Appellate Division, Second Department
Mar 31, 2009
2009 NY Slip Op 02589
Provider prevailed
The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim. The Appellate Division, Second Department, reversed the order and granted the provider's summary judgment motion. The provider proved mailing and receipt of its billing forms and failure to pay or deny within 30 days under Insurance Law § 5106 (a). The investigation letters did not toll that period under 11 NYCRR 65-3.5 (a), and the completed hospital facility form substituted for a no-fault application under 11 NYCRR 65-3.5 (g). The investigator's hearsay did not raise a factual issue concerning workers' compensation coverage; a possible offset was not a lack-of-coverage defense. The alleged EUO nonappearance neither defeated recovery nor tolled the period, and that defense was precluded.
Appellate Division, Second Department
Mar 17, 2009
2009 NY Slip Op 01979
Insurer prevailed
The insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment. The Appellate Division, Second Department, reversed the judgment, insofar as appealed from, and denied summary judgment on the provider's first cause of action. Although the insurer neither paid nor denied within 30 days of receiving the claim, it demonstrated a timely additional verification request under 11 NYCRR 65-3.5 (b) and a timely denial measured from receipt of verification under 11 NYCRR 65-3.8 (b). The verification allegedly revealed workers' compensation eligibility. The court declined to award the insurer summary judgment or refer the matter to the Workers' Compensation Board because the insurer lacked competent admissible evidence supporting that contention.
Appellate Term, Second Department
Mar 19, 2009
2009 NY Slip Op 52690(U)
Insurer prevailed
The insurer's submissions supported a founded belief that the alleged injuries did not arise out of an insured incident. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion on that ground. Contrary to the District Court's conclusion, the provider established its prima facie entitlement by proving submission of claim forms and overdue payment under Insurance Law § 5106 (a), with an affidavit establishing admissibility under CPLR 4518. The insurer nevertheless opposed payment on the ground that the incident was a staged loss. Its submissions sufficiently demonstrated a founded belief of lack of coverage under Central Gen. Hosp. v Chubb Group of Ins. Cos., defeating the provider's motion.
Appellate Term, Second Department
Mar 19, 2009
2009 NY Slip Op 52691(U)
Split result
The medical provider's summary judgment motion was premature because discovery concerning fraudulent incorporation remained outstanding. The Appellate Term, Second Department, modified the order to grant summary judgment on the acupuncture and chiropractic providers' claims while leaving the medical provider's claims pending. Under CPLR 3212 (f), information essential to the insurer's eligibility defense under 11 NYCRR 65-3.16 (a) (12) and Mallela remained within the medical provider's possession. The other providers established overdue claims through admissible billing records. The insurer's EUO nonappearance denials conflicted with its allegation that the assignor appeared, its EUO transcript was inadmissible, and its medical necessity defense lacked support. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a) and further proceedings on the remaining claims.
Appellate Term, Second Department
Mar 17, 2009
2009 NY Slip Op 50491(U)
Insurer prevailed
The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The insurer established timely mailing of its denial through evidence of a standard office procedure designed to ensure proper addressing and mailing. The provider could not challenge the reliability of medical records and reports it had prepared. The peer reviewer's reliance on reports from other providers did not itself make the opinion insufficient: under Wagman v Bradshaw, an expert may rely on out-of-court material when reliability is established. The insurer therefore prevailed on its medical-necessity defense.
Appellate Term, Second Department
Mar 17, 2009
2009 NY Slip Op 50493(U)
Provider prevailed
The insurer's evidence failed to establish a founded belief that the assignor's injuries arose from a staged accident. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment. The staged-accident defense was pleaded with particularity, but the investigator's affidavit, EUO testimony, and adverse driver's unsworn statement were insufficient to defeat the motion. The insurer also asserted that the assignor's failure to supply personal income tax returns breached a coverage condition. Because those returns contained broader private information than needed to substantiate lost wages, and more focused means were available, the insurer failed to show special circumstances warranting production. The court left open whether CPLR 3016 (b) governed the staged-accident defense and whether withholding the returns breached a condition precedent.
Appellate Term, Second Department
Mar 16, 2009
2009 NY Slip Op 50456(U)
Split result
The provider won summary judgment on its first cause of action because the insurer failed to prove mailing of IME requests or nonappearance. The Appellate Term, Second Department, modified the order to grant that relief, affirmed dismissal of the second cause of action as premature, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). The provider's corporate-officer affidavit established admissible claim forms under CPLR 4518 and its prima facie entitlement to payment. For the second cause of action, the insurer proved timely mailing of verification and follow-up requests, and the provider did not show that it supplied the requested verification. For the first, the scheduling company's affidavit did not establish mailing of IME requests or the assignor's nonappearance.
Appellate Term, Second Department
Mar 12, 2009
2009 NY Slip Op 50441(U)
Provider prevailed
The provider's physician affidavit raised a triable issue of medical necessity sufficient to defeat the insurer's cross motion for summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion to dismiss the complaint. The insurer's claims-examiner affidavit, affirmed peer review report, and physician affidavit established prima facie that the claims had been properly and timely denied for lack of medical necessity. In response, the provider submitted a physician's affidavit disagreeing with the insurer's medical submissions and concluding that the supplies were medically necessary. That competing medical opinion created an issue of fact. The denial of the provider's own summary judgment motion was not at issue on the appeal.
Appellate Term, Second Department
Mar 12, 2009
2009 NY Slip Op 50440(U)
Insurer prevailed
The provider failed to show compliance with the 24-hour hit-and-run reporting requirement or an excuse, defeating coverage through MVAIC. The assignor was a pedestrian injured in a hit-and-run accident. Under Insurance Law § 5221 (b) (2), covered-person status required compliance with applicable requirements of Insurance Law article 52, including the accident-report requirement in Insurance Law § 5208 (a) (2) (A). Neither side's papers indicated compliance, and the provider offered no showing under Insurance Law § 5208 (a) (2) (B) that timely reporting was not reasonably possible or occurred as soon as reasonably possible. MVAIC's failure to establish timely denial did not preclude its coverage defense. The Appellate Term, Second Department, reversed and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 10, 2009
2009 NY Slip Op 29109
Insurer prevailed
New Jersey law governed the claim because the insurance contract and relevant residence and vehicle contacts centered in that state. Although the accident occurred in New York, the policy was negotiated and entered into in New Jersey, the insureds and assignor lived there, and the vehicle was registered and garaged there. Applying the contract conflicts "center of gravity" analysis, the Appellate Term, Second Department, found no overriding governmental policy favoring New York law. New Jersey permitted the insurer to raise lack of medical necessity at any time, so that defense was not precluded and raised a triable factual issue. The order, insofar as appealed from, denying the provider's summary judgment motion was affirmed.
Appellate Term, Second Department
Mar 10, 2009
2009 NY Slip Op 50436(U)
Insurer prevailed
The provider's trial witnesses failed to establish a business-record foundation for its bill under CPLR 4518. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The provider offered its file clerk's testimony and, after a hearsay objection, called the insurer's litigation specialist, who acknowledged receipt of the bill. Neither witness demonstrated sufficient personal knowledge to establish the bill's admissibility as a business record. The bill was therefore excluded, and the provider failed to make a prima facie case. The insurer rested without presenting witnesses and obtained a directed verdict; the appellate court reached no other issue.
Appellate Term, Second Department
Mar 10, 2009
2009 NY Slip Op 50437(U)
Insurer prevailed
The provider failed to prove its prima facie case at trial because its witness could not establish a business-record foundation for the claim forms. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The witness had worked for the provider when the services were allegedly rendered, recognized the documents as psychological-service bills, and saw similar documents daily, but was not involved in insurance billing. That testimony did not demonstrate sufficient personal knowledge of the provider's office practices and procedures to authenticate the forms as business records. The provider called no additional foundation witness before resting, leaving its claims unsupported by admissible evidence; the court reached no other issue.
Appellate Term, Second Department
Mar 10, 2009
2009 NY Slip Op 50438(U)
Provider prevailed
The insurer failed to submit admissible proof that IME requests were timely mailed or that the assignor failed to appear. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). The insurer's denial forms and claims-representative affidavit conceded receipt of the claims, curing any deficiency in the provider's proof of mailing. The provider's billing-manager affidavit established the claim forms' admissibility under CPLR 4518. Although the insurer asserted timely denials based on two missed IMEs, its evidence did not establish the scheduling and nonappearance defense in admissible form; the court reached no other issue.
Appellate Term, Second Department
Mar 5, 2009
2009 NY Slip Op 50389(U)
Insurer prevailed
The provider failed to establish its prima facie case at trial because it did not establish the admissibility of its claim forms as business records. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The provider called no witnesses and instead sought to rely on its notice to admit, the insurer's response, and exhibits submitted on an earlier summary judgment motion and in opposition. The insurer objected and sought a directed verdict. Following Bajaj v General Assur. Co., the court concluded that the provider still bore the trial burden of presenting admissible claim forms and had failed to lay the necessary foundation. The insurer was therefore entitled to dismissal.
Trial court, Second Department
Mar 31, 2009
2009 NY Slip Op 29139
Provider prevailed
A provider need not supply verification materials outside its possession, custody or control after advising the insurer that it lacks them. The equipment provider responded to requests for referring physicians' medical-necessity reports by stating that it had no such records and directing the insurer to the medical providers. The Civil Court, Kings County, granted the provider summary judgment and denied the insurer's cross motion. Even assuming valid verification demands, the responses defeated the claimed toll of the payment-or-denial period under Insurance Law § 5106 (a). Reading 11 NYCRR 65-3.5 (c) consistently with prompt payment and drawing an analogy to CPLR 3120 (1) (i), the court rejected an obligation to produce uncontrolled records. The insurer could have requested the reports directly from the referring physicians identified on the claims.
Trial court, Second Department
Mar 26, 2009
2009 NY Slip Op 50509(U)
Insurer prevailed
MVAIC's failure to pay or deny within 30 days does not preclude a defense that other insurance is available. An arbitrator awarded benefits after treating MVAIC's coverage defense as untimely, and a master arbitrator affirmed. The Supreme Court, Queens County, found that the injured claimant was qualified under Insurance Law § 5202 and had satisfied Insurance Law § 5208. Although 11 NYCRR 65-3.8 (a) (1) applied to MVAIC, lack of coverage remained available under Central Gen. Hosp. v Chubb Group of Ins. Cos. Because the provider and claimant knew the adverse vehicle's owner and insurer, they had to exhaust remedies against them. The court granted MVAIC's motion under CPLR 7511, vacated the award, and remanded for a hearing on other available insurance.
Trial court, Second Department
Mar 25, 2009
2009 NY Slip Op 50784(U)
Split result
The injured claimant's punitive-damages demand failed, but the record supported a potentially viable claim for compensatory damages. The insurer sought summary judgment limiting recovery to policy benefits after refusing payment for shoulder surgery and closing its file for further orthopedic expenses. The Supreme Court, Suffolk County, dismissed punitive damages because the complaint and submissions did not support the requisite wanton dishonesty or misconduct directed at the public under Rocanova v Equitable Life Assurance Society. Following Bi-Economy Market, Inc. v Harleysville Ins. Co. of New York, it found a possible breach of good faith and fair dealing. It denied dismissal of extra-contractual and compensatory damages with leave to renew after discovery and filing of the note of issue, and restricted discovery to persons involved in the litigation.
Trial court, Second Department
Mar 25, 2009
2009 NY Slip Op 50511(U)
Insurer prevailed
The insurer's default was vacated upon a reasonable excuse for its short delay and a meritorious defense that the assignor lacked coverage. The Supreme Court, Nassau County, granted the insurer's motion and deemed its proposed answer served. An employee had misindexed the summons and complaint, delaying their delivery to the office responsible for responsive pleadings. The court accepted that explanation, found the default nonwillful, and found no prejudice to the provider. The insurer supported its coverage defense with evidence that the policy insured other vehicles and that the assignor did not reside in the insured's household. The court found the showing sufficient to permit the action to proceed on the merits.
Trial court, Second Department
Mar 23, 2009
2009 NY Slip Op 29225
Insurer prevailed
The insurer obtained relief from no-fault interest on claims submitted before its exit from rehabilitation under its rehabilitation plan. A provider sued after rehabilitation ended, seeking payments due earlier and interest under Insurance Law § 5106 (a) because denials were untimely. The Supreme Court, Nassau County, granted renewal and modification under CPLR 2221 to clarify the rehabilitation order. The approved plan under Insurance Law article 74 made no provision for interest, and paying it would conflict with the plan and the Superintendent of Insurance's policies. The court also granted relief from timely-denial requirements under 11 NYCRR 65-3.8 for claims received or adjusted during rehabilitation. The insurer withdrew its request to dismiss actions and arbitrations brought during rehabilitation.
Trial court, Second Department
Mar 17, 2009
2009 NY Slip Op 50764(U)
Provider prevailed
The insurer waived objections to hospital claim forms through untimely verification requests, and both hospitals obtained summary judgment. The Supreme Court, Nassau County, granted the hospitals' motion on both causes of action and denied the insurer's cross motion asserting prematurity. Billing affidavits established personal knowledge of the accounts and certified mailing. The insurer requested verification on May 15 after April 18 receipt and on July 16 after June 16 receipt. The older NF-5 forms contained substantially the same information as revised forms under 11 NYCRR 65-3.5 (f), and objections to signatures marked "on file" were untimely. The claims remained unpaid beyond 30 days, entitling the hospitals to interest and attorney fees under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (e).
Trial court, Second Department
Mar 6, 2009
2009 NY Slip Op 50459(U)
Insurer prevailed
The insurer proved proper grounds for reimbursing a licensed acupuncturist at the chiropractic rate under the Workers' Compensation Fee Schedule. The Civil Court, Kings County, entered judgment for the insurer and dismissed the complaint after a bench trial. The parties stipulated to the provider's prima facie case and timely denials. The insurer's claims representative explained that the schedule did not address licensed acupuncturists and that the insurer selected chiropractic rates by comparing educational and licensing requirements. Although the witness had not issued the denials, the witness testified that they were processed under the insurer's policies and procedures. Following Great Wall Acupuncture v Geico Gen. Ins. Co. and Ava Acupuncture v Geico Gen. Ins. Co., the court found the defense unrebutted.
Trial court, Second Department
Mar 5, 2009
2009 NY Slip Op 29100
Insurer prevailed
An insurer's preclaim EUO requests are not subject to the verification rule requiring notice to the assignor's attorney. The Civil Court, Richmond County, granted the insurer summary judgment based on the assignor's EUO nonappearance and a timely denial. The initial and follow-up scheduling letters preceded receipt of the provider's bill. The insurer's right to request those EUOs arose from the policy endorsement under 11 NYCRR 65-1.1 (d), independently of postclaim verification procedures, so attorney notification under 11 NYCRR 65-3.6 (b) was unnecessary. Following Stephen Fogel Psychological, nonappearance breached a condition precedent and permitted retroactive denial. The insurer established mailing procedures and personal knowledge of the mailings and nonappearance, and proved that it timely denied the claim under Insurance Law § 5106 (a).
