Appellate Division, First Department
Jan 16, 2024
2024 NY Slip Op 00174
Insurer prevailed
An arbitrator exceeds the scope of authority by awarding no-fault benefits after payment of the contractual policy limit. The Appellate Division, First Department, affirmed denial of the provider's petition to vacate a master arbitration award. The master arbitrator rationally upheld the initial award, and reliance on First Department rather than contrary Second Department precedent did not warrant reversal: the insurer's duties ceased upon payment of its contractual limit. The provider's argument that the insurer twice applied the 20 percent wage offset under Insurance Law § 5102 (b) and 11 NYCRR 65-1.1 was unpreserved and, if considered, unavailing. The provider was also denied attorney fees under 11 NYCRR 65-4.10 (j) (4).
Appellate Division, First Department
Jan 4, 2024
2024 NY Slip Op 00028
Insurer prevailed
The insurers established a founded belief that the collision was not covered and, independently, the claimants' EUO nonappearance. The Appellate Division, First Department, reversed the order, insofar as appealed from, and granted summary judgment declaring no obligation to pay the three responding providers. Investigation and the driver's EUO testimony that a passenger told someone to hit the car supported denial under 11 NYCRR 65-3.8 (e) (2) and policy fraud provisions. The providers submitted no knowledgeable person's affidavit. Independently, affidavits and transcripts established two properly noticed EUO defaults and timely notices and denials under 11 NYCRR 65-3.5 (b), 65-3.6 (b), and 65-3.8 (a) (1) and (c). The providers raised no triable issue, and their asserted innocence was irrelevant because assignees cannot improve their assignors' position.
Appellate Term, Second Department
Jan 26, 2024
2024 NY Slip Op 50120(U)
Provider prevailed
No-fault claims arising from accidents before April 5, 2002 are governed by the former regulations requiring compound interest. After the insurer failed to pay a settlement of the provider's assigned-benefits action, a judgment awarded statutory interest at a simple rate of 2% per month. The provider moved under CPLR 5019 (a) to recalculate the interest at a compound rate. Because the accident preceded the effective date of 11 NYCRR 65-3.9 (a), former 11 NYCRR 65.15 (h) (1) governed. Postjudgment no-fault interest is governed by Insurance Law § 5106 and its implementing regulations. The Appellate Term, Second Department, reversed the order and granted the provider's motion.
Appellate Term, Second Department
Jan 26, 2024
2024 NY Slip Op 50119(U)
Provider prevailed
Statutory no-fault interest was improperly tolled through judgment because the insurer did not show that the provider prevented payment. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, vacated the sua sponte toll, and remitted for a new judgment. The provider had obtained judgment on an unpaid settlement under CPLR 5003-a and moved under CPLR 5019 (a) to replace simple interest with two percent monthly compound interest. The Civil Court granted that correction but suspended accrual from settlement through the original judgment. Under CPLR 5003-a (e), settlement obligated the insurer to pay, and the provider needed no demand for payment. Without proof that the provider prevented payment, the interest toll could not stand.
Appellate Term, Second Department
Jan 26, 2024
2024 NY Slip Op 50118(U)
Provider prevailed
Statutory no-fault interest was improperly tolled because the insurer did not show that the provider prevented settlement payment. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, vacated the sua sponte toll, and remitted for a new judgment. After an unpaid settlement, the provider obtained judgment under CPLR 5003-a and sought correction under CPLR 5019 (a) to calculate compound rather than simple interest. The Civil Court allowed two percent monthly compound interest but tolled accrual from settlement until the correction motion. Under CPLR 5003-a (e), the insurer was obligated to pay the settlement, and the provider was not required to demand payment; the toll was therefore erroneous.
Appellate Term, Second Department
Jan 19, 2024
2024 NY Slip Op 50071(U)
Insurer prevailed
The insurer's summary judgment dismissing the no-fault action for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, rejected the provider's sole contention that the nonappearance affirmation was inadmissible under CPLR 2106 (a) because the attorney worked as staff counsel to the insurer, citing Matter of Reid v Rochdale Vil., Inc., and prior Warton Supplies decisions.
Appellate Term, Second Department
Jan 12, 2024
2024 NY Slip Op 50069(U)
Split result
The insurer failed to establish policy exhaustion because its claims specialist laid an insufficient foundation for the payment log. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion while affirming denial of the provider's cross-motion. Exhaustion required proof that policy limits had been paid in accordance with 11 NYCRR 65-3.15. Without a sufficient foundation under CPLR 4518 (a), the log did not establish that the listed payments had been made. The provider independently failed to establish that its claim was not timely denied or that a timely denial was conclusory, vague, or without merit as a matter of law, so neither side obtained summary judgment.
Appellate Term, Second Department
Jan 12, 2024
2024 NY Slip Op 50065(U)
Split result
The insurer's summary judgment motion based on policy exhaustion was denied on appeal, while the provider's cross-motion remained denied. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2023-753 K C. The action sought assigned first-party no-fault benefits.
Appellate Term, Second Department
Jan 12, 2024
2024 NY Slip Op 50064(U)
Split result
The insurer's summary judgment motion based on policy exhaustion was denied on appeal, while the provider's cross-motion remained denied. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, Pain Med., PLLC v State Farm Mut. Auto. Ins. Co., No. 2023-753 K C. The action sought assigned first-party no-fault benefits.
Trial court, First Department
Jan 22, 2024
2024 NY Slip Op 24033
Insurer prevailed
An insurer's global denial does not excuse regulatory requirements to submit a claim form or its substantial equivalent. In a de novo action under Insurance Law § 5106 (c), the insurer proved that it received only a statement of account with the injured claimant's arbitration demand. That statement lacked substantially the same information as prescribed forms under 11 NYCRR 65-3.5 (f), so receipt did not trigger the time to pay, deny or seek verification. The Civil Court, New York County, distinguished Domotor and found for the insurer after trial. Because Civil Court Act § 212-a did not authorize declaratory relief and no counterclaim was pleaded, the court vacated the master arbitrator's award under CPLR 3017 (a) and denied both directed-verdict motions.
Trial court, Second Department
Jan 17, 2024
2024 NY Slip Op 50126(U)
Provider prevailed
The provider's arbitration award was confirmed because the record supplied a rational basis and supported the master arbitrator's affirmance. The District Court, Suffolk County, granted the provider's unopposed petition under CPLR 7510, filed within one year after delivery of the master arbitration award. The award had not been vacated or modified on a ground specified in CPLR 7511. The master arbitrator found the initial award clearly articulated and supported by the evidence, with no valid ground to set it aside. The court agreed and confirmed the award, including interest under Insurance Law § 5106 (a), and granted additional attorney fees for the judicial proceeding under 11 NYCRR 65-4.10 (j) (4).
Trial court, Second Department
Jan 12, 2024
2024 NY Slip Op 24009
Split result
An unopposed petition to confirm a favorable no-fault award does not support attorney fees under 11 NYCRR 65-4.10 (j) (4). The Supreme Court, Kings County, granted the provider's petition under CPLR 7502 and 7510 and confirmed the master arbitration award, including the arbitration-related fees, but denied fees for the confirmation proceeding. The proceeding sought enforcement rather than review of an adverse determination or de novo adjudication. The court treated contrary language in Matter of GEICO Ins. Co. v AAAMG Leasing Corp. as dicta because that case concerned vacatur. It identified 11 NYCRR 65-3.10 (b) as the applicable remedy for overdue payment, allowing a $60 fee upon a qualifying written request after 45 days, subject to the regulation's conditions.
Trial court, Second Department
Jan 8, 2024
2024 NY Slip Op 50002(U)
Provider prevailed
The insurer failed to prove policy exhaustion when the provider's claims were complete because its payment log contained disputed dates. The Civil Court, Kings County, entered judgment for the provider after a trial limited to exhaustion. The insurer's claims specialist acknowledged an incorrect service date in the log and characterized it as a typo. Following Ortho Passive Motion, Inc. v Allstate Ins. Co., the court required proof of exhaustion when the claims were deemed complete. It found that the date errors affected the provider's substantial rights and that nothing beyond the witness's testimony established the asserted correction or showed that the payment preceded the bill at issue.
