Both No Fault Defender and Coverage Counsel (in comments It took me so long to post that I missed his post) have put in their two cents. I’ll add my half-penny.
Presbyterian Hosp. in the City of New York v. Maryland Cas., 90 N.Y.2d 274 (1997) and
Statutes should be given their plain meaning.
65-3.6 Follow-up requirements.
(a) Application for motor vehicle no-fault benefits. At a minimum, the insurer shall, within 10 calendar days, mail a second application for motor vehicle no-fault benefits, with the prescribed cover letter, to the eligible injured person or such person’s attorney if, 30 calendar days after the original mailing, a prescribed application has not been completed and returned to the insurer. If the follow-up is sent to the applicant’s attorney, a copy of the prescribed cover letter, marked “second notice”, shall be forwarded to the applicant.
(b) Verification requests. At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.
65-3.8 Payment or denial of claim (30 day rule).
(j) For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to section 5106 of the Insurance Law, with the exception of section 65-3.6 of this subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.
There should be no equitable considerations. Grammatical niceties have no place here. We all know what the words mean.
Based on the regs, a brightline rule is somewhat dangerous. Clearly, insurers have to follow up. However, there does not appear to be an absolute timeline for follow ups.
As a result, if the court creates a brightline rule, it will result in a windfall for providers and limitations that didnt exist before. However, if the courts find that there is no timeline whatsoever, then insurers will include follow ups in the same envelope as the initial request and other sneaky methods of compliance.
I think the carriers should be shaking in their boots at this decision. Not because of what it does to the verification process, which is clearly in their favor here, but because the Appellate Division is now apparantly going to be making equitable considerations in no fault matters.
The entire no fault process is horribly inequitable in favor of the carriers, and this opens the door to all sorts of arguments.
The Appellate Division may have created no-fault’s own “no prejudice” rule. Another consideration for late submission/notice of claim cases.