No-Fault Case Law
Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149)
June 4, 2012
A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact. The insurer sought dismissal because leases and management agreements remained outstanding; the provider had supplied corporate documents and challenged the remaining demands. Applying 11 NYCRR 65-3.2 (c), 65-3.5 (c), and Mallela, the District Court, Nassau County, required an articulated, good-faith factual basis for seeking corporate-ownership material. The insurer's asserted grounds did not withstand scrutiny, and its summary judgment motion was denied, without precluding a Mallela defense or declaratory judgment action supported by good faith. The provider's cross motion was also denied because it failed to establish that its claim documents were business records under CPLR 4518 (a).
Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)
May 30, 2012
The provider proved receipt of its bill and nonpayment or denial within 30 days; the insurer failed to raise a triable issue. The certified mail receipt and signed return receipt card created a presumption of receipt that the insurer's mere denial did not rebut. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), failure to respond within 30 days precluded defenses based on untimely notice of the accident or proof of claim. Although lack of coverage remained available despite the late denial, the insurer's submissions did not raise a triable issue on that defense. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the provider's motion for summary judgment.
Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co. (2012 NY Slip Op 50950(U))
May 29, 2012
The provider failed to rebut presumed receipt of verification requests because its affidavit did not show anyone checked its computer records. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion and dismissed the complaint. The insurer established proper mailing of its verification letters. The provider's billing supervisor described general procedures for recording receipt but supplied no facts showing that anyone checked the computer system for those letters. The affiant's asserted status as custodian of the case file, without more, did not overcome the presumption of receipt under Nassau Ins. Co. v Murray or raise a material issue requiring trial.
W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2012 NY Slip Op 22142)
May 25, 2012
Under Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation. Applying the grouping-of-contacts analysis, the Appellate Term, Second Department, found Florida law controlling, as the parties agreed. Florida Statutes § 627.409 permitted retroactive rescission independently of the cancellation procedures in Florida Statutes § 627.728. The insurer nevertheless had to give the insured notice and return or tender all premiums within a reasonable time after discovering the grounds for rescission. Its affidavit, rescission letter, and endorsed premium-refund checks established compliance. The provider raised no triable issue concerning the rescission's validity. The court affirmed the judgment dismissing the provider's assigned no-fault claim on the insurer's summary judgment motion.
21st Century Advantage Ins. Co. v Cabral (2012 NY Slip Op 51086(U))
May 24, 2012
The insurer established grounds for a preliminary injunction against no-fault suits and arbitrations arising from allegedly fraudulent policies. Its investigator's affidavit and verified complaint provided specific facts supporting likely success on fraudulent-procurement claims. A deliberate collision furthering insurance fraud is not a covered accident. Multiple proceedings and possible inconsistent outcomes established irreparable injury and favorable equities. The Supreme Court, Nassau County, applied CPLR article 63 because CPLR 2201 concerns stays in the motion court, and continued restraints on pending and future proceedings during the action. Relief required an undertaking under CPLR 6312 (b) within 20 days. The court denied the provider's CPLR 3211 (a) (4) dismissal request because its reimbursement action lacked sufficient identity, denied severance because common issues favored one trial, and granted unopposed leave to answer late.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 50934(U))
May 15, 2012
An insurer need not attach the medical records reviewed by its peer reviewer to its summary judgment motion. The Appellate Term, Second Department, affirmed the judgment dismissing the provider's assigned no-fault claims after denial of the provider's motion and grant of the insurer's cross motion. The Civil Court had found timely denials based on lack of medical necessity and no rebuttal of the insurer's evidence. The appellate court rejected the provider's objection to the absence of underlying medical records. It also rejected the challenge to the report's electronically stamped facsimile signature because the record showed that the chiropractor who performed the review had permissibly placed the signature on the report.
Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))
May 15, 2012
The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion. An employee of the scheduling entity established timely mailing of the IME letters, and the insurer's claims employees established timely mailing of the denials. Affirmations from the examining physician, chiropractor and acupuncturist established nonappearance. This proof entitled the insurer to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider submitted only counsel's affirmation in opposition, which failed to raise a triable issue of fact.
Med-Tech Prod., Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 50930(U))
May 15, 2012
The provider's third and sixth causes of action were premature because requested verification remained outstanding when suit began. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing those causes of action. The claims examiner's affidavit established timely mailing of verification requests and follow-up requests and the provider's failure to respond. In opposition, the provider did not demonstrate that it had supplied the requested verification before commencing the action. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny those claims therefore had not begun to run.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51013(U))
May 14, 2012
An insurer seeking summary judgment on medical necessity need not attach the medical records reviewed by its peer reviewer. The Civil Court, Kings County, found that the insurer timely denied the claims as medically unnecessary and that the provider failed to rebut the insurer's evidence. It denied the provider's motion and granted the insurer's cross motion dismissing the complaint. Following Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. and Urban Radiology, P.C. v Tri-State Consumer Ins. Co., the Appellate Term, Second Department, rejected the provider's objection to the absence of the underlying records, rejected its remaining contentions and affirmed the dismissal judgment.
Eastern Star Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51010(U))
May 14, 2012
The insurer established full fee-schedule payment for four acupuncture claims and lack of medical necessity for a fifth. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. Claims employees' affidavits established timely mailing of the denials and proper use of the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The insurer had paid the allowable amounts on the second through fifth causes of action before suit. A sworn peer review supported denial of the first cause of action, and the treating acupuncturist's affidavit failed meaningfully to address or rebut its conclusions.