No-Fault Case Law
Hammond v GMAC Ins. Group (2008 NY Slip Op 08396)
November 6, 2008
An injured claimant's burns from lighting gasoline-soaked clothing did not arise out of the use or operation of a motor vehicle. Gasoline spilled on the claimant's clothing while the claimant refueled a car. After reentering the vehicle and leaving the station, the claimant attempted to light a cigarette, igniting the gasoline. Insurance Law § 5102 (b) and § 5103 (a) (1) require the vehicle to be a proximate cause of the injury. The injuries would have occurred even without reentry into the vehicle, and their occurrence inside a moving car did not establish coverage. The Appellate Division, Third Department, affirmed the order denying the claimant's summary judgment motion and granting the insurer's cross motion for a declaration of no obligation.
Alur Med. Supply, Inc. v Progressive Ins. Co. (2008 NY Slip Op 52191(U))
November 5, 2008
A letter that neither demands nor requires a response is not a proper verification request and does not toll the denial period. The insurer opposed the provider's summary judgment motion by asserting that the assignor's delay in attending an EUO tolled its time to pay or deny. The Appellate Term, Second Department, found the relied-upon letter insufficient as a verification request. The 30-day period under 11 NYCRR 65-3.8 (c) therefore remained untolled, making the denial untimely and precluding the insurer's lack-of-medical-necessity defense under Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. The court affirmed the judgment awarding the provider summary judgment and passed on no other issue.
Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 52185(U))
November 5, 2008
Discovery supporting a precluded medical-necessity defense is palpably improper even without a timely objection. The provider failed to challenge document demands within CPLR 3122's deadline, limiting review to privilege or palpable impropriety. The insurer did not establish timely denials, so medical-necessity discovery was improper. Its detailed reasons to suspect fraudulent incorporation supported discovery on that nonprecluded defense under Mallela and CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel only specified documents, including incorporation, management and shareholder-license records, within 60 days, followed by a deposition within 30 days after production. The provider obtained a limitation of document discovery, while the insurer retained eligibility discovery and the deposition.
Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U))
November 5, 2008
An insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits. The insurer sought dismissal as premature, asserting that an application and completed assignment remained outstanding despite receipt of the hospital's NF-5 form. Under 11 NYCRR 65-3.5 (g), that completed form satisfied the application requirement. The insurer received the form, including an assignment, on October 6, 2005, but did not request assignment verification until December 23, 2005, failing to establish a timely request or entitlement to that verification. The Appellate Term, Second Department, affirmed summary judgment for the hospital and denial of the insurer's cross motion. Its business-record foundation challenge was unpreserved because first raised on appeal.
Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 28494)
November 5, 2008
An IME by a licensed psychologist can satisfy the mandatory no-fault endorsement's requirement of examination by a physician. The insurer sought summary judgment based on the assignors' IME and EUO nonappearances. Interpreting 11 NYCRR 65-1.1 (d), the Civil Court, Kings County, relied on an Insurance Department opinion allowing examination by a licensed health provider outside the treating provider's specialty. It rejected the contention that Education Law § 6522 restricted IMEs to physicians. The insurer's affidavits established mailing of initial and follow-up IME requests and denials, and the assignors' nonappearances. The court granted the insurer summary judgment dismissing the complaint without reaching the provider's objections to the EUO requests.
Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U))
November 5, 2008
The provider's claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted. The assignor was a passenger in the vehicle, and both the provider and assignor knew its driver and owner. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (7). On that motion, the inquiry was whether the provider had a cause of action, rather than merely whether it had stated one. The provider could assert a claim against MVAIC after exhausting its remedies against those parties.
Linden Med., P.C. v MVAIC (2008 NY Slip Op 52188(U))
November 5, 2008
An arbitration claim against MVAIC is governed by the three-year limitations period in CPLR 214 (2), rather than a six-year period. The Appellate Term, Second Department, found the arbitrator's application of a six-year period contrary to settled law. Neither party showed a verification request tolling the payment due date, and MVAIC's later denial did not postpone that date. Accrual did not depend on whether the assignor had been determined to be a qualified person. Finding the arbitration untimely, the court reversed the order, denied the provider's confirmation petition, and granted MVAIC's motion to vacate both the arbitrator's and master arbitrator's awards.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))
October 31, 2008
The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion. The Civil Court had denied the motion for failure to establish the provider's prima facie case. The Appellate Term, Second Department, found instead that the insurer's denial forms and claims representative's acknowledgment of receipt cured any deficiency in proof of mailing. The provider's affidavit also established admissibility of its claim forms under CPLR 4518, satisfying its prima facie burden under Insurance Law § 5106 (a). Nevertheless, the insurer's claims representative affidavit and affirmed peer review established proper, timely medical-necessity denials. The court affirmed denial of the provider's motion on those different grounds, favoring the insurer.
MD Imaging, P.C. v Progressive N. Ins. Co. (2008 NY Slip Op 28434)
October 31, 2008
A provider may obtain relevant medical records from an insurer upon supplying a valid assignment or authorization for disclosure. The radiology provider moved under CPLR 3124 to compel records concerning the scanned body parts and IME and peer-review reports. The insurer had produced its peer review and the materials reviewed, arguing that additional records could not prove the provider's prima facie case or be used by the insurer at trial. Applying CPLR 3101 (a), the City Court, Poughkeepsie, found the requested material could rebut the medical-necessity defense or assist cross-examination. Because no assignment was on file, it granted the motion conditioned on the insurer's receipt of the assignor's valid authorization.
Greater Health Through Chiropractic, P.C. v MVAIC (2008 NY Slip Op 52178(U))
October 31, 2008
MVAIC failed to establish that the vehicle the assignor was using or operating when injured was a motorcycle. It sought summary judgment on the ground that the assignor was ineligible for no-fault benefits, asserting that the injuries occurred while using or operating an owned motorcycle. Although motorcycle use or operation would make the assignor ineligible under Insurance Law § 5103 (a) and 11 NYCRR 65-1.1 (e), MVAIC's proof did not establish that the vehicle was a motorcycle under Vehicle and Traffic Law § 123. The Appellate Term, Second Department, affirmed denial of MVAIC's motion on that ground rather than the lower court's late-denial rationale.