No-Fault Case Law
North Am. Partners In Anesthesia, LLP v GEICO Gen. Ins. Co. (2019 NY Slip Op 50683(U))
May 3, 2019
An insurer's expert may testify to lack of medical necessity without having prepared the underlying peer review report. At a nonjury trial, the Civil Court excluded the substitute expert's testimony as hearsay and directed a verdict for the provider. The Appellate Term, Second Department, reversed the judgment and ordered a new trial. Following Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., the expert's testimony must remain within the denial's basis as stated in the peer review report. The provider must object if testimony exceeds that basis and, if necessary, produce the report. The insurer cannot use the report to prove lack of medical necessity or impermissibly bolster its expert's testimony.
Tyorkin v Park Ins. Co. (2019 NY Slip Op 50682(U))
May 3, 2019
The provider's summary judgment motion was denied on appeal for failure to establish an untimely or legally insufficient denial. The Appellate Term, Second Department, reversed the judgment and vacated the grant of the provider's motion in the assigned no-fault action. It upheld denial of the insurer's cross motion because the insurer's papers did not establish lack of medical necessity as a matter of law.
BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))
May 3, 2019
The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the provider's assigned no-fault claim. Although the insurer's delay letter did not toll the time to pay or deny, its initial and follow-up EUO scheduling letters were timely mailed. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court found the insurer's proof sufficient. The provider failed to raise a triable issue in opposition.
Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U))
May 3, 2019
The insurer's summary judgment motion based on the assignor's IME nonappearance was granted, and dismissal was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion in the assigned no-fault action. It found proper mailing and nonappearance sufficiently established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50678(U))
May 3, 2019
The insurer failed to establish timely mailing of the follow-up EUO notice for the first cause of action. To obtain summary judgment on a provider's EUO nonappearance, an insurer must show two duly demanded EUOs, two failures to appear, and a timely denial. The insurer satisfied those requirements for the second cause of action, but the record did not establish compliance with 11 NYCRR 65-3.6 (b) for the first. It therefore failed to show that its defense to the first claim was not precluded. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the second cause of action and affirmed denial of dismissal of the first.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50677(U))
May 3, 2019
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was granted, and dismissal was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's motion, finding the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The remaining arguments were unpreserved, meritless, or both.
JCC Med., P.C. v MVAIC (2019 NY Slip Op 50676(U))
May 3, 2019
MVAIC established that the notice to make claim was untimely, leaving the assignor outside covered-person status. The provider appealed an order granting MVAIC summary judgment dismissing its assigned no-fault claims. The Appellate Term, Second Department, affirmed. Failure to timely file under Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2), so a condition precedent to seeking payment was unsatisfied. The provider failed to establish that leave to file a late notice had been obtained under Insurance Law § 5208 (c) or otherwise raise a triable factual issue.
Veraso Med. Supply Corp. v Victoria Fire & Cas. Co. (2019 NY Slip Op 50690(U))
May 3, 2019
The insurer's summary judgment dismissing the claims for failure to give accident notice within 30 days was affirmed. The dismissal rested on 11 NYCRR 65-1.1. The Appellate Term, Second Department, rejected the provider's sole argument concerning the insurer's denial-mailing practices and procedures, relying on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Healthway Med. Care, P.C. v MVAIC (2019 NY Slip Op 50692(U))
May 3, 2019
A provider must exhaust remedies against all potential insurance carriers before seeking no-fault benefits from MVAIC. Following a nonjury trial, Civil Court awarded judgment to the provider on its assigned claims. The Appellate Term, Second Department, reversed and remitted for entry of judgment in MVAIC's favor dismissing the complaint. Applying Hauswirth v American Home Assur. Co., the court found that the provider had not demonstrated exhaustion of its remedies and that its claim was therefore premature.
Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))
May 3, 2019
The insurer's motion for summary judgment dismissing the claims based on the assignor's failure to appear for IMEs was upheld. The Appellate Term, Second Department, affirmed, finding sufficient proof of proper mailing of the scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., rejecting the provider's challenges.