No-Fault Case Law
Arco Med. NY, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51800(U))
December 17, 2014
The insurer's summary judgment motion was denied as to the appealed claim because medical necessity presented a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the providers' action for assigned no-fault benefits. The appeal was limited to one provider's claim, and the court relied on its review of the record and Zuckerman v City of New York.
LMS Acupuncture, P.C. v Eveready Ins. Co. (2014 NY Slip Op 51799(U))
December 17, 2014
The insurer proved full fee schedule payment for acupuncture claims, but medical necessity remained a factual issue on another claim. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion on the claim denied for lack of medical necessity, while affirming dismissal of the fee schedule claims and denial of the provider's motion. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer adequately demonstrated full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors. The provider raised no triable issue in response. The remaining claim required resolution of a factual issue concerning medical necessity, precluding its summary dismissal.
Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 51798(U))
December 17, 2014
The provider's objections to EUO requests were not heard because it did not claim to have responded to the requests. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's summary judgment motion based on the provider's EUO nonappearances. The provider argued that the scheduling letters inadequately explained why EUOs were requested. Its failure to claim any response barred those objections. Alternatively, the letters adequately advised that the EUOs would concern, among other subjects, eligibility for reimbursement of assigned no-fault benefits. The provider's remaining contentions were raised for the first time on appeal and were not properly before the court.
Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))
December 17, 2014
The insurer established timely EUO requests, the assignor's nonappearance, and a timely denial based on that failure. In the provider's action for assigned no-fault benefits, the insurer showed that timely mailed EUO scheduling letters tolled its time to pay or deny the claim and that the assignor missed both properly scheduled EUOs. Because the provider did not claim that the assignor had objected to the reasonableness of the requests, its objections were not heard. An assignor's EUO appearance is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Island Chiropractic Testing, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51795(U))
December 17, 2014
The provider's verification responses presented a factual dispute that precluded summary judgment for either party. The insurer sought dismissal of the assigned no-fault action as premature, and the provider cross-moved for summary judgment. The insurer demonstrated timely mailing of initial and follow-up verification requests, but the record presented a triable issue as to whether the provider adequately responded. A claim need not be paid or denied until all demanded verification is supplied, and an action is premature when the provider fails to respond. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and otherwise affirmed, leaving the denial of the insurer's motion intact.
Right Solution Med. Supply, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51793(U))
December 17, 2014
The provider's summary judgment award on the fourth cause of action was reversed because verification responses remained disputed. The Appellate Term, Second Department, denied that branch of the provider's motion and affirmed denial of the insurer's cross motion to dismiss the complaint as premature. It relied on a triable issue concerning the sufficiency of the responses.
MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U))
December 17, 2014
The assignor's EUO nonappearance was not excused by apparent nondelivery of certified notices where first-class mailing was unrebutted. The insurer proved timely mailing of EUO scheduling and follow-up letters by both first-class and certified mail, timely mailing of denials, and nonappearance through certified EUO transcripts. The provider claimed no response to the requests and raised no triable issue. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the insurer established entitlement to judgment. Tracking information suggesting nondelivery of the certified copies did not establish insufficient first-class mailing. The Appellate Term, Second Department, reversed both orders, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))
December 17, 2014
The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment. Its claims administrator's affidavit described placement in a mail bin and pickup by an outside mailing service, but gave no personal knowledge or description of that service's procedures to ensure timely, proper delivery. An affidavit from the mailing service submitted in reply did not cure the deficiency. The peer review acupuncturist also supplied insufficient facts or medical rationale; the assignor's subjective report of feeling worse after three months did not alone eliminate factual issues concerning medical necessity. The Appellate Term, First Department, reversed the order, insofar as appealed from, and reinstated the disputed claim.
Central Radiology Servs., P.C. v MVAIC (2014 NY Slip Op 24402)
December 17, 2014
MVAIC's lack-of-coverage defense based on an assignor's residency is not precluded by an untimely denial. The provider obtained judgment on an agreed statement of facts after the Civil Court treated MVAIC's failure to timely deny or properly seek verification as precluding its defense. Under Insurance Law §§ 5221 (b) (2) and 5202 (b), an injured person must be a qualified person, including a New York resident, to obtain coverage. The stipulation did not establish whether the notice of intention to make claim was sworn or reflected residency. The Appellate Term, Second Department, reversed the judgment and remitted for a more definite stipulation or trial on that issue; it dismissed the appeal from the decision under CCA 1702.
AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. (2014 NY Slip Op 51794(U))
December 17, 2014
The insurer's IME scheduling letters complied with the No-Fault Regulations, warranting summary judgment dismissing the provider's complaint. The provider sought assigned first-party no-fault benefits, and the insurer moved to dismiss based on the assignor's failure to appear for duly scheduled IMEs. Civil Court denied both parties' summary judgment motions and limited trial to the propriety of the scheduling letters. Applying 11 NYCRR 65-3.5 (e), the Appellate Term, Second Department, found the letters compliant. Because the provider did not challenge the finding that the insurer was otherwise entitled to judgment, it reversed the order, insofar as appealed from, and granted the insurer's motion.