Appellate Division, First Department
May 31, 2016
2016 NY Slip Op 04156
Insurer prevailed
A master arbitrator's award was irrational because it ignored the coverage effect of the assignor's failure to attend duly scheduled IMEs. The insurer presented authority establishing that the IME nonappearances rendered the no-fault policy void ab initio. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, an alleged error in the denial form furnished no rational basis for the award. The Appellate Division, First Department, reversed the denial of the insurer's petition, granted the petition and vacated the award. The provider also waived its improper-service objections under CPLR 3211 (e) by never moving to dismiss on those grounds.
Appellate Division, Second Department
May 18, 2016
2016 NY Slip Op 03879
Provider prevailed
A provider's attorney's fee for judicial review of a master arbitration award is fixed by the court under 11 NYCRR 65-4.10 (j) (4). The provider prevailed in arbitration, obtained affirmance by the master arbitrator, and cross-petitioned to confirm when the insurer sought vacatur. Supreme Court confirmed the award but denied the additional fee. The Appellate Division, Second Department, reversed the order and judgment, insofar as appealed from, and granted the fee request to the extent of $650, otherwise denying it. Applying Insurance Law § 5106 (a) and 11 NYCRR 65-4.10 (j), the court awarded the stated maximum because no oral-argument fee was requested and there was no finding of novel or unique issues.
Appellate Division, Second Department
May 4, 2016
2016 NY Slip Op 03485
Split result
The insurers failed to establish timely and proper mailing of the EUO letters through a conclusory description of office procedures. In their declaratory judgment action, the insurers sought summary judgment based on the provider's EUO nonappearance, while the provider cross-moved to dismiss based on allegedly defective denials. Counsel's affirmation did not establish procedures ensuring that EUO letters were properly addressed and mailed, so the insurers' motion failed regardless of the opposition. The provider likewise failed to establish that the denials were conclusory, vague or otherwise defective. The Appellate Division, Second Department, modified the order to deny the insurers' motion and affirmed the denial of the provider's cross motion, leaving both sides without summary judgment.
Appellate Division, Second Department
May 4, 2016
2016 NY Slip Op 03484
Provider prevailed
The insurer failed to establish staged collisions or proper mailing of EUO requests through admissible proof. The insurer sought a declaration denying coverage for a provider's claims arising from two collisions, alleging intentional staging and failures to attend scheduled EUOs. Its uncertified police reports were inadmissible, and its medical representative relied on inadmissible evidence and lacked personal knowledge of the collisions. The insurer also submitted neither proof of mailing the EUO requests nor evidence from a person with personal knowledge of the mailings. The Appellate Division, Second Department, reversed the order, insofar as appealed from, denied summary judgment against the provider and remitted for further proceedings; the provider's remaining contention was not reached.
Appellate Term, First Department
May 31, 2016
2016 NY Slip Op 50828(U)
An arbitration award directing payment beyond a no-fault policy's monetary limit exceeds the arbitrator's power. The insurer sought vacatur based on exhaustion, submitting an attorney affirmation, policy declaration page and chronological payment ledger. Those submissions raised factual issues about whether the $50,000 limit was exhausted before payment of the provider's claims became obligatory under 11 NYCRR 65-3.15. Under Matter of Brijmohan v State Farm Ins. Co. and 11 NYCRR 65-1.1, the objection was not waived when asserted against confirmation. The Appellate Term, First Department, reversed the denial of vacatur and confirmation of the award and remanded for a framed issue hearing. It also rejected the provider's contention that the insurer could not pay other legitimate claims after denying these disputed claims.
Appellate Term, First Department
May 17, 2016
2016 NY Slip Op 50775(U)
Provider prevailed
The insurer failed to establish EUO nonappearances through evidence from anyone with personal knowledge. The Appellate Term, First Department, affirmed the denial of the insurer's motion for summary judgment dismissing the provider's no-fault action. Counsel described procedures for contacting claimants before scheduled EUOs, but did not show personal knowledge of office procedures when a claimant failed to appear or state that counsel was assigned to conduct the EUOs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that proof was insufficient. The court also stated that the EUO nonappearance defense could be asserted regardless of denial timeliness, rejecting the motion court's additional ground for denying summary judgment.
Appellate Term, First Department
May 13, 2016
2016 NY Slip Op 50764(U)
Provider prevailed
MVAIC's own conflicting proof left a triable issue as to whether the assignor filed a notice of intention to make a claim. In moving for summary judgment dismissing the provider's assigned no-fault action, MVAIC submitted a letter acknowledging receipt of that notice. This conflicted with its asserted basis for dismissal and prevented a prima facie showing of entitlement to judgment. Denial was therefore required regardless of the sufficiency of the provider's opposition. The Appellate Term, First Department, affirmed the denial of MVAIC's motion on grounds different from those given by the Civil Court. MVAIC's remaining contentions were unpreserved or without merit.
Appellate Term, First Department
May 13, 2016
2016 NY Slip Op 50762(U)
Provider prevailed
The insurer's own submissions raised triable issues about whether the assignor's EUO nonappearances were excusable because of incarceration. The insurer established timely and proper mailing of the initial and follow-up EUO notices to the assignor and the assignor's attorney, as well as nonappearance at both EUOs. Nevertheless, letters from its no-fault examiner and supervisor acknowledged the assignor's incarceration, and the exact incarceration period remained unclear. Following IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., the limited record did not eliminate factual issues concerning excuse. The Appellate Term, First Department, affirmed the denial of the insurer's motion for summary judgment dismissing the provider's no-fault complaint.
Appellate Term, First Department
May 13, 2016
2016 NY Slip Op 50763(U)
Split result
The record raised triable issues about whether the assignor failed to appear for scheduled IMEs. The insurer had established proper mailing of the IME notices to the assignor and the assignor's attorney, but that showing did not resolve nonappearance. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the factual issues barred summary judgment for either side in the provider's assigned no-fault action. The Appellate Term, First Department, modified the order to deny the insurer's motion and reinstate the complaint, while affirming the denial of the provider's cross motion. The provider's remaining contentions were unpreserved or without merit.
Appellate Term, Second Department
May 5, 2016
2016 NY Slip Op 50738(U)
An insurance policy declaration page has independent legal significance and requires authentication, not a business-record foundation. After a nonjury trial, the provider obtained judgment for assigned no-fault benefits. The Appellate Term, Second Department, found that the provider proved billing, mailing and nonpayment through its owner's testimony, but reversed and ordered a new trial because the declaration page supporting the insurer's exhaustion defense was improperly excluded. CPLR 4518 (a) did not apply because the document was not hearsay. The insurer's representative authenticated the electronic reproduction under CPLR 4539 (a) and described safeguards against tampering or degradation under CPLR 4539 (b). That testimony was sufficient to admit the declaration page.
Appellate Term, Second Department
May 5, 2016
2016 NY Slip Op 50737(U)
Provider prevailed
The insurer's summary judgment motion concerning services billed under CPT code 97026 was denied on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, because the insurer's moving papers failed to establish prima facie entitlement to dismissal of that portion of the provider's no-fault complaint, citing Rogy Med., P.C. v Mercury Cas. Co.
Appellate Term, Second Department
May 5, 2016
2016 NY Slip Op 50739(U)
The provider's judgment for assigned no-fault benefits after a nonjury trial was reversed and a new trial ordered. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2014-2032 K C, and remitted the matter to Civil Court.
Trial court, Second Department
May 24, 2016
2016 NY Slip Op 50821(U)
Insurer prevailed
The insurer established mailing of its EUO notices and denials and the provider's failure to appear at two scheduled EUOs. The Supreme Court, Nassau County, granted the insurer's summary judgment motion and dismissed the complaint. Affidavits describing the insurer's document preparation and mailing practices established mailing, and an attorney present at the scheduled EUOs established nonappearance. Under 11 NYCRR 65-1.1, the failures to appear breached a policy condition. The provider's objections to the grounds for requesting EUOs were belated, and its owner's later appearance in another proceeding did not excuse the breach. The provider also failed to justify further discovery under CPLR 3212 (f). Although the insurer did not establish that seven claims were duplicative, the EUO defense supported their denial.
Trial court, Second Department
May 20, 2016
2016 NY Slip Op 50846(U)
Split result
The insurer's failure to issue an NF-10 or show approval of an alternative precluded its medical-necessity defense. The Civil Court, Kings County, found the insurer's reimbursement explanation insufficient under 11 NYCRR 65-3.8 (c) (1) because no NF-10 or departmental approval was shown. Under 11 NYCRR 65-3.8 (g), excessive-fee defenses for services rendered on or after April 1, 2013, survive untimely or defective denials. New Jersey's schedule governed reimbursement under 11 NYCRR 68.6; overbilling reduced payment rather than barring recovery entirely. The coder's unclear calculations raised a factual issue but did not warrant summary judgment. Both motions were granted only to establish prima facie cases for trial, where the insurer bore the burden on the sole remaining fee-schedule issue.
