Appellate Term, First Department
Sep 21, 2010
2010 NY Slip Op 51638(U)
Insurer prevailed
The insurer established that a Louisiana pedestrian accident did not arise from an insured incident through admissible claims-log evidence. At a nonjury trial, the only disputed issue was coverage for radiology services. The insurer's underwriter properly relied on a claims log qualifying as a business record; a witness with personal knowledge of the accident was unnecessary. Naming the assignor as the insured on the provider's claim form did not require an exhaustive search for coverage. Although Insurance Law § 5106 (d) permits multiple insurers to owe benefits, the claimant must initially supply sufficient NF-2 information to determine insured status. The Appellate Term, First Department, reversed the provider's judgment and directed dismissal of the complaint.
Appellate Term, First Department
Sep 17, 2010
2010 NY Slip Op 51606(U)
Provider prevailed
MVAIC failed to support its lack-of-coverage defense and was not exempt from statutory interest and attorney's fees under Insurance Law § 5225. The provider established mailing and receipt of the prescribed billing form and overdue payment; its employee's mailing-procedure affidavit created a presumption of mailing, and MVAIC acknowledged receipt. MVAIC bore the burden on its defense under Insurance Law § 5221 (b) but offered no competent evidence to raise a triable issue. Section 5225 exempts MVAIC only from certain governmental taxes and fees, not statutory interest, attorney's fees, or costs. The Appellate Term, First Department, affirmed the judgment awarding benefits on summary judgment; MVAIC's remaining contentions were unpreserved and, alternatively, meritless.
Trial court, Second Department
Sep 24, 2010
2010 NY Slip Op 20404
Insurer prevailed
A medical expert may challenge electrodiagnostic tests ordered by a chiropractor upon showing familiarity with the applicable testing standards. During a no-fault trial, the provider sought to preclude the insurer's internal-medicine expert from testifying about medical necessity. The District Court, Nassau County, denied that motion because the expert's training and experience established sufficient knowledge of generally accepted standards for prescribing and performing electrodiagnostic testing. The provider offered no rebuttal proof that those standards differed for chiropractors. Any claimed unfamiliarity with chiropractic standards affected the testimony's weight rather than admissibility. The court directed the trial to continue and reserved all other issues, including the persuasive weight of the expert's proof.
