No-Fault Case Law
Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51645(U))
November 16, 2018
The insurer's cross motion for summary judgment on the fee-schedule defense to claims billed under CPT codes 97810 and 97811 was granted on appeal. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, insofar as appealed from, and dismissed those claims for the reasons stated in the companion appeal decided the same day, No. 2016-1377 K C.
Island Life Chiropractic, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51644(U))
November 16, 2018
The provider's owner's affidavit raised a triable issue whether the claim was submitted within 45 days of the services rendered. The insurer sought summary judgment based on late submission under 11 NYCRR 65-1.1. The Civil Court, Kings County, denied the motion but found under CPLR 3212 (g) that the denial was timely and proper, leaving claim-submission timeliness for trial. The Appellate Term, Second Department, rejected the insurer's sole appellate argument that the opposing affidavit was insufficient. It affirmed the order, insofar as appealed from, leaving the provider's action pending because the insurer had not established late submission as a matter of law.
Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))
November 16, 2018
The insurer established full payment of CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture. The provider sought additional no-fault reimbursement for the billed services. The insurer's proof established presumptively timely mailing of the denials and full payment under the applicable schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing the claims under those two billing codes.
Right Aid Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51641(U))
November 16, 2018
The provider's verification-mailing affidavit raised a triable issue whether its no-fault action was premature. The insurer sought summary judgment dismissing the assigned benefits complaint because requested verification remained outstanding and made a prima facie showing of nonreceipt. The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. That conflicting proof left a factual issue concerning prematurity. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order, insofar as appealed from, denying the insurer's motion and leaving the provider's action pending.
SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))
November 16, 2018
The insurer established proper mailing of IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. The provider challenged both showings on appeal from an order denying its summary judgment motion and granting the insurer's cross motion dismissing its assigned no-fault benefits complaint. The Appellate Term, Second Department, found the insurer's proof sufficient on mailing and nonappearance and affirmed the Civil Court, Kings County, order in the insurer's favor.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51634(U))
November 16, 2018
The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal decided the same day, No. 2016-428 K C.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51633(U))
November 16, 2018
The insurer's summary judgment dismissing the complaint on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal decided the same day, No. 2016-428 K C.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51632(U))
November 16, 2018
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. The provider challenged both the proof of its EUO nonappearances and the absence of objective reasons for the requests. The Appellate Term, Second Department, found the nonappearance proof sufficient. Under Interboro Ins. Co. v Clennon, the insurer need only establish two duly demanded EUOs, two failures to appear, and a timely denial of the claims. The appellate court affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the provider's assigned no-fault benefits complaint.
Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850)
November 16, 2018
An EUO nonappearance defense is subject to preclusion when the insurer fails to issue a timely denial. The Appellate Division, Fourth Department, reversed the judgment, insofar as appealed from, denied the insurers' summary judgment motion, and vacated declarations relieving them of payment obligations. Under Insurance Law § 5106 (a) and 11 NYCRR 65-1.1 (d), submission to a reasonably requested EUO is a condition of payment under an existing policy, rather than a condition of coverage's existence. Rejecting contrary First Department precedent, the court applied the narrow no-coverage exception described in Fair Price Med. Supply Corp. v Travelers Indem. Co. The claims specialist's conclusory affidavit, unsupported by denial forms, failed to establish timely and proper denials.
Jamaica Wellness Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 51637(U))
November 16, 2018
The self-insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, found timely mailing of EUO notices and denials and the provider's nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable factual issue.