Jamaica Med. Supply, Inc. v GEICO Ins. Co. (2013 NY Slip Op 50990(U))

Civil Court of the City of New York, Kings County

072854/09

Attorney for Plaintiff:

Gary Tsirelman P.C.

65 Jay Street, 3rd Floor

Brooklyn, NY 11201

Attorney for Defendant:

Law Office of Solowan & Welden

Dominick Dale, Esq.

170 Froehlich Farm Blvd.

Brooklyn, NY 11797

Katherine A. Levine, J.

The novel issue presented at trial is whether the bill submitted by plaintiff Jamaica Medical Supply Inc. (“plaintiff” or “Jamaica”), for the rental of medical supply equipment on its face constituted a reasonable justification for plaintiff’s untimely submission of written proof of claim or whether plaintiff had an independent obligation to submit a written reasonable justification for its late bill upon receiving the denial from defendant Geico Insurance Company (“Geico”).^[FN1]

Plaintiff Jamaica Medical Supply Inc. (“plaintiff” or “Jamaica”), a medical equipment company, commenced this action to recover the sum of $3475.00 for medical supplies it rented to its assignor Hilma Thornhill (“Thornhill”). At the commencement of the trial, both sides stipulated to each other s prima facie cases. In its NF-10 form, Geico denied the claim on the grounds that plaintiff violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations—11 NYCRR ｧ65-1.1— [*2]by failing to submit its proof of claim for services to Geico within 45 days from the date services were rendered. The denial contained an explanation under reason 45 and set forth that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.” The burden therefore shifted to plaintiff at trial to establish a clear and reasonable excuse for its untimely submission of the bill.

During the trial, defendant made a motion in limine to preclude the testimony of plaintiff’s owner on the ground that plaintiff failed to respond, during the claims phase, to defendant’s request in its denial to provide a reasonable excuse for its late claim. The Court took the motion under advisement but allowed the plaintiff to testify. Admitted into evidence were two no fault bills dated May 1, 2009, for a water circulating pump/cold pad and for a “passive motion exercise machine (“CPM”) along with the setting up and fitting of the machine and a pad. While both medical supplies were dispensed on March 6, 2009, the return receipt for the water circulating pad was dated March 20, 2009 where as the return receipt for the CPM unit was dated April 6, 2009. Also admitted into evidence were delivery receipts for the CPM unit and water circulating pump wherein Thornhill acknowledged receiving the items and promised to return the units in the same condition as received within two- six weeks of delivery.

Based upon the above, it is clear that plaintiff submitted a claim for the water circulating pump/cold pad 56 days after it was delivered and 42 days after it was returned by the assignor. Plaintiff submitted the claim for the CPM Unit/soft pad kit 56 days after it was delivered and 25 days after it was returned to plaintiff. While both claims were therefore submitted to Geico beyond the 45 days from date of delivery of the equipment, they were sent within 45 days after the rental equipment was returned.

Plaintiff’s president and owner, Mike Kmaimov (“Kmaimov”), testified that due to the exorbitant price of the equipment, Jamaica Medical only rents the CPM unit and water circulating pump. Since the equipment is rented, it was not possible for plaintiff to send the no -fault bill to the insurer within 45 days of disbursement since plaintiff could not ascertain the number of the days that the machines would be rented, and hence the cost of the rental, until the machines were returned. Kmaimov also testified that in some instances a doctor will be re prescribe the machines and it is “impracticable” for the plaintiff to pick up a new prescription and redeliver the machines.

Plaintiff submits that its provision of all the rental documents and no fault bills to defendant on May 1st constituted a reasonable excuse for the alleged late submission of the claim. Plaintiff argues that defendant bears the burden of reviewing the claim documents which clearly showed that the since the durable medical equipment (“DME”) were rentals, they “could not have been billed 45 days” from their initial disbursement. Plaintiff therefore asserts it could not send the no fault bill to defendant until the rental was complete. Yet, in the same breadth, plaintiff admits that case law and state DME guidelines mandate that the date of service must be [*3]the date the supplies were dispersed.

Pursuant to 11 NYCRR §65-1.1 (b) all claims must be submitted within “45 days after the date (the) services (were) rendered”. Where one proof of claim is submitted for several medical treatments, the 45 day period commences “the day after the first treatment is rendered.” SZ Med. P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term, 2d Dept. 2006) citing NY Ins Dept Informal Op No. 03-06-30 (June 30, 2003). See, Health Care Associates (Varallo) v. Geico, 2010 NY Slip Op 50094(U), 26 Misc 3d 1214(A) (Civil Ct., Richmond Co. 2010). These time limitations shall apply “unless the eligible injured person [or that person’s representative] submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.” 11 NYCRR ｧ65-1.1. This duty follows from an insurer’s obligation to include within a denial, based upon the failure to timely submit a proof of claim advise to the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice. 11 NYCRR ｧ65-3.3 (e). See, Radiology Today, P.C. v. Citiwide Auto Leasing, Inc., 15 Misc 3d 92 (App. Term, 2d Dept. 2007).

As plaintiff concedes that the case law and state DME guidelines mandate that the date of service be the date the supplies were dispersed, it cannot argue that its 45 days to submit a claim runs from the date that the rental equipment is returned. Furthermore, both of the rented DMEs were returned within the 45 day period, thus making it possible for plaintiff to still timely submit its claim forms to defendant. Given this fact, plaintiff’s attempt to distinguish rental equipment from equipment it sells to the assignor is of no significance. Similarly, plaintiff’s attempt to explain away the 45 day rule at trial by claiming that both the disbursement and return rental forms that it sent to defendant were self explanatory has no merit. Had the items been returned after the 45 days had already expired, the Court might consider whether these forms on their face constituted a reasonable justification for failure to give timely notice.

Since plaintiff could have timely submitted its claims upon the return of the rental equipment, defendant was not under an obligation to some how glean why plaintiff waited until May 1, 2010 to submit its claim forms. Defendant followed the regulations by including within its denial advice to plaintiff that its late notice excused it plaintiff could provide a reasonable justification. Having failed to respond to defendant’s request at the claims phase, plaintiff cannot interpose its justification at trial. Prestige Medical & Surgical Supply, Inc. v. Chubb Indemnity, 2010 NY Slip Op 50449(U), 26 Misc 3d 145(A) (App. Term, 2d Dept. 2010); Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op. 52143(U), 17 Misc 3d 1125(A) (Civil Ct., Kings Co. 2007).

As such, the complaint is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 10, 2013______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________

Footnotes

Footnote 1:A number of cases were consolidated at trial for the purposes of this issue.