No-Fault Case Law
All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 22307)
October 23, 2012
A provider that delays suit beyond 30 days after receiving a denial resumes accruing interest upon completed service under CCA 412. The provider sought interest from filing, while the insurer argued that service controlled. The Civil Court, Kings County, resolved the interest issue in the insurer's favor, although the insurer conceded the provider's entitlement to judgment. Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 govern no-fault interest rather than the CPLR interest provisions. The court held that the toll under 11 NYCRR 65-3.9 (c) did not displace CCA 412, which required completed service of a summons bearing the actual index number before interest resumed.
Jamhil Med., P.C. v Tri-State Consumer Ins. Co. (2012 NY Slip Op 52049(U))
October 18, 2012
The insurer's motion to vacate an unopposed summary judgment order was denied for failure to show a reasonable excuse. The Appellate Term, Second Department, affirmed, finding no abuse of discretion under CPLR 5015 (a) because the insurer did not justify its failure to submit written opposition to the provider's motion for assigned no-fault benefits.
W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))
October 18, 2012
The provider's third-party objection to IME requests failed because the letters clearly stated they were sent on the insurer's behalf. The provider appealed summary judgment dismissing four claims for assigned no-fault benefits based on the assignor's failure to appear for IMEs. Its argument that the assignor need not respond to requests from a third party lacked merit in light of the scheduling letters' express identification of the insurer. The Appellate Term, Second Department, deemed the appeal taken from the subsequent judgment under CPLR 5501 (c) and affirmed the dismissal of that portion of the complaint.
RJA Physical Therapy, P.C. v Geico Cas. Co. (2012 NY Slip Op 52047(U))
October 18, 2012
The insurer's severance motion was warranted because claims involving seven assignors and six accidents raised few common issues of law or fact. The provider brought one action for assigned no-fault benefits, and the insurer sought seven separate actions under CPLR 603. The denial grounds varied among the claims, including IME nonappearance, lack of coverage, and untimely submission of claim forms. Those differences supported severance under Radiology Resource Network, P.C. v Fireman's Fund Ins. Co. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted severance of each assignor's claims into a separate action.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)
October 17, 2012
An insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim. The provider's claim forms identified the treating professionals as independent contractors. Under 11 NYCRR 65-3.11 (a), a professional corporation cannot recover assigned benefits for services rendered by independent contractors rather than its owners or employees. However, following Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., the defense concerns standing, not absence of coverage, and requires timely denial under Insurance Law § 5106 (a). The Appellate Division, Second Department, reversed the Appellate Term's order and Civil Court judgment and denied the insurer's summary judgment motion. The court left pleading waiver and fraudulent misrepresentation unresolved and declined to address alleged claim-form errors.
W.H.O. Acupuncture, P.C. v Infinity Ins. Co. (2012 NY Slip Op 51965(U))
October 16, 2012
Common-law retroactive rescission of a Connecticut automobile policy does not defeat innocent third-party victims' rights. The policy was issued in Connecticut to an insured who purportedly resided there for a vehicle purportedly garaged there; its only New York connection was the assignors' accident in New York. Connecticut law therefore controlled under New York conflict-of-law rules. Following Munroe v Great American Ins. Co., the insurer's common-law rescission right did not survive Connecticut's automobile insurance statutes as to innocent third parties. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's rescission-based cross motion; the provider's prima facie showing was unchallenged.
Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))
October 16, 2012
The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue. An employee of the entity scheduling the IMEs established mailing through its standard office practices. The examining physician affirmed that the assignor failed to appear, and the insurer's litigation examiner established timely mailing of denial forms. This proof established entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's attorney affirmation and billing manager's affidavit did not create a factual dispute. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51954(U))
October 16, 2012
The insurer established IME nonappearance, the sole issue left for trial on the provider's third through sixth causes of action. The affidavit of the medical professional scheduled to conduct the acupuncture/chiropractic IMEs established that the assignor failed to appear. The provider did not cross-appeal from the Civil Court's limitation of the trial issue to nonappearance, which effectively found the insurer otherwise entitled to judgment on those causes of action. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's summary judgment motion dismissing the third, fourth, fifth, and sixth causes of action.
Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))
October 16, 2012
An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy. The Civil Court limited the trial issue to whether the assignor failed to appear for scheduled IMEs. The insurer submitted an affidavit from an employee of its scheduling entity and affirmations from the physicians who were to conduct the examinations, establishing nonappearance. The provider submitted only counsel's affirmation and raised no triable issue; it also did not challenge the finding that the insurer was otherwise entitled to judgment. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co. (2012 NY Slip Op 22301)
October 16, 2012
The provider was not bound by a declaratory judgment against its assignor because the assignment preceded that action. The insurer obtained a declaration that it owed no coverage based on the assignor's alleged misrepresentation of residence, then sought summary judgment dismissing the provider's dental-services claim. The provider had neither been named nor served in the declaratory judgment action and was not then in privity with the assignor. It otherwise lacked a full and fair opportunity to defend its interests. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, following Gramatan Home Invs. Corp. v Lopez and Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co.