Appellate Term, Second Department
Mar 27, 2008
2008 NY Slip Op 50709(U)
Provider prevailed
The insurer's trial evidence failed to establish that the assignor's alleged injuries were unrelated to the accident. The nonjury trial concerned only one assignor's claims, and the parties stipulated to the provider's prima facie case and timely denials. The insurer called the assignor and a biomechanics expert. The assignor's testimony supported a finding that the seat belt malfunctioned, while the expert's testimony and report permitted conflicting inferences about restraint and injury causation. The Appellate Term, Second Department, found no basis under a fair interpretation of the evidence to disturb the determination crediting the assignor and affirmed the provider's judgment. The insurer's remaining contentions were unpreserved or without merit.
Appellate Term, First Department
Mar 24, 2008
2008 NY Slip Op 50584(U)
Provider prevailed
The provider raised a factual issue whether its officer, rather than an independent contractor, performed the billed services. The Appellate Term, First Department, affirmed denial of the insurer's motion for summary judgment dismissing the no-fault action. The treating physician's affidavit stated that the physician was the provider's president and sole shareholder, and that the independent-contractor box on the NF-3 claim form had been marked erroneously. That evidence created a triable issue concerning who performed the services.
Appellate Term, First Department
Mar 14, 2008
2008 NY Slip Op 50484(U)
Provider prevailed
The insurers' admission of receipt defeated their challenge to the provider's proof that its no-fault claims were mailed and received. The Appellate Term, First Department, affirmed the judgment for the provider after a nonjury trial. The insurers waived objections to proof of a valid assignment by failing to request verification, following Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. Their excessive-fee defense was also unavailable because they failed to establish timely denials or that excessive fees were a stated ground for denying benefits.
Appellate Term, Second Department
Mar 13, 2008
2008 NY Slip Op 50539(U)
Provider prevailed
A provider's prima facie no-fault showing does not require additional evidence establishing medical necessity. The Appellate Term, Second Department, affirmed a judgment granting the provider's CPLR 7511 petition, vacating the master arbitrator's award and awarding unpaid benefits. Complete proof of the fact and amount of loss, submitted to the insurer with payment overdue, satisfied the provider's initial burden. The master arbitrator irrationally upheld an arbitrator's contrary requirement. Applying compulsory-arbitration review, the majority found the award contrary to settled law. A separate concurrence agreed with the result but questioned applying that heightened review standard to a provider that voluntarily elected arbitration.
Appellate Term, Second Department
Mar 13, 2008
2008 NY Slip Op 50541(U)
Provider prevailed
A provider establishes its prima facie no-fault claim by submitting complete proof of the fact and amount of loss and showing payment is overdue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granting the provider relief under CPLR 7511. The arbitrator required additional evidence substantiating the billed services, contrary to settled law, rendering both the arbitrator's and master arbitrator's awards irrational. Both awards were vacated, and the matter was remitted for rehearing before a different arbitrator. A separate concurrence relied on its concurrence in Metropolitan Radiological Imaging, P.C. v Country-Wide Insurance Company, the companion appeal decided the same day, No. 2006-1670 K C.
Appellate Term, Second Department
Mar 13, 2008
2008 NY Slip Op 50544(U)
Split result
The provider's later action was dismissed because a prior action asserting the same cause of action was pending and had reached discovery. The Appellate Term, Second Department, modified the order to grant the insurer's motion under CPLR 3211 (a) (4), striking the provision that had deemed the earlier Queens County action discontinued. Courts generally defer to the first action filed, and the provider showed no sufficient reason to depart from that approach. The court therefore dismissed the later Kings County complaint. The insurer's separate request under 22 NYCRR part 130 was denied because the provider's conduct did not warrant that relief.
Appellate Term, Second Department
Mar 12, 2008
2008 NY Slip Op 50535(U)
Insurer prevailed
The insurer's detailed peer reviews established lack of medical necessity for the MRIs, and the provider offered no rebuttal. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. The provider's officer conclusorily identified the supporting documents as business records without establishing personal knowledge of the provider's practices and procedures, defeating its prima facie showing. The court also rejected the provider's contention that the NF-10 forms insufficiently explained the denials. The insurer's sworn submissions, including the detailed peer reviews, established its medical-necessity defense as a matter of law.
Appellate Term, Second Department
Mar 12, 2008
2008 NY Slip Op 50534(U)
Insurer prevailed
The insurer's affirmed peer review established that the supplies were medically unnecessary, and the provider submitted no contrary evidence. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint. The insurer established that it timely denied the claim on medical-necessity grounds and supported its defense with the affirmed report. Because the insurer challenged neither below nor on appeal the provider's prima facie case, the court expressly declined to review the lower court's implicit determination on that issue.
Appellate Term, Second Department
Mar 12, 2008
2008 NY Slip Op 50536(U)
The insurer's summary judgment appeal was dismissed as moot after it obtained dismissal of the complaint on reargument. The Appellate Term, Second Department, reviewed an appeal from denial of summary judgment in an assigned no-fault action. The insurer had asserted that outstanding verification tolled its time to pay or deny, making the action premature. A subsequent order granting summary judgment eliminated the live appeal. The court also reminded counsel of the duty to notify the appellate court immediately when an appeal becomes moot, citing 22 NYCRR 670.2 (g).
Appellate Term, Second Department
Mar 10, 2008
2008 NY Slip Op 50525(U)
Insurer prevailed
An insurer need not prove a policy contains the mandatory 45-day claim deadline when an older endorsement could no longer apply. The Appellate Term, Second Department, reversed and granted the insurer partial summary judgment dismissing the first, second and fifth through twelfth causes of action. Under 11 NYCRR 65-1.1 (b) and Insurance Law § 3425 (a) (8), annual policies containing the former 180-day endorsement would have expired by April 2003, before the November 2004 accident. The providers' sole opposition challenged proof that the policy contained the new endorsement. The claims were received more than 45 days after services, timely denials asserted that ground, and the providers offered no admissible evidence of reasonable justification for late submission.
Appellate Term, Second Department
Mar 10, 2008
2008 NY Slip Op 50521(U)
Insurer prevailed
The provider's summary judgment cross motion failed because conflicting medical affirmations raised a triable issue of medical necessity. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's cross motion and denied it. The missing certificate of conformity for the insurer's Connecticut-notarized affidavit was a formal defect under CPLR 2309 (c) and Real Property Law § 299-a (1) that should have been disregarded because the provider did not object. The provider conceded timely denial. Its argument that the IME-based denial was defective for omitting the medical rationale lacked merit, and it conceded that the competing affirmations raised a factual issue; the court did not reach the insurer's remaining contention.
Appellate Term, Second Department
Mar 10, 2008
2008 NY Slip Op 50522(U)
Insurer prevailed
The provider failed to establish entitlement to summary judgment because its officer's affidavit did not authenticate the supporting records. The Appellate Term, Second Department, reversed the order granting the provider's motion and denied summary judgment. The corporate officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to lay a business-record foundation for the documents attached to the motion. Those deficient submissions prevented the provider from making its prima facie showing in the no-fault benefits action.
Appellate Term, Second Department
Mar 10, 2008
2008 NY Slip Op 50524(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit lacked a foundation for the billing records. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion on that ground. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit the attached documents as business records. Although the lower court had relied on verification requests tolling the insurer's payment deadline, the appellate court affirmed on the provider's failure of proof instead.
Appellate Term, Second Department
Mar 7, 2008
2008 NY Slip Op 50519(U)
Split result
The insurer's founded belief that the injuries did not arise from an insured incident defeated the provider's summary judgment motion. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its motion and denied that motion. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's evidence sufficed to raise a coverage issue, but it lacked sufficient admissible proof to establish noncoverage as a matter of law. The insurer's cross motion for summary judgment therefore remained denied, leaving neither party entitled to summary judgment.
Appellate Term, Second Department
Mar 5, 2008
2008 NY Slip Op 50508(U)
Insurer prevailed
The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment. Although claim forms and overdue payment established the provider's prima facie case under Insurance Law § 5106 (a), the reconstruction report and its preparer's sworn affidavit supported a founded belief of noncoverage under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider waived its CPLR 2309 (c) objection to the affidavit by raising it for the first time on appeal. The court did not reach the parties' remaining contentions.
Trial court, Second Department
Mar 26, 2008
2008 NY Slip Op 28109
Insurer prevailed
An insurer's fraudulent incorporation defense is not precluded by an untimely denial because provider eligibility is a statutory prerequisite. The District Court, Nassau County, granted the provider's motion to reargue and renew under CPLR 2221 (d) and (e), but adhered to its determination permitting the insurer to amend its answer, compelling discovery, and effectively striking the notice of trial. Under Mallela and 11 NYCRR 65-3.16 (a) (12), fraudulent incorporation remained a nonwaivable defense despite Fair Price and the 30-day requirement of Insurance Law § 5106 (a). Outstanding document demands rendered the certificate of readiness erroneous. Consolidation was limited to deciding the common fraudulent incorporation defense, without prejudice to severance if that defense failed.
Trial court, Second Department
Mar 21, 2008
2008 NY Slip Op 50629(U)
Split result
An insurer must show good cause for corporate-eligibility verification, while litigation discovery requires materiality and necessity. The Civil Court, Richmond County, denied the insurer's CPLR 3126 dismissal motion and alternative summary judgment motion based on outstanding verification. Under Mallela and 11 NYCRR 65-3.2 (c), delaying payment to investigate eligibility under 11 NYCRR 65-3.16 (a) (12) required conduct tantamount to fraud; the verification requests identified no suspicious conduct. Litigation disclosure instead fell under CPLR 3101 (a). Despite the insurer's failure to justify its demands, the court ordered disclosure of directors', officers', shareholders' and owners' identifying information, but issued a CPLR 3103 (a) protective order against the remaining demands. It expressly declined to decide the provider's challenge to the verification forms' admissibility.
Trial court, Second Department
Mar 19, 2008
2008 NY Slip Op 50753(U)
Provider prevailed
The insurer failed at trial to prove by a preponderance of credible evidence that the collision was staged. The parties stipulated to the provider's prima facie case, and the insurer acknowledged that it had not timely denied the claim. The Civil Court, Queens County, permitted the assignor's testimony denying receipt of treatment solely as evidence bearing on whether the collision was staged. Under Fair Price Med. Supply Corp. v Travelers Indem. Co., nonperformance of billed services could not independently defeat recovery absent a timely denial. Given the weakness of the insurer's investigator's testimony, the non-treatment testimony alone did not establish the coverage defense. The court awarded judgment to the provider with statutory interest and attorney fees.
Trial court, Second Department
Mar 10, 2008
2008 NY Slip Op 50456(U)
Insurer prevailed
The insurer's expert established that MRIs performed less than a month after soft-tissue injuries lacked medical necessity. The Civil Court, Kings County, entered judgment for the insurer and dismissed the provider's complaint after a joint trial of claims involving five assignors. The insurer bore the burdens of production and persuasion and had to show inconsistency with generally accepted medical practices. The court admitted the medical records and peer reviews over the provider's reliability objection because the provider's principals had prepared the underlying records. The expert supplied a factual basis and medical rationale, explaining why conservative treatment should precede MRI testing. The provider relied on cross-examination and failed to refute the testimony or produce rebuttal evidence of medical necessity.
Trial court, Second Department
Mar 6, 2008
2008 NY Slip Op 50750(U)
Insurer prevailed
A notice to admit establishing genuineness does not supply the business-record foundation for a provider's claim forms. The Civil Court, Queens County, awarded judgment to the insurer and dismissed the complaint after neither party called trial witnesses. The provider relied solely on a notice seeking admissions about receipt and nonpayment of claims and the genuineness and contents of attached documents. The court found the notice proper under CPLR 3123 (a) and the insurer's objections insufficient without a protective order. Nevertheless, following Bajaj v General Assurance, it required admissible proof laying a business-record foundation under CPLR 4518. The admissions did not satisfy that burden, so the provider failed to establish its prima facie case.
Trial court, Second Department
Mar 5, 2008
2008 NY Slip Op 50435(U)
Provider prevailed
An insurer defending on medical-necessity grounds must show that the services departed from generally accepted medical or professional practice. The Civil Court, Richmond County, entered judgment for the provider after trial on EMG/NCV testing. The parties stipulated to the provider's prima facie case and timely denial. The insurer's expert asserted that testing would not change treatment, but failed to identify an applicable accepted standard and a departure from it. The treating physician ordered testing after two examinations and unsuccessful conservative treatment. An admitted professional publication supported EMG's diagnostic use for cervical radiculopathy, and the expert acknowledged testing's diagnostic functions. The insurer therefore failed to prove lack of medical necessity.
