No-Fault Case Law
Lancer Ins. Co. v Fishkin (2022 NY Slip Op 06921)
December 7, 2022
The insurer established entitlement to a default judgment in its de novo action, and the provider failed to offer a reasonable excuse. After a master arbitrator confirmed an award for the provider, the insurer sued under Insurance Law § 5106 (c), alleging lack of medical necessity and accident-relatedness. Its proof of service under CPLR 308 (2), counsel's affirmation of default, verified complaint, affirmed peer review, and arbitration awards satisfied CPLR 3215 (f). The provider did not oppose the motion. The Appellate Division, Second Department, reversed the denial of leave to enter a default judgment and granted the insurer's motion; the provider's venue cross appeal became academic.
Matter of Wesco Ins. Co. v GEICO Indem. Co. (2022 NY Slip Op 06934)
December 7, 2022
The loaner vehicle insurer's petition to vacate the interinsurer no-fault arbitration award remained denied upon reargument. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, adhering to denial of vacatur and confirmation of reimbursement to the driver's insurer. The court relied on a companion appeal decided the same day and stated that the petitioning insurer failed to show actual or apparent arbitrator bias.
Concord Direct, Inc. v Ameriprise Ins. Co. (2022 NY Slip Op 51272(U))
December 2, 2022
The insurer failed to establish a material misrepresentation concerning a covered vehicle's garaging or a covered driver's address. The Appellate Term, Second Department, affirmed the Civil Court, Queens County, order denying the insurer summary judgment dismissing the provider's assigned no-fault claims. Neither the assignor's EUO testimony nor the policy declaration page established a misrepresentation in the insurance application. Following Interboro Ins. Co. v Fatmir, materiality required underwriting documentation showing that the insurer would not have issued the same policy had the correct information been disclosed. The underwriting eligibility guidelines submitted with the motion did not make that showing, so the insurer failed to establish materiality in any event.
NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))
December 2, 2022
The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting summary judgment dismissing the first, fifth and seventh causes of action. The fifth and seventh claims were denied within 30 days of receipt. An initial EUO had been scheduled before receipt of the first claim, so the time to pay or deny that claim was tolled upon receipt. The insurer timely scheduled a follow-up EUO after the initial nonappearance, continuing the toll under 11 NYCRR 65-3.6 (b). Its denial within 30 days of the second nonappearance was therefore timely.
Spring Rehab, P.T., P.C. v Hereford Ins. Co. (2022 NY Slip Op 51270(U))
December 2, 2022
The insurer's letters did not establish proper verification requests, and the provider also failed to establish entitlement to summary judgment. The Appellate Term, Second Department, modified the Civil Court, Kings County, order to deny the insurer's cross motion, while leaving denial of the provider's motion intact. The insurer claimed that the action was premature because verification remained outstanding. Its letters for the fourth cause of action were addressed to another provider; the remaining letters merely stated that documents were awaited without actually requesting verification from the plaintiff. The provider's proof did not establish that the claims were untimely denied or that timely denials were conclusory, vague or without merit as a matter of law.
Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))
December 2, 2022
The defendant claims handler established that it had issued no automobile policy covering the accident and owed no no-fault coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted its cross motion for summary judgment dismissing the provider's complaint. The record showed that the vehicle was owned and self-insured by a rental company, while the defendant only processed claims on that company's behalf. The Civil Court, Kings County, had denied dismissal based on a perceived factual issue concerning the limitations period. The appellate court also explained that CPLR 213 (2)'s six-year contract period applies to claims against insurers, whereas CPLR 214 (2)'s three-year period would govern any claims accruing against the self-insurer upon submission of bills.
Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))
December 2, 2022
The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. An affidavit describing standard office practices and procedures established timely mailing of the scheduling letters and denial forms. Affidavits from the attorneys scheduled to conduct the EUOs, together with certified transcripts of their statements of nonappearance, sufficiently established the assignor's nonappearances. The insurer thus demonstrated prima facie entitlement to summary judgment on its EUO defense, and the provider failed to raise a triable issue in opposition.
American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 51267(U))
December 2, 2022
The provider's action was premature because the insurer timely requested verification and had not received the requested materials. 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 without prejudice. The insurer's proof established timely mailing of both initial and follow-up verification requests and nonreceipt of the verification. The provider raised no triable issue in opposition. Following Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., the outstanding verification required dismissal without prejudice.
Medical Supply of NY Corp. v Nationwide Ins. Co. (2022 NY Slip Op 51253(U))
December 2, 2022
The provider's claims were barred by res judicata because the insurer established that they concerned the accident covered by a prior declaration. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for, in effect, summary judgment dismissing the complaint. A prior unopposed summary judgment order in the Supreme Court, Onondaga County, declared no reimbursement obligation to the provider for the August 22, 2018 accident under the same claim number. The provider's complaint alleged an August 24, 2018 accident, but all documentary evidence created by persons with personal knowledge identified August 22. The complaint's contrary allegation lacked personal knowledge and did not raise a factual issue concerning whether the claims arose from the same transaction.
First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))
December 2, 2022
The insurer's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion. Rejecting the provider's sole appellate contention, it found the claims specialist's and mailing manager's affidavits sufficient to establish timely denial and found no triable issue in opposition.