Appellate Division, Second Department
Apr 22, 2015
2015 NY Slip Op 03340
Provider prevailed
The insurers failed to establish timely and proper mailing of denials based on missing verification and EUO nonappearance. The Appellate Division, Second Department, reversed the order granting summary judgment in the insurers' declaratory judgment action and denied their motion. The claims representative described an automated mailing system but did not explain how envelopes were correctly addressed or how and when they were transferred to a delivery carrier. The affidavit therefore failed to establish the mailing presumption under Nassau Ins. Co. v Murray. This failure required denial regardless of the provider's opposition; the provider's remaining contentions became academic.
Appellate Term, First Department
Apr 29, 2015
2015 NY Slip Op 50645(U)
Provider prevailed
The insurer failed to establish that the assignor lacked innocent-third-party protection under the rescinded Pennsylvania policy. Although the insurer showed proper rescission under Pennsylvania law for the insured's application misrepresentations, it did not show that the injured assignor was not an innocent third party entitled to policy protection. Its collateral-estoppel argument based on a Pennsylvania rescission order was raised for the first time on appeal. In any event, the provider was not a party to that action and had no full and fair opportunity to contest its issues. Although the assignor was a party, the insurer did not establish privity when that action commenced. The Appellate Term, First Department, affirmed denial of the insurer's summary judgment motion.
Appellate Term, First Department
Apr 21, 2015
2015 NY Slip Op 50565(U)
Split result
The insurer established late submission of one claim, while conflicting expert opinions left the orthopedic surgery claim's necessity for trial. The Appellate Term, First Department, modified the order, insofar as appealed from, to grant summary judgment dismissing the smaller claim and otherwise affirmed. The claims adjuster's affidavit established submission beyond the 45-day limit under 11 NYCRR 65-1.1 (d). The provider's office manager neither alleged personal mailing within that period nor described a regular office mailing practice and procedure, leaving no triable issue on timely submission. For the separate orthopedic surgery claim, the parties' conflicting medical expert opinions raised a triable issue of medical necessity, so dismissal remained denied.
Appellate Term, First Department
Apr 16, 2015
2015 NY Slip Op 50537(U)
Provider prevailed
The insurer failed to prove timely mailing of its denials because its affiant did not establish knowledge of the insurer's mailing practices. The mailing affidavit came from an employee of a nonparty insurance group only remotely related to the insurer. It did not explain the basis for personal knowledge of the insurer's internal mailing procedures during the relevant period, particularly because the affiant began working for that group after the denial was allegedly mailed. The affidavit therefore lacked probative value. The Appellate Term, First Department, affirmed the order, insofar as appealed from, leaving in place the partial denial of the insurer's summary judgment motion dismissing the provider's no-fault action.
Appellate Term, Second Department
Apr 16, 2015
2015 NY Slip Op 50609(U)
Insurer prevailed
The insurer's record-search affidavit established that no policy covered the vehicle on the accident date. In the provider's action for assigned no-fault benefits, the insurer opposed the provider's summary judgment motion and cross-moved to dismiss for lack of coverage. Its employee described the details of a search and stated that no policy was in effect on the accident date. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., that evidence established prima facie that the claim did not arise from a covered incident. The provider raised no triable issue. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, First Department
Apr 16, 2015
2015 NY Slip Op 50538(U)
Insurer prevailed
The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge. The third-party IME scheduler described standard office mailing practices and procedures. The scheduled chiropractor, acupuncturist and scheduler supplied sworn affidavits detailing their personal knowledge of the missed examinations and office practices when an assignor failed to appear. The provider did not specifically deny nonappearance or raise a triable issue concerning that failure, the mailing of the notices or their reasonableness. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted dismissal of the provider's no-fault claim and directed entry of judgment.
Appellate Term, Second Department
Apr 16, 2015
2015 NY Slip Op 50603(U)
Provider prevailed
The insurer's summary judgment motion based on the provider's alleged EUO nonappearance was denied on appeal. The Appellate Term, Second Department, reversed the order dismissing the complaint because the insurer failed to establish that defense as a matter of law, citing Alrof, Inc. v Safeco Natl. Ins. Co. and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.
Appellate Term, Second Department
Apr 16, 2015
2015 NY Slip Op 50605(U)
Provider prevailed
The insurer failed to establish fraudulent policy procurement because the insured's residence remained disputed and its report relied on hearsay. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits. Although the insured's EUO transcript was admissible, the testimony did not eliminate all material factual issues concerning the insured's actual residence when the policy was procured. The investigative report rested on inadmissible hearsay statements. The insurer therefore failed to make a prima facie showing of fraudulent procurement. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.
Appellate Term, Second Department
Apr 16, 2015
2015 NY Slip Op 50606(U)
Provider prevailed
The insurer's summary judgment motion based on fraudulent procurement of the policy was denied, and that denial was affirmed. The Appellate Term, Second Department, affirmed the order in the provider's action for assigned no-fault benefits for the reasons stated in the companion appeal decided the same day, No. 2013-1345 K C.
Appellate Term, First Department
Apr 14, 2015
2015 NY Slip Op 50525(U)
Insurer prevailed
An insurer need not defer payment of other legitimate claims pending resolution of a claim it timely denied for lack of medical necessity. After timely denying the provider's claim, the insurer exhausted policy limits by paying no-fault benefits pursuant to arbitration awards favoring other providers. Its proof established compliance with the priority-of-payment regulation, 11 NYCRR 65-3.15. The provider raised no triable issue. Following Nyack Hosp. v General Motors Acceptance Corp., requiring payment delays on uncontested claims or binding awards would undermine prompt payment under the no-fault scheme. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's cross motion dismissing the complaint and directed entry of judgment.
Appellate Term, Second Department
Apr 7, 2015
2015 NY Slip Op 50470(U)
Insurer prevailed
No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance. The insurer's paralegal established mailing through personal mailing and office procedures; transcripts proved nonappearance, and the insurer established timely mailing of the denial. The provider's counsel's affirmation raised no triable issue. Because EUO attendance is a condition precedent to policy liability, the Appellate Term, Second Department, reversed and granted the insurer's summary judgment motion dismissing the complaint.
Appellate Term, First Department
Apr 2, 2015
2015 NY Slip Op 50445(U)
Insurer prevailed
The insurer proved timely mailing of the IME notices and the assignor's nonappearance, warranting dismissal of the provider's claims. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion and granted dismissal. Affidavits from the scheduled examining acupuncturists and an employee of the third-party IME scheduler established nonappearance through personal knowledge of office practices and policies. The provider neither specifically denied nonappearance nor raised a triable issue concerning mailing or the notices' reasonableness. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer could deny claims retroactively to the loss date regardless of denial timeliness or its initial reliance on other grounds.
Trial court, Second Department
Apr 27, 2015
2015 NY Slip Op 50631(U)
Provider prevailed
A provider may prove submission and receipt of no-fault claims at trial through the insurer's witness and denial forms. The provider called the insurer's claims examiner, whose testimony and the denials established receipt and the amounts billed. The Civil Court, Kings County, found the provider's prima facie burden satisfied without admission of the bills as business records under CPLR 4518 (a). The insurer failed to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c); its investigation delay letters did not request verification or toll that period. It also presented no competent evidence of alleged fraud. Judgment was directed for the provider, and both directed-verdict motions were denied as moot.
Trial court, Second Department
Apr 24, 2015
2015 NY Slip Op 25132
Provider prevailed
Impermissible fee-splitting alone does not violate a licensing requirement or furnish a defense to a no-fault claim. The insurer sought summary judgment under 11 NYCRR 65-3.16 (a) (12), arguing that a chiropractor's payment of a percentage of collections to a billing company constituted improper ownership. The Civil Court, Queens County, denied the motion in its entirety. It found the purported contract inadmissible and no showing of fraudulent state filings or control by nonprofessionals. Mallela distinguishes behavior tantamount to fraud from technical violations. Fee-splitting prohibited by 8 NYCRR 29.1 (b) (4) and Education Law §§ 6509-a and 6530 (19), standing alone, was a matter for the appropriate state licensing board.
Trial court, First Department
Apr 7, 2015
2015 NY Slip Op 25099
Insurer prevailed
An insurer's late denial does not preclude a fee-schedule defense under 11 NYCRR 65-3.8 (g) (1) (ii). A New Jersey surgical facility sought no-fault benefits after the insurer paid the New Jersey fee-schedule amount and denied the balance beyond the 30-day period. The Civil Court, Bronx County, construed the prevailing fee under 11 NYCRR 68.6 as the amount permitted by New Jersey's fee schedule. It held that the amended regulation allowed the defense despite untimeliness, superseding contrary pre-amendment authority for fees exceeding permissible charges under Insurance Law § 5108 (b). The insurer's certified coder established the excess billing, and the provider offered no admissible evidence raising a factual issue. The insurer's summary judgment motion was granted in its entirety, dismissing the claim with prejudice.
Trial court, First Department
Apr 1, 2015
2015 NY Slip Op 50636(U)
Insurer prevailed
The insurer obtained vacatur because the arbitrator failed to disclose a connection to a law firm representing the provider. The Civil Court, New York County, granted the insurer's CPLR 7511 petition and vacated the award that the master arbitrator had upheld. Shared office space, a jointly authored article, corporate records, and a website supported more than a remote or occasional association with a firm representing the provider in other no-fault matters. A different firm represented the provider at this arbitration. Under Matter of J.P. Stevens & Co., Inc. v Rytex Co., disclosure must permit timely inquiry into potential bias. The objection was reviewable because no evidence showed that the insurer knew of the connection or had facts prompting further inquiry before the hearing.
