No-Fault Case Law
Doctor Liliya Med., P.C. v MVAIC (2008 NY Slip Op 52453(U))
December 3, 2008
A provider whose assignor knows the vehicle's driver and owner must exhaust remedies against them before seeking relief from MVAIC. MVAIC moved under CPLR 3211 (a) (7) to dismiss the provider's action for assigned no-fault benefits as premature. The provider and its assignor knew the identities of the driver and owner of the vehicle in which the assignor had been a passenger. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the order and granted MVAIC's motion. The provider could assert a claim against MVAIC after exhausting those remedies; the court reached no other issue.
Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52442(U))
December 2, 2008
The insurer failed to establish timely denials or that it did not insure the assignor's vehicle on the loss date. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment. The insurer failed to establish timely denials permitting its late-notice and late-proof defenses and, independently, failed to demonstrate those defenses' merits. Its documentation showed only that the vehicle was not insured under the claimed policy number, without alleging or proving that no coverage existed on the loss date. The burden therefore never shifted to the provider. A separate concurrence agreed with the result but considered the litigation examiner's affidavit sufficient to establish timely mailing.
St. Barnabas Hosp. v American Tr. Ins. Co. (2008 NY Slip Op 09585)
December 2, 2008
The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion. The Appellate Division, Second Department, modified the order to deny the hospital provider's motion on the first cause of action and affirmed the denial of the insurer's cross motion to dismiss that cause of action. The provider established mailing and receipt of the prescribed billing forms and overdue payment. However, the factual issue concerning compliance with verification prevented summary judgment, and the insurer's obligation to pay or deny did not arise until the provider furnished all demanded verification.
Westchester Med. Ctr. v One Beacon Ins. Co. (2008 NY Slip Op 52580(U))
December 1, 2008
The insurer's intoxication evidence raised factual questions but did not establish that intoxication caused the accident. The Supreme Court, Nassau County, denied both sides' summary judgment motions on the second and third causes of action. Under Insurance Law § 5103 (b) (2), intoxication is a coverage exclusion requiring timely denial or verification requests. Although the hospital established billing and nonpayment, the insurer showed timely requests and follow-ups for toxicology information that remained unanswered. A single-vehicle accident, a driving-while-intoxicated charge and blood-alcohol evidence justified seeking verification, but the insurer supplied no specifics establishing causation. The court also rejected the hospital's challenge to the denial's specificity.
A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2008 NY Slip Op 52651(U))
November 26, 2008
The insurer failed to raise triable issues on overdue claims or claims challenged only through unsworn peer reviews. The Appellate Term, Second Department, modified the order to grant the providers summary judgment on nine medical, three acupuncture and three chiropractic claims. Two medical claims were not timely denied; a nonspecific affidavit failed to establish outstanding verification for seven medical and three chiropractic claims under 11 NYCRR 65-3.5 (b) and 65-3.8 (a). Unsworn acupuncture peer reviews lacked probative value. Summary judgment remained denied on three medical and two chiropractic claims supported by timely denials and affirmed peer reviews. The court remanded for interest and attorney fees under Insurance Law § 5106 (a) and further proceedings, leaving the unpreserved business-record foundation issue unaddressed.
Matter of Progressive Northeastern Ins. Co. (New York State Ins. Fund) (2008 NY Slip Op 09334)
November 26, 2008
Loss-transfer recovery based on use for hire requires proof that a vehicle was principally used for that purpose. A workers' compensation carrier obtained an arbitration award reimbursing benefits from the no-fault insurer. The record showed only that the insured passenger vehicle bore another vehicle's livery plates and transported passengers for hire on the accident date. Under Insurance Law § 5105 (a), principal use was part of the carrier's threshold showing, not an affirmative defense. Compulsory arbitration under Insurance Law § 5105 (b) required evidentiary support and a rational basis, which this award lacked. The carrier had not pursued available disclosure. The Appellate Division, Third Department, reversed the order denying vacatur, granted the insurer's CPLR 7511 application, and vacated the award.
A.B. Med. Servs. PLLC v GEICO Gen. Ins. Co. (2008 NY Slip Op 52641(U))
November 24, 2008
The provider's conditions for attending an EUO constituted refusal to supply verification, leaving six claims premature. The provider demanded separate paid appearances for each patient rather than a single EUO and failed to appear twice, although the insurer accommodated requests concerning location and day. The District Court, Nassau County, found timely verification requests remained unanswered and the payment-or-denial period remained tolled under 11 NYCRR 65-3.8 (a) (1). It denied the provider's summary judgment motion and granted judgment to the insurer dismissing the final six claims as premature. The fifth claim was also dismissed because the provider supplied no medical evidence opposing a timely peer-review denial. The first, second, third, fourth and sixth claims remained unresolved because their partial fee-schedule denials presented factual disputes.
Utica Natl. Ins. Group v Luban (2008 NY Slip Op 52610(U))
November 24, 2008
An insurer may recover no-fault payments made after 11 NYCRR 65-3.16 (a) (12) took effect to providers controlled by unlicensed persons. The Supreme Court, Queens County, granted partial summary judgment to the insurer on nine causes against five providers that received payments after April 4, 2002. Consent orders established that their nominal physician owner lacked control, violating Business Corporation Law § 1503 (a). Applying Mallela's reasoning, the court found intent to defraud at incorporation immaterial and rejected reliance on permission to collect receivables while winding up. The same causes were dismissed against four other providers because the insurer proved neither receipt of payments nor control of the paid entities. Remaining causes continued, with discovery compelled.
Allstate Ins. Co. v Musa-Obregon (2008 NY Slip Op 52382(U))
November 21, 2008
The subrogation defendant failed to establish an excuse for default through an attorney affirmation lacking personal knowledge. The insurer sued to recover uninsured motorist and basic no-fault payments made on behalf of its subrogor. After an initial default was vacated by stipulation, the defendant defaulted again, and the judgment was reinstated following an inquest. Under CPLR 5015 (a), vacatur required a reasonable excuse and a meritorious defense. The attorney's affirmation had no probative value because it did not allege personal knowledge. The Appellate Term, Second Department, reversed the order granting vacatur, denied the defendant's motion and reinstated the insurer's default judgment against that defendant.
D.A.V. Chiropractic, P.C. v GEICO Indem. Co. (2008 NY Slip Op 52304(U))
November 7, 2008
The insurer's fraudulent-procurement defense failed because it showed neither preaccident cancellation nor the assignors' participation in fraud. The providers established their prima facie case under Insurance Law § 5106 (a), with the billing manager's affidavit authenticating the claim forms under CPLR 4518. The insurer alleged identity theft, but the record contained no evidence connecting the assignors to the scheme. A prior order denying summary judgment because fraud presented a factual issue lacked sufficient finality for collateral estoppel. Without cancellation before the accident under Vehicle and Traffic Law § 313, the insurer raised no triable issue. The Appellate Term, Second Department, affirmed the providers' summary judgment.