No-Fault Case Law
Long Is. Multi-Medicine Group, P.c. v Travelers Ins. Co. (2009 NY Slip Op 50030(U))
January 8, 2009
The insurer failed to raise a triable issue because its denial forms did not correspond to the claims for which judgment was sought. Opposing the provider's summary judgment motion for assigned no-fault benefits, the insurer asserted late submission of claims under 11 NYCRR 65.12. Its claims representative's affidavit and attached forms showed denials of other claims, but did not establish timely denial of the claims at issue. The Appellate Term, Second Department, affirmed the provider's judgment on that ground. The lower court had granted summary judgment on a different rationale: failure to advise that the claims could be reconsidered upon a showing of impossibility of timely submission.
Matter of Long Is. Ins. Co. (2009 NY Slip Op 50003(U))
January 5, 2009
The arbitration award was vacated because the claimant could not be a covered household member of the deceased named insured. The claimant sought no-fault and uninsured motorist benefits under a policy renewed after the named insured's death. The court found fraudulent intent from the claimant's EUO answers and cashing of a refund check payable to the decedent. Even assuming effective renewal, the claimant could not reside in the decedent's household. The Supreme Court, Kings County, vacated the award as irrational under CPLR 7511 (b), finding that the arbitrator exceeded its powers by awarding benefits without coverage, and granted the insurer summary judgment on noncoverage. The stay request was moot; the motions to confirm and amend were denied as moot.
All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))
December 31, 2008
The insurer failed to prove timely mailing of the IME requests or the assignor's nonappearance through admissible evidence. The provider sought summary judgment on two claims that the insurer asserted it had timely denied for failure to attend two IMEs. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted partial summary judgment to the provider under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The matter was remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). A separate concurrence agreed only with the result and expressed disagreement with propositions in the cited authority.
Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co. (2008 NY Slip Op 52585(U))
December 31, 2008
The provider's conclusory, undetailed and uncorroborated claim of law office failure did not excuse its default. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious cause of action. Counsel supplied no explanation for failing to submit written opposition or appear on the adjourned motion date. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied vacatur and the requested subsequent denial of the insurer's motion. The insurer's summary judgment on default remained intact; the court passed on no other issue.
New Century Osteopathic v State Farm Fire & Cas. Ins. Co. (2008 NY Slip Op 52584(U))
December 31, 2008
The providers' appeal was dismissed because the oral trial motion was not made on notice and no appeal lay from the dismissal decision. The providers sought a ruling that an earlier summary judgment order recognizing their prima facie showing eliminated the need to establish a prima facie case at trial. The Civil Court denied that oral motion and dismissed the complaint when the providers presented no evidence; no judgment was entered. The Appellate Term, Second Department, dismissed the appeal, explaining that CCA 1702 (a) (2) and CPLR 2211 afforded no appeal as of right from the ruling on the motion and that a decision was not appealable. The insurer retained the favorable dismissal.
Yklik Med. Supply, Inc. v Allstate Ins. Co. (2008 NY Slip Op 28532)
December 31, 2008
An insurer must issue a timely denial to preserve a fee-schedule defense, including a defense of partial payment under the schedule. The provider established its prima facie case through a billing manager's detailed affidavit describing recordkeeping and mailing procedures and personal mailing of the bill. The insurer denied the claim approximately 56 days after receipt. Applying Insurance Law § 5106 (a), 11 NYCRR 65-3.5 and Fair Price Med. Supply Corp. v Travelers Indem. Co., the Civil Court, Richmond County, held that fee-schedule noncompliance did not implicate lack of coverage in the first instance. The untimely denial precluded the insurer's fee-schedule and related partial-payment defenses, and the court granted the provider summary judgment.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28528)
December 31, 2008
A provider cannot correct during litigation claim forms identifying the treating professionals as independent contractors. The insurer sought summary judgment based on two such forms; the provider offered unrelated trial transcripts finding its treating providers were employees. The Appellate Term, Second Department, affirmed dismissal. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.11 (a), the forms did not establish a compensable loss or entitlement to direct payment. The independent-contractor defense was nonprecludable, and the insurer could rely on the forms without issuing a denial. The court noted that a corrected claim might be submitted with reasonable justification for missing the 45-day deadline under 11 NYCRR 65-1.1, but left that justification unresolved here.
Modern Art Med., P.C. v MVAIC (2008 NY Slip Op 52586(U))
December 31, 2008
The provider failed to show exhaustion of remedies against the vehicle owner before seeking no-fault benefits from MVAIC. The provider obtained summary judgment and a judgment for assigned benefits, which MVAIC challenged on exhaustion grounds. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the provider had not demonstrated exhaustion of remedies against the owner of the vehicle allegedly striking the assignor. The court reversed the judgment, vacated the underlying order, and denied the provider's motion for summary judgment, reaching no other issue.
Connely v Progressive Casualty Insurance Co. (2008 NY Slip Op 52589(U))
December 31, 2008
A party that obtains all requested relief cannot appeal merely because it disagrees with the order's findings or rationale. In an assigned no-fault action, the insurer sought a protective order striking the provider's notice to admit. Civil Court denied the motion, giving the provider the full relief sought in opposition. The provider nevertheless appealed to remove language expressing the court's views on notices to admit in no-fault actions. Following Parochial Bus Sys. v Board of Educ. of City of N.Y., the Appellate Term, Second Department, dismissed the provider's appeal because disagreement with the favorable order's reasoning supplied no grounds for appeal.
Montefiore Med. Ctr. v Auto One Ins. Co. (2008 NY Slip Op 10596)
December 30, 2008
The insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service. The Appellate Division, Second Department, affirmed the denial of the insurer's motion under CPLR 5015 (a) (1) to vacate a default judgment awarding the providers no-fault benefits under two insurance contracts. The providers established service through delivery to the Assistant Deputy Superintendent and Chief of Insurance under Insurance Law § 1212. The insurer did not challenge the address on file with the Superintendent, and mere denial of receipt was insufficient. Even treating the motion as one under CPLR 317, the insurer failed to show that it lacked actual notice of the summons in time to defend.