No-Fault Case Law
Five Boro Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 51656(U))
August 24, 2012
The provider's claim was untimely because it missed the 45-day submission deadline and did not establish written justification for the delay. It was undisputed that 11 NYCRR 65-1.1 required submission to MVAIC within 45 days after the services were rendered and that the provider failed to comply. MVAIC's denial advised that written justification could excuse the delay, as required by 11 NYCRR 65-3.3 (e). The provider's opposition did not establish that it supplied such justification. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion; remaining contentions were either improperly raised for the first time on appeal or without merit.
Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51649(U))
August 23, 2012
An insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim. The insurer acknowledged receiving the provider's two claims, and neither was paid or denied within 30 days. Its letters merely advised that it was investigating and obtaining verification, including EUOs. Under Nyack Hosp. v Encompass Ins. Co., those letters did not toll the deadline. The insurer therefore failed to establish timely denials or that its medical-necessity defense was not precluded. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer's summary judgment cross motion, and denied that cross motion.
WJ Acupuncture, P.C. v Nationwide Mut. Ins. (2012 NY Slip Op 51648(U))
August 23, 2012
The insurer failed to establish that the providers were parties to, or in privity with a party to, an earlier arbitration. Two providers' consolidated no-fault actions were dismissed at the outset of a nonjury trial on collateral-estoppel grounds. The insurer relied on an award finding that a third provider had not established timely notice within 90 days under former 11 NYCRR 65.11 (m) (2). Collateral estoppel applies only against a party or privy to the earlier proceeding, and the required relationship was not demonstrated. The Appellate Term, Second Department, reversed the judgment, vacated the dismissal order, denied the insurer's motion, and remitted the matter for further proceedings.
Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))
August 23, 2012
The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports. The insurer sought summary judgment dismissing an action for assigned no-fault benefits based on lack of medical necessity. Its two affirmed peer review reports supplied a factual basis and medical rationale for that defense, but the provider's opposing medical affidavit demonstrated a question of fact. The provider conceded that the denials were timely, leaving medical necessity as the sole issue on appeal. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Quality Health Prods. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51645(U))
August 23, 2012
The provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production. The provider certified that discovery was complete despite unanswered demands. The insurer's motion to vacate was timely under CPLR 2103 (b), (c) and 22 NYCRR 208.17 (c). The provider also failed to challenge the CPLR 3120 demand within the time prescribed by CPLR 3122, limiting objections to palpably improper or privileged matters; neither exception was asserted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, vacating the notice, compelling responses to all outstanding demands, and denying the provider's summary judgment motion as premature.
Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))
August 23, 2012
The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters. The chiropractor/acupuncturist designated to perform the IMEs established nonappearance, and the insurer's claims examiner demonstrated timely denial on that ground. This proof entitled the insurer to summary judgment dismissing the assigned no-fault action. 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.
Biddle v Safeco Ins. Co. (2012 NY Slip Op 51642(U))
August 23, 2012
The insurer failed to prove timely denial because its claims representative's affidavit was not evidence in admissible form. The insurer sought summary judgment dismissing the provider's assigned no-fault claim based on the assignor's alleged misrepresentation of residence when the policy was issued. The provider challenged the affidavit's admissibility under Real Property Law § 299-a (1). Without admissible proof of a timely denial, the insurer did not establish that its residence-misrepresentation defense was not precluded. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment.
Quality Health Prods. v Country-Wide Ins. Co. (2012 NY Slip Op 51641(U))
August 23, 2012
The provider's action was premature because timely verification requests remained unanswered when the action began. The insurer's litigation supervisor established timely mailing of initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). The insurer showed that it had not received the requested verification, and the provider failed to show that it had supplied it before commencing suit. Accordingly, the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Village Chiropractic v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51640(U))
August 23, 2012
The treating chiropractor's affidavit raised a triable issue as to the medical necessity of the provider's services. The insurer appealed the denial of its motion for summary judgment dismissing the action for assigned no-fault benefits. Following Ozone Park Chiropractic v Clarendon Natl. Ins. Co., the court found no basis to disturb the denial because the provider's medical evidence demonstrated a factual dispute. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U))
August 23, 2012
The insurer's cross motion for summary judgment based on lack of medical necessity was denied for failure to prove timely denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on the insufficiency of the insurer's affidavit. The insurer had not demonstrated that its medical-necessity defense was not precluded.