No-Fault Case Law
Alfa Med. Supplies v Eveready Ins. Co. (2011 NY Slip Op 52282(U))
December 16, 2011
The insurer's unrebutted peer review report established that the medical supplies lacked medical necessity. On the parties' summary judgment motions, the Civil Court found that the provider established its prima facie case and that the insurer timely denied the claim, leaving medical necessity as the sole trial issue. The insurer's affirmed report supplied a factual basis and medical rationale for the doctor's conclusion that the supplies were unnecessary. The provider did not rebut that showing or challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))
December 16, 2011
The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial. The Civil Court found that the provider established its prima facie case for assigned no-fault benefits but denied summary judgment, leaving the IME defense for trial. The claims representative's affidavit did not sufficiently establish timely mailing under the insurer's standard office practices and procedures. The insurer did not challenge the finding that the provider was otherwise entitled to judgment. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remitted for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and its implementing regulations.
Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))
December 16, 2011
The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear. An employee of the entity that scheduled the IMEs established mailing under its standard office practices and procedures. The insurer's litigation examiner similarly established timely mailing of the denials, and the examining chiropractor/acupuncturist attested to nonappearance. That proof established the insurer's entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's attorney affirmation raised no triable factual issue. The Appellate Term, Second Department, reversed, denied the provider's motion for summary judgment, and granted the insurer's cross motion dismissing the complaint, expressly declining to reach other issues.
Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U))
December 16, 2011
The insurer's cross motion for summary judgment on its IME nonappearance defense was denied because it did not establish mailing of the notices. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the insurer's affidavits insufficient to establish proper mailing of the IME scheduling letters in the provider's assigned no-fault action.
Psychology YM, P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52275(U))
December 16, 2011
The provider's action was premature because timely mailed verification requests remained unanswered when the action began. The insurer moved for summary judgment dismissing the assigned no-fault claims, and the provider cross-moved for summary judgment. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests under standard office practices and procedures. Because the provider had not responded before commencing suit, the insurer's time to pay or deny had not elapsed under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the action as premature and denying the provider's cross motion.
Precision Radiology Servs., P.C. v MVAIC (2011 NY Slip Op 52274(U))
December 16, 2011
MVAIC's summary judgment motion was granted because it established that the provider's action was commenced after the limitations period expired. The Appellate Term, Second Department, applied CPLR 203 (a) and found that the provider neither demonstrated timely commencement nor raised a factual issue. It reversed the judgment, vacated the underlying order, denied the provider's cross motion, and dismissed the complaint.
Allstate Social Work & Psychological Svcs, PLLC v NY City Tr. Auth. (2011 NY Slip Op 52278(U))
December 16, 2011
The provider's summary judgment motion was denied for failure to establish its prima facie entitlement to benefits. Its affidavit did not establish that the bills were untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, affirmed, relying on Ave T MPC Corp. v Auto One Ins. Co. and Westchester Med. Ctr. v Nationwide Mut. Ins. Co.
City Dental Servs., P.C. v New York Cent. Mut. (2011 NY Slip Op 52285(U))
December 16, 2011
A default declaratory judgment precluded the provider's sixth cause of action, but the insurer's peer review did not support dismissal of the fifth. The insurer obtained a declaration of no payment obligation for the incident after alleging a staged accident; the provider and relevant assignor were defendants. The provider alleged neither lack of notice nor steps to vacate its default. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the sixth cause of action. It affirmed denial of dismissal of the fifth because the peer review was insufficient. It also vacated the CPLR 3212 (g) findings establishing the provider's case on both causes; the provider failed to prove the fact and amount of loss on the fifth.
Mercury Cas. Co. v Encare, Inc. (2011 NY Slip Op 08969)
December 13, 2011
An insurer cannot avoid preclusion of a fee-schedule defense by treating excessive fees as a lack of coverage. The Appellate Division, First Department, affirmed dismissal of the insurer's complaint for failure to state a claim and denial of its cross motion for partial summary judgment. Under Insurance Law § 5106 and 11 NYCRR 65-3.8 (c), an untimely or otherwise defective denial precludes the challenge. The narrow lack-of-coverage exception concerns injuries that do not arise from an insured incident. Insurance Law § 5108's prohibition on fees exceeding the fee schedule did not justify expanding that exception and weakening preclusion.
All Is. Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 52227(U))
December 8, 2011
The insurer's doctor's testimony and peer review report established at trial that the services lacked medical necessity. In the provider's action for assigned no-fault benefits, the parties stipulated that medical necessity was the sole trial issue. At the nonjury trial, the insurer's doctor testified that the services were unnecessary, and the corresponding peer review report was admitted into evidence. The provider called no rebuttal witnesses. The Appellate Term, Second Department, found the insurer's proof sufficient and affirmed the judgment dismissing the complaint.