There were a few no-fault cases that were posted this past Friday. I’m pretty sure JT touched on all of them, so I won’t get into it over here. And as I was writing this, I found a new case over at the Appellate Term, First Department.
Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U) (App. Term, 1st, 2010)
As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
A little while ago I went over the to the Appellate Division to pull the briefs on Carothers v. Geico. You all recall that the Appellate Division granted leave to appeal the Appellate Term’s decision in Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 (App. Term, 2nd 2009). If you want some background on the case, have a look at my previous post. Sometime last week I found out that the Appellate Division granted additional time for a reply. In a footnote in my earlier post I noted the ad hominem attacks and hyperbole in one of the briefs. There was a little in both, but more in the one that had it the first time around.
Geico conceded an awful lot; much more than you would expect. When concessions and legal argument failed, Geico went straight to its “the other side is bad” arguments, which, I’d like to think, is wasted on the Appellate Division. And for whatever reason, Geico cited to the Appellate Term, far more than to the Appellate Division, to support it’s arguments. Finally (sort-of), and I don’t mean to Geico bash, the binding on the Geico brief was annoying as hell. Geico used the plastic ring binding. With that binding, turning pages is like listening to someone playing with styrofoam and scratching a chalkboard at the same time. Carothers made the argument that the bills are medical records and are therefore self-authenticating.
Both sides used FRCP 803(6) to support their position. Both sides argued that Hochhauser supports their position. Neither side addressed the possibility that the bills do not need to be in evidence at all. Neither side discussed the Corsi decision.
I didn’t copy the briefs (35 cents/page). I thought I was going to take a lot of notes, but I wound up writing two things on a legal pad. When Carothers puts in the reply brief, I might go back and give everyone an update.
1. The Appellate Division should have rejected that type of binding. It is unprofessional and disgusting, especially before the Appellate Division. Pay the $100 and get it professionally bound. I mean if you are that confident in your position, you will get the money back as costs and disbursements.
2. I thought the whole issue was whether: “[t]he bills…need[ed] to be in evidence at all.” If the court has to reach the business record issue, then the Plaintiff’s bar loses, regardless of the ultimate outcome.
3. How come the plaintiff’s bar is not putting an amicus in? I would if I were a Plaintiff.
Amicus???? LOL!!!!!!!!!!!!!!!!!!!!!!!!
Now that’s out of my system, of course I agree.
I don’t think the insurance industry and virtually all other commercial interests would be doing it for no reason.
I am very interested in the Ad Hominen attacks and hyperbole. I keep getting accused of that by the Term and I want to compare what GEICO says compared to what I said. I am trying to come up with a bright line rule. Or perhaps there is just a rule for me.
The hyperbole probably pales in comparison to yours. Not sure about the ad hominem though. My guess is you get the win on that.
Oh thank you David. Why don’t you just come in and give your expert opinion at my sanction hearing which I am told will be coming … you’re such a good friend David. With friends like you I want to go back to being an insurance company thug again.
Thanks. Take me with you. I’d be an excellent insurance company thug.
Dan Medical was simply a gift by the App Term to insurance companies, devoid of any aspect of meaningful jurisprudence. Still haven’t seen even a single rational argument in favor of it. Tellingfly, neither this Term nor the App Div has attempted to support its position with any sort of legal analysis– they simply proclaim.