Appellate Division, Second Department
Jun 28, 2011
2011 NY Slip Op 05680
Split result
The insurer raised factual issues about policy exhaustion during a verification toll and payment with overdue interest before suit. The providers established a prima facie case by showing receipt of bills and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The Appellate Division, Second Department, modified the order to deny the providers' motion and affirmed denial of the insurer's cross motion. One claim presented a dispute over exhaustion through payment for prior services; the other concerned payment with interest before commencement. Renewal of the insurer's cross motion was denied under CPLR 2221 (e) (3) for lack of reasonable justification for withholding new facts; renewal of its opposition became academic.
Appellate Division, Second Department
Jun 28, 2011
2011 NY Slip Op 05679
Insurer prevailed
The insurer raised a triable issue as to whether it issued a denial of claim form to the hospital. The hospital sought summary judgment on the fourth cause of action for no-fault medical payments. It established a prima facie case by demonstrating mailing and receipt of the billing forms and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. The Appellate Division, Second Department, reversed the order granting the hospital's motion and denied summary judgment because the insurer's opposition raised a factual dispute over issuance of the denial.
Appellate Division, Second Department
Jun 28, 2011
2011 NY Slip Op 05684
A counterclaim against a subrogated insurer may offset the insurer's claim but cannot support an affirmative recovery. The insurer sought voluntary discontinuance under CPLR 3217 (b) of actions seeking reimbursement of property damage, no-fault and uninsured motorist benefits, and dismissal of a property damage counterclaim. The Appellate Division, Second Department, reversed the order, insofar as appealed from, dismissed the counterclaim and denied the defendants' request for sanctions and attorney fees. Discontinuance eliminated the claim against which the counterclaim could operate. The defendants failed to establish frivolous conduct under 22 NYCRR 130-1.1 (c) or bad faith under CPLR 8303-a (c) (i). The required written explanation under 22 NYCRR 130-1.2 was also absent.
Appellate Term, Second Department
Jun 30, 2011
2011 NY Slip Op 51230(U)
Insurer prevailed
The insurer established lack of medical necessity on two claims and the assignor's IME nonappearance on the third. For the first and third causes of action, timely denials and affirmed peer reviews supplied a factual basis and medical rationale for denying the services. The provider offered no rebutting medical affirmation, and its unexplained assertion that a reviewer's signature was stamped raised no factual issue concerning admissibility under CPLR 2106. For the second cause of action, affidavits established mailing of IME notices, nonappearance, and timely denial. Under 11 NYCRR 65-1.1, IME attendance was a condition precedent to liability. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the entire complaint.
Appellate Term, Second Department
Jun 30, 2011
2011 NY Slip Op 51231(U)
Insurer prevailed
A charge against a driver under Vehicle and Traffic Law § 319 (1) does not establish that the vehicle was uninsured. The provider and its assignor knew the identity of the owner of the vehicle alleged to have struck the assignor. The provider therefore had to exhaust remedies against that owner before seeking no-fault benefits from MVAIC, but did not demonstrate exhaustion. Deeming the appeal taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Jun 30, 2011
2011 NY Slip Op 51228(U)
Provider prevailed
MVAIC's appeal from the judgment was dismissed because the issues could have been raised on its prior appeal dismissed for failure to prosecute. The Civil Court had granted the provider summary judgment and denied MVAIC's cross motion to dismiss. MVAIC failed to perfect its appeal from that order, then appealed from the resulting judgment. Following Rubeo v National Grange Mut. Ins. Co. and Bray v Cox, the Appellate Term, Second Department, treated the prior dismissal as an adjudication on the merits of reviewable issues and declined to exercise its inherent jurisdiction to consider them again.
Appellate Term, Second Department
Jun 30, 2011
2011 NY Slip Op 51229(U)
Split result
The insurer established IME nonappearance but failed to show tolling of the denial period for its fee-schedule reductions. The provider sought unpaid acupuncture benefits, and the insurer moved for summary judgment. The insurer proved timely mailing of IME notices and denials and the assignor's nonappearance. Under 11 NYCRR 65-1.1, attendance was a condition precedent to liability, allowing denial retroactively to the date of loss. However, letters advising that processing was delayed pending an EUO did not toll the 30-day payment-or-denial period under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5 (a). The Appellate Term, Second Department, modified the order to dismiss the five claims denied for IME nonappearance and otherwise affirmed denial of summary judgment on the unpaid portions of the remaining bills.
Appellate Term, Second Department
Jun 28, 2011
2011 NY Slip Op 51221(U)
Split result
The provider failed to establish summary judgment entitlement, and the insurer's fraudulent-procurement defense lacked admissible proof. For five claims, the provider proved nonpayment but not that the denials were legally insufficient. For two others, the insurer's mailing affidavit defeated the provider's assertion that it had not received denials. The insurer's cross motion also failed: the assignor's EUO transcript was unsigned and uncertified, and an out-of-state affidavit lacked the certificate of conformity required by CPLR 2309 (c) and Real Property Law § 299-a (1). The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting the provider summary judgment, and denied that motion, leaving undisturbed the implicit denial of the insurer's cross motion.
Appellate Term, Second Department
Jun 15, 2011
2011 NY Slip Op 51127(U)
Insurer prevailed
The insurer's investigator established a founded belief that the alleged injuries did not arise from an insured incident. The provider's billing-manager affidavit established admissibility of the claim documents under CPLR 4518, personal mailing of the claim, and the absence of a denial within 30 days, satisfying its prima facie burden. Under Central General Hospital v Chubb Group of Insurance Cos., failure to deny did not preclude the insurer's lack-of-coverage defense based on a fact or founded belief that the injuries did not arise from an insured incident. The investigator's affidavit raised a triable issue on that defense. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion.
Appellate Term, Second Department
Jun 14, 2011
2011 NY Slip Op 51119(U)
Insurer prevailed
The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity. The insurer's no-fault specialist demonstrated timely initial and follow-up verification requests for one psychological-services claim and the provider's failure to respond. The 30-day payment-or-denial period therefore had not begun. For the other two claims, the insurer established timely denials and submitted sworn peer reviews supplying a factual basis and medical rationale for lack of medical necessity. The provider did not rebut that evidence. The Appellate Term, Second Department, modified the order to grant the insurer's cross motion for summary judgment dismissing the complaint and deny the provider's summary judgment motion and cross motion for a protective order.
Appellate Term, Second Department
Jun 14, 2011
2011 NY Slip Op 51120(U)
Insurer prevailed
An independent contractor who renders the billed services is the provider entitled to assigned no-fault benefits. The plaintiff's claim forms stated that an independent contractor performed the services. Under Rockaway Blvd. Med. P.C. v Progressive Ins., the plaintiff therefore was not entitled to payment. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the statement could not be corrected after litigation began, even if erroneous. The insurer could seek dismissal for failure to state a cause of action after answering under CPLR 3211 (a) (7) and (e), despite an earlier improperly noticed summary judgment cross motion. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss.
Appellate Term, Second Department
Jun 14, 2011
2011 NY Slip Op 51121(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, concluded that the insurer had fully paid the provider the amount due under that schedule. The insurer's claims employee also established timely mailing of the denials through evidence of standard office practices and procedures. The court reversed the order, insofar as appealed from, which had implicitly denied the insurer's cross motion, and granted summary judgment dismissing the provider's complaint for assigned no-fault benefits.
Appellate Term, First Department
Jun 10, 2011
2011 NY Slip Op 51076(U)
New Jersey law barred the workers' compensation insurer's recovery of medical expenses and the first $5,200 in disability payments. The insurer sought subrogation reimbursement from the accident defendant for benefits paid in lieu of no-fault benefits. Although temporary benefits were processed in Maryland, the injured employee obtained a final New Jersey award approving the settlement and treating prior payments as adequate. New Jersey law therefore governed. Under NJSA 39:6A-4, amounts otherwise collectible through standard personal injury protection could not be recovered from the defendant. The Appellate Term, First Department, modified the order to grant partial summary judgment dismissing those claims and otherwise affirmed; entitlement to disability reimbursement above $5,200 under NJSA 39:6A-10 remained open pending a fuller record.
Trial court, Second Department
Jun 29, 2011
2011 NY Slip Op 51187(U)
Provider prevailed
MVAIC's failure to pay or deny after receiving reports and notice that no separate medical necessity letter would be supplied supported the award. The provider furnished the referring neurologist's narrative reports and explained that the neurologist refused to write a separate letter. The Supreme Court, Queens County, found that response made in good faith and held that repeating the same verification request was pointless. MVAIC then had to pay or deny under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), and could deny if it considered medical necessity insufficiently established. Applying compulsory-arbitration review under CPLR 7511 (b) (1) (iii), the court found evidentiary support and a rational basis, denied MVAIC's vacatur petition, confirmed the award, and permitted the provider to enter judgment.
Trial court, Second Department
Jun 29, 2011
2011 NY Slip Op 51348(U)
Split result
The disability policy's contractual limitations provision was unenforceable because it was procedurally and substantively unconscionable. The injured claimant lacked bargaining power over the employer-provided policy, and the provision allowed the insurer to delay denial until the time to sue expired. The Supreme Court, Queens County, granted renewal under CPLR 2221 and leave under CPLR 3025 (b) to add a limitations defense, but denied summary judgment and dismissal under CPLR 3212 and CPLR 3211 (a) (1), (5), and (7). Following Gillman v Chase Manhattan Bank, N.A., it refused to enforce the provision. It also accepted the claimant's allegations that a third-party settlement compensated pain and suffering rather than lost wages, finding a cognizable claim despite the insurer's asserted settlement credit.
Trial court, Second Department
Jun 24, 2011
2011 NY Slip Op 51423(U)
Provider prevailed
The assignor's reflexive actions arose from a covered accident, defeating the insurer's intentional-act defense. The hospital established receipt of its billing forms and the insurer's failure to pay or deny within 30 days under 11 NYCRR 65-3.8 (a) (1). Although the late denial did not preclude a lack-of-coverage defense under Central General Hospital v Chubb Group of Insurance Cos., the assignor's deposition testimony described seeing blood, unfastening the seat belt, panic, and wanting to leave the car. These reflexive actions were unexpected and did not flow directly and immediately from an intended act. The Supreme Court, Nassau County, granted the hospital's motion for summary judgment under CPLR 3212 on the sole remaining claim.
Trial court, Second Department
Jun 16, 2011
2011 NY Slip Op 21210
EUO notices alone do not conclusively establish a nonappearance defense for dismissal under CPLR 3211 (a) (1). The District Court, Nassau County, denied that branch of the insurer's motion and converted the motion to summary judgment under CPLR 3211 (c), allowing additional proof. The provider sought payment for an MRI; the insurer asserted two EUO defaults. Establishing timely mailing, nonappearance, and objective justification under 11 NYCRR 65-3.5 (e) required affidavits beyond the notices. The complaint stated a cognizable no-fault claim without alleging EUO compliance. Nonappearance was an affirmative defense on which the insurer bore the burden, rather than a basis for dismissal under CPLR 3211 (a) (7). The merits of summary judgment remained pending.
Trial court, Fourth Department
Jun 13, 2011
2011 NY Slip Op 51194(U)
Split result
The insurer's orthopedic IME report failed to rebut medical necessity because its conclusion lacked a factual basis and medical rationale. At a nonjury trial conducted on stipulated documents and argument, the City Court of Buffalo dismissed the first, sixty-seventh, and 159th causes of action because the provider offered no proof of claim transmission. For the remaining claims, the parties stipulated to the provider's prima facie case and timely denials, and the court awarded the provider judgment. The orthopedic surgeon was qualified to evaluate chiropractic necessity, but the statement that chiropractic treatment would have no value did not address generally accepted professional standards. Despite a physical examination and extensive report, the opinion was conclusory and insufficient to rebut the presumption of medical necessity.
Trial court, Second Department
Jun 2, 2011
2011 NY Slip Op 50975(U)
Provider prevailed
The insurer failed to prove rate evasion fraud under North Carolina law as a basis for denying the provider's claims. The District Court, Nassau County, granted judgment to the provider after a trial on documentary evidence and stipulated proof of billing and timely denials. Applying the grouping-of-contacts approach, it found North Carolina law governed the policy. The evidence of the assignor's residence and vehicle garaging was equivocal and did not establish ineligibility under NCGS § 58-2-164 and NCGS § 58-37-1. Alternatively, the provider qualified as an innocent third party under NCGS § 58-2-164 (g) (3): that exception protected an assignee treating the insured's injuries, even if the insured had committed rate evasion fraud.
