No-Fault Case Law
St. Mark’s Med. Health Care, PLLC v 21st Century Ins. Co. (2020 NY Slip Op 50851(U))
July 10, 2020
An unvacated default declaratory judgment can bar a provider's later no-fault action under res judicata. The provider and assignor had defaulted in a declaratory judgment action concerning the same accident. The resulting declaration stated that the declaratory judgment plaintiffs had no coverage obligation, that the policy was void as to the accident, and that reimbursement was not required because claims had not been verified. Default judgments can have res judicata effect, and a judgment for the provider would impair rights established by that declaration. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the defendant insurer's motion for summary judgment dismissing the complaint.
Clear Water Psychological Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 50847(U))
July 10, 2020
The insurer's letters merely reported missing documents and did not establish proper verification requests warranting dismissal. The provider sought summary judgment, and the insurer cross-moved to dismiss the action as premature. The majority found that the letters did not actually request verification from the assignor and failed to establish proper, timely requests or outstanding verification. The provider likewise failed to show that the claims were not timely denied or that timely denials were legally insufficient. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion. A partial dissent would have granted the insurer's cross motion, finding the letters sufficient and timely under 11 NYCRR 65-3.6 (b).
Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C. (2020 NY Slip Op 03876)
July 9, 2020
Claimants' failure to sign and return EUO transcripts violates a coverage condition precedent and warrants denial of benefits. The insurer also established that the two provider defendants failed to appear for two scheduled EUOs. Its lack of proof of proper delivery of denials did not defeat the transcript-based defense. A one-day delay in issuing one provider's follow-up EUO request was an excusable technical defect under 11 NYCRR 65-3.5 (p), given the brief delay and ultimate nonappearance. The Appellate Division, First Department, reversed, granted the insurer summary judgment, denied the providers' cross motion, and declared that neither provider could collect benefits for the accident.
Healthplus Surgery Ctr., LLC v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 03772)
July 8, 2020
The provider's expert affidavit raised factual issues on medical necessity and reimbursement for a surgical device under New Jersey's fee schedule. The New Jersey provider sued for assigned no-fault benefits for services rendered there, and the parties agreed that the New Jersey schedule applied. The insurer's peer review, IME report, and medical documentation made a prima facie showing supporting dismissal. The provider's expert relied on MRI results and surgical findings to raise a medical-necessity issue and also raised an issue about device reimbursement under New Jersey Administrative Code § 11:3-29.4 (f) (8). The Appellate Division, Second Department, affirmed denial of the insurer's summary judgment motion.
Motor Veh. Acc. Indem. Corp. v Bader & Yakaitis LLP (2020 NY Slip Op 50798(U))
July 8, 2020
MVAIC's no-fault lien had priority over child-support and Medicaid liens, and the claimant and counsel were personally liable for repayment. The Supreme Court, New York County, granted MVAIC summary judgment on liability under Insurance Law § 5104 (b) because the claimant and counsel settled without notice or consent and failed to repay the lien. Counsel's notification and payment duties arose under Rules of Professional Conduct 1.15 (c) (1) and (c) (4). Independent liability defeated discharge as mere stakeholders under CPLR 1006 (f). The court directed payment of counsel's charging lien under Judiciary Law § 475 first, then MVAIC's lien with interest, then the agency liens. It denied MVAIC collection fees under State Finance Law § 18 (5) because receipt of notice starting the 90-day period was unproved.
Madison Prods. of USA, Inc. v American Tr. Ins. Co. (2020 NY Slip Op 50749(U))
June 26, 2020
A workers' compensation defense is precluded by an untimely denial, requiring a threshold timeliness determination before a stay. The insurer raised an employment-related coverage issue for the Workers' Compensation Board, which has primary jurisdiction under the Workers' Compensation Law. The Appellate Term, Second Department, upheld holding the first four causes of action in abeyance but required a framed issue hearing to determine receipt and denial timeliness for the fifth claim. A timely denial would permit holding that claim in abeyance; an untimely denial would preclude the defense and permit consideration of the provider's summary judgment request. The order was modified to hold the provider's motion in abeyance rather than deny it and to remit the fifth-claim stay request for redetermination.
Matter of Findlay v MTA Bus Co. (2020 NY Slip Op 03611)
June 25, 2020
The denial of the claimant's lost-wage claim was rational, and an untimely employment contract was properly excluded. No-fault and tax forms conflicted as to the claimant's employer, job title, employment relationship, pay rate, payment frequency, last workday, and income. Testimony at arbitration and an earlier deposition also conflicted. The no-fault arbitrator's credibility determinations were discretionary, and the arbitrator could refuse an employment contract previously requested but not submitted before evidence closed. The master arbitrator properly considered only the arbitration record. The Appellate Division, First Department, affirmed the order denying the claimant's CPLR article 75 petition to vacate and granting the respondents' application to confirm the master arbitration award.
Accelerated Med. Supply, Inc. v Ameriprise Ins. Co. (2020 NY Slip Op 50741(U))
June 18, 2020
The insurer's EUO notices were sufficient because the initial letter identified the assignor, accident date, and file number. The District Court had found the notices defective for failing to specify individual claims. The initial request tolled payment or denial deadlines for previously submitted claims involving the same provider, assignor, and accident if timely as to each claim, and for claims received afterward but before two EUO nonappearances breached a policy condition. The insurer proved proper mailing, the provider's nonappearances, and timely denials; the provider raised no triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion.
Longevity Med. Supply, Inc. v Progressive Ins. Co. (2020 NY Slip Op 20137)
June 17, 2020
Timely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient. Following Shara Acupuncture, P.C., the Civil Court, Kings County, denied both sides summary judgment on the first three causes of action. The insurer proved timely denials but failed to prove mailing of IME notices or both nonappearances; the provider failed to show the denials conclusory, vague, or meritless as a matter of law. On the fourth cause, conceded liability yielded a corrected $240 balance plus interest at 2% monthly from commencement under 11 NYCRR 65-3.9 (c). The provider received summary judgment on attorney's-fee liability only on the fifth cause under 11 NYCRR 65-4.6 (d); the remaining claims continued.
Harvey Family Chiro PT & Acup, PLLC v Ameriprise Ins. Co. (2020 NY Slip Op 20136)
June 15, 2020
Impermissible fee splitting alone does not establish a Mallela licensing violation warranting denial of no-fault benefits. The Civil Court, Bronx County, denied both sides' summary judgment motions in their entirety. All provider owners were licensed, but unequal ownership raised factual issues for trial about control over services beyond the majority owner's license under 11 NYCRR 65-3.16 (a) (12). The insurer's IME evidence of unnecessary treatment was rebutted by the treating chiropractor's affidavit, creating a medical-necessity issue. Its fee-schedule defense under 11 NYCRR 65-3.8 (g) (1) lacked an affidavit from someone familiar with coding and schedules; counsel's affirmation was insufficient. The provider's cross motion failed because it supplied neither a biller's mailing affidavit nor the mailing date or proof of mailing.