No-Fault Case Law
Diagnostic Imaging of Rockville Ctr., PC v Kemper Independence Ins. Co. (2021 NY Slip Op 50238(U))
March 18, 2021
An unvacated default declaratory judgment can bar a provider's no-fault action under res judicata. After the provider commenced its assigned-benefits action, the insurer obtained a declaration in Supreme Court, New York County, that it owed no no-fault benefits to the provider or assignor arising from the collision at issue. The declaration was a conclusive final determination despite entry on default. A judgment for the provider would destroy or impair the insurer's rights established by that declaration. The Appellate Term, Second Department, reversed the order of the District Court, Suffolk County, denying the insurer's motion and granted summary judgment dismissing the complaint.
Pavlova v Nationwide Ins. (2021 NY Slip Op 50213(U))
March 12, 2021
An assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor. The Civil Court denied summary judgment because the insurer had not established representation, although it found that scheduling letters were mailed to the assignor at the NF-2 address and to a law firm. Counsel's affirmations and EUO transcripts established two nonappearances, and 11 NYCRR 65-3.5 (e) and 65-3.6 (b) required mailing to the assignor. The provider raised no triable issue and did not challenge the implicit CPLR 3212 (g) findings favoring the insurer. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Restorative Chiropractic Solutions, PC v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50209(U))
March 12, 2021
The insurer failed to establish material misrepresentation in procuring the policy because its underwriter's affidavit was missing. The assignor obtained a Florida policy but testified at an EUO that the assignor resided and principally garaged the vehicle in New York. The Civil Court, New York County, granted both summary judgment motions only to establish timely bills and denials and limit trial to the denials' bases. Under 11 NYCRR 65-3.5 (a) and (b), letters specifying that an EUO was required sufficiently tolled the payment deadline; mailing proof also showed notice to the provider and assignor. Materiality required proof that correct information would have prevented issuance. Counsel acknowledged omitting the referenced underwriter affidavit, leaving materiality for trial.
Physiodynamics, LLC v Allstate Ins. Co. (2021 NY Slip Op 50178(U))
March 5, 2021
The insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse. CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense, and the insurer's excuse was inadequate. The Appellate Term, Second Department, reversed the order granting vacatur of the judgment entered for the insurer's failure to appear or answer.
RX Warehouse Pharm., Inc. v 21st Century Ins. Co. (2021 NY Slip Op 50151(U))
February 26, 2021
An order granting entry of a default declaratory judgment can bar relitigation when identity of issue and opportunity to contest are present. The provider defaulted in the insurer's declaratory action, admitting the allegations concerning the staged nature of the collision. The Civil Court denied the insurer summary judgment because the default order made no coverage declarations and found a later judgment inapplicable. The Appellate Term, Second Department, held that the default order itself barred the provider's assigned-benefits action under res judicata: recovery would impair rights established by that order. It reversed, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Schottenstein Pain & Neuro, PLLC v Travelers Indem. Co. of Conn. (2021 NY Slip Op 50156(U))
February 26, 2021
The provider's summary judgment motion was granted and the insurer's cross motion denied despite its New Jersey choice-of-law argument. The Appellate Term, Second Department, affirmed the order applying New York law for the reasons stated in Schottenstein Pain & Neuro, PLLC v Travelers Ins. Co. The insurer's sole appellate contention was that New Jersey law controlled the assigned no-fault benefits action.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159)
February 24, 2021
The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim. The Appellate Division, Second Department, affirmed the order upholding denial of the insurer's summary judgment motion, on different grounds. Although records indicated policy exhaustion, the employee affidavit described general claims-handling practices without claim-specific information, and the insurer omitted the application, verification materials and denial. The employee's assertions about the file's contents were inadmissible hearsay; reviewing business records did not confer personal knowledge. Insurance Law § 5106 (a) requires timely payment or denial of verified claims, which are subject to the payment-priority regulation, 11 NYCRR 65-3.15. Factual issues remained concerning the denial's timing, basis and efficacy; the remaining contentions were not reached.
City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50135(U))
February 19, 2021
A pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2. The insurer established that it properly scheduled the assignor's IMEs before receiving the provider's claim, that the assignor failed to appear, and that it timely denied the claim on that ground. Appearance was a condition precedent to policy liability. The provider's proposed 30-day mailing requirement lacked merit under 11 NYCRR 65-3.5 (a) and (d) and Appendix 13. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2021 NY Slip Op 50134(U))
February 19, 2021
The insurer's motion to dismiss for laches based on the provider's delay in prosecution was denied on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. It remitted the matter to Civil Court, Queens County, to determine the remaining branch seeking dismissal of the statutory no-fault interest claim.
Vitality Chiropractic, P.C. v Metropolitan Auto Home & Life Ins. (2021 NY Slip Op 50133(U))
February 19, 2021
The insurer's motion to dismiss for laches based on the provider's delay in prosecution was denied on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. It remitted the matter to Civil Court, Queens County, to decide the remaining request to toll statutory no-fault interest, previously deemed moot.