No-Fault Case Law
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50201(U))
February 8, 2017
Untimely objections to discovery demands leave a provider obligated to respond unless the requested information is palpably improper or privileged. The provider failed to challenge the insurer's demands within the time prescribed by CPLR 3122 (a), and did not establish either exception. After an order directing responses within 60 days, the provider instead served a notice of trial and later submitted responses consisting primarily of objections. The insurer sought dismissal under CPLR 3126 or alternative relief. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, requiring responses to enumerated demands within another 60 days and providing for dismissal upon defense counsel's affirmation of noncompliance.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50199(U))
February 8, 2017
The insurer established timely mailing of the EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In this action for assigned no-fault benefits, Civil Court denied the insurer's summary judgment motion because it found a factual issue concerning the provider's appearance. The insurer's submissions established noncompliance with a condition precedent to coverage and timely denial on that ground, and the provider failed to raise a triable issue. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint.
Island Life Chiropractic, P.C. v Infinity Group (2017 NY Slip Op 27040)
February 8, 2017
The insurer failed to show that policy rescission under Pennsylvania law defeated the assignor's claim as an innocent third party. The provider sought assigned no-fault benefits, and the insurer obtained summary judgment based on rescission of the automobile policy from inception. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, Pennsylvania recognizes a common-law right of rescission but protects innocent third parties injured without fault. The insurer submitted no facts tending to show that the assignor was anything other than an innocent third party. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Alleviation Med. Servs., P.C. v Hertz Co. (2017 NY Slip Op 50210(U))
February 8, 2017
The defendant established an excusable default and a meritorious defense based on a prior declaratory judgment barring the provider's claims. Counsel's illness and substitute counsel's accident-related delay excused the missed calendar call under CPLR 5015 (a) and CPLR 2005. The court took judicial notice of a Supreme Court order declaring no obligation to pay benefits arising from the accident and permanently staying the provider's no-fault claims, although the defendant had not annexed it to its motion. Default judgments can have res judicata effect. The Appellate Term, Second Department, reversed, vacated the default order, dismissed the provider's summary judgment motion, permanently stayed the action and remitted for determination of the remaining branches of the defendant's motion.
Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)
February 7, 2017
The insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines. The Appellate Division, First Department, reversed the order and judgment, insofar as appealed from, vacated the judgment, and denied the insurer's summary judgment motion for a declaration of no obligation to pay the providers. Although nonappearance at a properly noticed EUO breaches a coverage condition under 11 NYCRR 65-1.1, the insurer supplied neither completed verification forms nor evidence of their receipt dates, and did not assert that none were received. It therefore failed to show that 11 NYCRR 65-3.5 (b) and 65-3.6 (b) were inapplicable or satisfied. The providers' remaining contentions were not reached.
Renelique Med. Servs., P.C. v State Farm Fire & Cas. Co. (2017 NY Slip Op 50163(U))
February 3, 2017
The insurer's attorney affirmation based on personal knowledge established the provider's failure to attend scheduled EUOs. The insurer sought summary judgment dismissing the assigned no-fault claims, supporting its motion with a law-firm partner's affirmation attesting to the nonappearances. The provider cross-moved to disqualify the firm under rule 3.7 of the Rules of Professional Conduct, 22 NYCRR 1200.0, asserting that a firm member was a necessary witness. The Appellate Term, Second Department, rejected the provider's sole challenge to the nonappearance proof and upheld denial of disqualification for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. It affirmed the order granting the insurer summary judgment and denying the provider's cross motion.
St. Barnabas Hosp. v Government Empls. Ins. Co. (2017 NY Slip Op 27056)
February 1, 2017
A hospital's claim was premature because it failed to verify which charges covered necessary emergency health services. The Supreme Court, Nassau County, denied the hospital's summary judgment motion, granted the insurer's cross motion, and dismissed the complaint. Proof of the patient's intoxication entitled the insurer to request a breakdown of services through stabilization under Insurance Law § 5103 (b) (2), Insurance Department Circular Letter No. 4, and 11 NYCRR 65-3.5 (c). The hospital's assertion that emergency services were provided during admission did not identify the covered portion. Its inadequate response to the initial request and failure to answer the timely follow-up tolled the 30-day payment or denial period under 11 NYCRR 65-3.6 (b) and 65-3.8 (a) (1).
Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))
January 20, 2017
The insurer established full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services. The provider sought assigned no-fault benefits for acupuncture treatments. The insurer's litigation examiner's affidavit and supporting exhibits established payment in accordance with the applicable schedules for the earlier services, following Great Wall Acupuncture, P.C. v Geico Ins. Co. Its expert's sworn IME report established lack of medical necessity for the remaining services, which the insurer had timely denied. The provider raised no triable issue on either defense. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Exon Med. Equip., Inc. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50117(U))
January 20, 2017
The insurer's summary judgment dismissing the provider's claims for failure to provide requested verification was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, Advantage Radiology P.C. v Nationwide Mut. Ins. Co., No. 2015-2123 S C, without supplying independent reasoning.
Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))
January 20, 2017
The provider failed to establish its prima facie case, and the insurer failed to prove two missed EUOs. The provider did not show that the insurer failed to deny within 30 days or issued a timely denial that was conclusory, vague or meritless under Insurance Law § 5106 (a). The insurer's submissions showed several EUOs rescheduled at the assignor's attorney's request and one unrescheduled nonappearance, but did not establish two missed, duly scheduled EUOs. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion and denied that motion, while sustaining denial of the insurer's cross motion to dismiss. It passed on no other issue.