preclusion rule in 11 NYCRR 65.15 (g) (3). It denied summary judgment on the second claim because the insurer's prompt denial for failure to give written accident notice within 30 days raised a factual issue. On the third claim, verification was supplied after two requests, and the insurer denied within 30 days of receipt. The hospital failed to address those communications, defeating its untimely-denial argument.
Trial court, Second Department
Jan 18, 2008
2008 NY Slip Op 50113(U)
Split result
An insurer denying a health-service claim in full must use the prescribed NF-10 form; approved modified forms are limited to partial denials. The District Court, Nassau County, denied both parties' summary judgment motions. The provider lacked a business-record foundation under CPLR 4518 and could not supply substantive proof for the first time in reply through CPLR 2001. The insurer failed to submit the denial's second page or establish approval of the form used after regulatory revisions. Under 11 NYCRR 65-3.8 (c) (1), even an approved modification could not support a complete denial. Entries indicating a partial denial conflicted with entries denying the entire bill. Timeliness was conceded, and the court expressly declined to address medical necessity.
Trial court, Second Department
Jan 10, 2008
2008 NY Slip Op 50101(U)
Provider prevailed
Attorney's fees under 11 NYCRR 65-4.6 (e) are calculated separately for each bill, subject to an $850 cap per claim. After the parties settled 15 claims for benefits, interest and costs, they disputed whether fees should be calculated on the aggregate recovery or separately for each bill. The District Court, Suffolk County, adopted the provider's position and directed submission of a proposed judgment calculating fees at 20 percent of the settlement amount for each claim. Relying on per-claim authorities, the court declined to follow the Insurance Department opinion favoring aggregation.
Trial court, Second Department
Jan 3, 2008
2008 NY Slip Op 25000
Provider prevailed
A no-fault claim against a self-insured motor vehicle rental company is subject to a six-year statute of limitations. The District Court, Nassau County, denied the insurer's motion under CPLR 3211 (a) (5) to dismiss the provider's action as untimely. The insurer failed to establish that it was self-insured; its submissions instead showed that it insured the rental company's vehicles. Alternatively, the court held that CPLR 213 (2), rather than CPLR 214 (2), governed even if the insurer were self-insured. A self-insured rental company's obligation to pay benefits under Insurance Law § 5103 was rooted in the rental contract and equivalent to an insurer's contractual obligation, unlike MVAIC's statutory liability.
