Appellate Division, Second Department
Oct 15, 2014
2014 NY Slip Op 06954
Provider prevailed
The insurer failed to establish prematurity because the hospital responded to verification and the requests' propriety remained disputed. The hospital supplied treatment records it said it could release and explained that it lacked prior records and surgical photographs and lacked authority to release MRI films. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment cross motion as premature. Although unanswered verification requests can prevent the 30-day payment period from running, the hospital had responded concerning records in its possession that it alleged it was authorized to release. Factual issues remained whether requested items existed or were held by the hospital or assignor. Those issues also foreclosed the hospital's request for summary judgment upon a search of the record.
Appellate Division, First Department
Oct 14, 2014
2014 NY Slip Op 06892
The loss-transfer awards rationally allowed recovery despite the adverse insurer's noncooperation disclaimer. The petitioning workers' compensation carrier paid benefits in lieu of no-fault benefits and sought reimbursement through compulsory arbitration under Insurance Law § 5105. The Appellate Division, First Department, affirmed the judgment confirming two awards in its favor. The arbitrators rationally construed Insurance Law § 5105 (a), with § 5102 (j), to confer a direct recovery right against a tortfeasor's insurer whose policy was in effect at the accident, separate from the insured's rights to defense and indemnification. The adverse insurer waived an arbitral-jurisdiction challenge by participating without seeking a stay or raising it below. Its policy-limits argument was not raised before the arbitrators and was also unavailing.
Appellate Term, Second Department
Oct 29, 2014
2014 NY Slip Op 51586(U)
Provider prevailed
The insurer's claims analyst affidavit was inadmissible because the notary failed to attest to personal appearance and identity. The Civil Court, Kings County, denied the insurer summary judgment in the provider's assigned no-fault action because the out-of-state affidavit lacked a certificate of conformity. The Appellate Term, Second Department, explained that this defect under CPLR 2309 (c) was not fatal and could be corrected nunc pro tunc or disregarded under CPLR 2001. Nevertheless, the notary had not stated that the analyst personally appeared and was personally known or satisfactorily identified. The appellate court therefore declined to consider the document's factual assertions and affirmed denial of the insurer's motion on that different ground.
Appellate Term, First Department
Oct 22, 2014
2014 NY Slip Op 51515(U)
Insurer prevailed
An assignor's failure to attend a duly scheduled IME permits denial of all claims from the date of loss despite late denials or earlier grounds. The insurer established timely, proper mailing of IME notices to the assignor and counsel, and nonappearance through sworn affidavits from the scheduled chiropractor and an employee of the third-party IME scheduler describing personal knowledge of office practices when an assignor fails to appear. The provider neither specifically denied nonappearance nor raised a triable issue about mailing or the notices' reasonableness. Applying American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order and granted the insurer's summary judgment motion dismissing the complaint.
Appellate Term, First Department
Oct 22, 2014
2014 NY Slip Op 51518(U)
Split result
The insurer established its fee schedule defense to one claim but failed to address the provider's separate remaining claim. Its affidavits and documentary evidence showed timely denial of the claim for the difference between the provider's acupuncture charges and payment under the applicable workers' compensation fee schedule. The provider raised no triable issue concerning mailing of that denial or the fee calculation, so dismissal of the excess-charge claim was proper. The insurer's motion papers did not address the validity of the other claim. The Appellate Term, First Department, modified the order to reinstate that separate claim and otherwise affirmed, preserving the insurer's summary judgment on the fee schedule claim.
Appellate Term, First Department
Oct 22, 2014
2014 NY Slip Op 51520(U)
Provider prevailed
The insurer failed to prove mailing of its denial through an affidavit describing a nonparty insurer's mailing practices. The affiant, identified as the nonparty's mailroom representative, neither stated that the denial was actually mailed to the provider nor described the defendant insurer's office mailing procedures. The moving papers also showed no jural relationship between the insurer and the nonparty. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied its motion, and reinstated the complaint. The court expressly left open whether purported mailing to the individual treating acupuncturist rather than the employing professional corporation was proper under 11 NYCRR 65-3.8 (c).
Trial court, Second Department
Oct 17, 2014
2014 NY Slip Op 51500(U)
Provider prevailed
The insurer was collaterally estopped from asserting EUO nonappearance because arbitration had resolved that issue against it. The District Court, Nassau County, found the insurer's proof established the EUO defense under 11 NYCRR 65-1.1, but a prior award, affirmed by a master arbitrator, found that the assignor's credible efforts to appear had been ignored. Res judicata did not apply because the arbitrated claims differed; collateral estoppel barred relitigation of the identical EUO issue. The provider conceded fee-schedule reductions under Ground Rule 11 for 74 claims, rendering that defense moot. The court denied the insurer's summary judgment motion and granted the provider's cross motion for the reduced claims and 14 additional claims admittedly unpaid and undenied within 30 days.
Trial court, Second Department
Oct 5, 2014
2014 NY Slip Op 24317
Insurer prevailed
The insurer's EUO no-show denial was timely within the shortened period resulting from its late additional verification request. The insurer requested the provider's EUO 19 business days after completing the assignor's EUO, exceeding the 15-business-day limit under 11 NYCRR 65-3.5 (b). The Civil Court, Kings County, held that compliance with verification deadlines was required to invoke Unitrin's permission to deny beyond 30 days. The late request forfeited that benefit and, under 11 NYCRR 65-3.8 (l), reduced the denial period by four days. Nevertheless, the insurer denied within the resulting 26-day period after the provider's second nonappearance. The court granted the insurer's summary judgment motion and denied the provider's cross motion.
Trial court, Second Department
Oct 1, 2014
2014 NY Slip Op 24298
Split result
The provider's timely, specific objections raised factual issues about the reasonableness of the insurer's EUO requests. Before the scheduled EUOs, the provider sought clarification whether document production would suffice and later objected to appearing. The record did not establish whether the insurer responded. The Civil Court, Kings County, granted the insurer's summary judgment motion only to the extent of establishing timely and proper EUO notices, nonappearance and timely denials, which the provider did not contest. Unlike objections first raised after suit, these letters preserved the reasonableness challenge. The matter was to proceed to trial on the provider's prima facie case and the reasonableness of the requests, including whether an unanswered objection excused nonappearance.
