No-Fault Case Law
Allstate Ins. Co. v Nalbandian (2011 NY Slip Op 07785)
November 1, 2011
An insurer may obtain de novo adjudication when a master arbitrator's award in the provider's favor exceeds $5,000. The insurer invoked Insurance Law § 5106 (c), but Supreme Court denied its summary judgment motion, granted the provider's cross motion and confirmed the award because it was not arbitrary and capricious. Once de novo review was properly invoked, that inquiry became academic. The Appellate Division, Second Department, reversed, denied confirmation as academic and remitted for consideration of the merits of the insurer's motion and the provider's requests for dismissal and judgment on counterclaims. The insurer prevailed on its right to de novo adjudication; the court did not reach its remaining contentions.
Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 52023(U))
October 28, 2011
A no-fault policy is construed to contain the mandatory EUO provision even if the policy omits it. The Civil Court dismissed the provider's assigned-benefits complaint under CPLR 3211 (a) (7) for failure to appear for two EUOs. The provider's sole appellate argument was that the insurer had not proved the policy contained an EUO provision. The mandatory personal injury endorsement under 11 NYCRR 65-1.1 (b) required that provision for the policy covering this accident. Even if omitted, it would be incorporated under Insurance Law § 5103 (h). The Appellate Term, Second Department, rejected the provider's argument and affirmed the judgment dismissing the complaint.
Comfort Supply, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52018(U))
October 28, 2011
The insurer proved notice of the accident came more than 30 days afterward, and the provider offered no proof excusing the delay. The claims employee established timely mailing of the denial and that the insurer first learned of the accident upon receiving an NF-2. The provider merely speculated that the insurer had earlier notice. Although the denial advised of the opportunity to submit written proof giving clear and reasonable justification under 11 NYCRR 65-1.1 and 11 NYCRR 65-2.4 (b), the provider supplied no evidence it used that opportunity. 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.
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 21390)
October 28, 2011
The insurer justified bank and tax discovery, but the provider's remaining responses were sufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, to limit compelled disclosure to bank statements, canceled checks, income and payroll tax records, and W-2 or 1099 forms, followed by the owner's deposition. Detailed licensing concerns under Mallela established materiality and special circumstances under CPLR 3101 (a). The court affirmed striking the action from the trial calendar because the certificate of readiness misstated that discovery was complete despite outstanding documents and the owner's failure to appear for a deposition. Considering the insurer's untimely motion was within the Civil Court's discretion under CPLR 2004 and 22 NYCRR 208.17 (c), given the minimal delay.
Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))
October 27, 2011
The provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary. The insurer appealed denial of the branch of its cross motion seeking summary judgment on a specified group of assigned no-fault claims. Its sworn IME report set out the examining chiropractor's determination that those services lacked medical necessity. The provider's opposing affidavit did not rebut the report's conclusions, and the provider did not dispute the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those claims.
Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))
October 27, 2011
The insurer's peer review report raised a triable issue of medical necessity and defeated the provider's summary judgment motion. In this action for assigned no-fault benefits, the Civil Court denied both parties' motions and limited trial to medical necessity under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. Consideration of the insurer's untimely cross motion was discretionary because the provider opposed it and showed no prejudice. The appellate court declined to search the record and grant the insurer summary judgment.
Trimed Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52014(U))
October 27, 2011
The insurer's unrebutted peer review established that the supplies lacked medical necessity and warranted summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the provider's action for assigned no-fault benefits. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusion. The provider did not challenge the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claim on that ground. Following Urban Radiology, the appellate court rejected the provider's argument that dismissal was unwarranted because it lacked the documents relied upon by the peer reviewer.
Van Courtland Med. Care, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52013(U))
October 27, 2011
The insurer's unrebutted peer review established lack of medical necessity and warranted dismissal of the claim at issue on appeal. The provider sued to recover assigned no-fault benefits, and the insurer appealed only the denial of summary judgment on one claim. The affirmed peer review supplied a factual basis and medical rationale for the doctor's conclusion that the services were unnecessary. The provider did not challenge the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied that claim on medical necessity grounds. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing that claim.
Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))
October 27, 2011
The insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims. The provider's sole appellate argument was that the insurer had not proved those failures to appear. The affidavit of the investigator responsible for conducting the EUOs established that the assignor missed the scheduled examinations. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, appearance at an EUO is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, treated the appeal as one from the judgment under CPLR 5512 (a) and affirmed the judgment entered upon denial of the provider's motion and grant of the insurer's cross motion.
Queens Brooklyn Med. Rehab, P.C. v Allstate Ins. Co. (2011 NY Slip Op 52010(U))
October 27, 2011
The insurer established special circumstances warranting disclosure of the provider's tax documents concerning licensing eligibility. In an action for assigned no-fault benefits, the insurer moved to strike the provider's notice of trial, and the Civil Court granted the motion to the extent of compelling production of certain tax documents. The insurer supplied detailed and specific reasons to believe the provider failed to satisfy applicable state and local licensing requirements under 11 NYCRR 65-3.16 (a) (12) and Mallela. Those papers justified disclosure under CPLR 3101. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining the insurer's entitlement to the requested documents.