Dugo v Allstate Ins. Co., 2010 NY Slip Op 50102(U) (Civ Ct City NY, Richmond County)
The sole issue presented at trial was whether a plaintiff medical provider is excused from submitting its bills to a defendant insurance company after the company has issued a general denial to the plaintiff. Defendant requests that this case be dismissed due to plaintiff’s failure to timely submit its bills.
Defendant Allstate Insurance Co. (“defendant” or “Allstate”) issued a general denial dated June 14, 2006, based upon an independent medical examination ( “IME”) performed upon the assignor Kristin Puma (“Assignor” or “Puma”) wherein the doctor utilized by defendant determined that no further medical services were necessary ( “IME cut-off date). The assignor continued to undergo medical treatment, including chiropractic treatment from plaintiff J. R. Dugo, D.C. (“Dugo” or “plaintiff”), from August 22nd through December19, 2006. Plaintiff never submitted its bills to Allstate and Allstate consequently never issued a denial, verification request or paid the above claim.
Plaintiff contends that once defendant issues a general denial which predates any services provided by plaintiff, it is no longer under an obligation to submit claims within 45 days of the date of service. Defendant contends that its general denial does not obviate plaintiff’s obligation, under the No – Fault Law, to submit a claim within 45 days.
Defendant’s attempt to distinguish the current factual situation from the governing case of Mtr. Of State Ins Co. V. Domotor, 266 AD3d 219 (2d Dept. 1999) is unavailing. In Domotor, supra, the insurance company initially provided medical benefits to the appellant assignor but then issued an IME cut-off denial based upon its expert’s opinion that the assignor no longer needed medical treatment.The assignor nevertheless continued to obtain medical care although she submitted no further claims to the insurance company . She subsequently demanded arbitration to resolve the issue of the insurance company’s liability. [*2]
The court ruled that once an insurance company had unequivocally repudiated liability on the claim by sending a letter disclaiming coverage, it could not “insist upon adherence to the terms of its policy.” 266 AD2d at 220. The insurance company’s letter of disclaimer thus negated the insured’s otherwise absolute obligation to comply with the conditions precedent under the policy to provide a timely written proof of loss. Id at 220-21. The assignor was therefore entitled to arbitrate her claim that she was entitled to such medical benefits following the issuance of the denial, even though the bills for those services were never submitted to the insurer prior to her demand for arbitration. Id.
Dormitor was further explained in Mtr. Of Arbitration between NY Medical Health v. NYC Transit Authority, 2009 NY Slip Op. 51526U, 24 Misc 3d 1219A ( Civil Ct, Kings Co. 2009). Judge Sweeney first noted that the condition precedent to the obligation of an insurer to pay no fault benefits arose from the policy of insurance which contained the mandatory personal Injury protection (“PIP”) endorsement – that an eligible injured person or his assignee submit written proof of claim within 45 days after the date services are rendered (11 NYCRR 65.1, 65-2.4(c)). However, pursuant to set insurance law precedent, “an insurer cannot insist upon cooperation or adherence to the terms of its policy after it has repudiated liability on the claim ***by sending a letter denying liability. Id at 3 citing Rajchandra Corp. V. Title Guarantee Co., 163 AD2d 765, 769 (2d Dept. 1990). See, Auerbach v. Otsego Mutual Fire Ins. Co., 36 AD3d 840, 842 (2d Dept. 2007). Since the Transit Authority had unequivocally notified the assignor that it was denying all no -fault benefits, neither the assignor nor his assignee – the medical provider – were obligated to submit written proof of claim to the respondent. Id. At 4.
Nor does the opinion letter annexed to defendant’s papers from the Office of Counsel, State Insurance Department, support defendant’s position. The precise question posed before Counsel was whether an insurance company must continue to issue denials for claims for continued treatment which are submitted subsequent to the company’s issuance of a general denial for all-future benefits. Unlike the current situation, where plaintiff has not submitted any claims, the facts presented to the Office of Counsel revealed that the medical provider continued to submit claims for reimbursement after the general denial was issued. Therefore, Counsel’s opinion was predicated upon an insurer’s obligation under the regulations (11 NYCRR §65-3.8(c)) to either deny or pay a claim within 30 calendar days after proof of claim is received. His further comment that “the obligation of an applicant to submit timely claims to be eligible for reimbursement remains continuous, irrespective of whether an insurer has denied a claim” is merely dicta.
However, Allstate’s “ability to resolve the claims at issue if warranted” is not prejudiced. Plaintiff had the option of continuing to submit claims, despite Allstate’s general denial, and chose not to. Since plaintiff has failed to file its claim, no presumption of medical necessity attaches to the services rendered by plaintiff.The burden therefore has not shifted to defendant to demonstrate the lack of medical necessity. See, , e.g. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 17 Misc 3d 1135A( Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 2005 NY Slip. Op. 50662(U), 7 Misc 3d 1018(A) (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings [*3]Co. 2004). At trial, plaintiff must establish the medical necessity of the services rendered and negate the general denial issued by Allstate that pursuant to an IME, no further medical services were warranted,
As such, the court denies defendant’s motion to dismiss the case due to plaintiff’s failure to submit a claim and directs the parties to contact the court, within 20 days of receipt of this decision, to schedule a date to recommence the trial unless they can resolve the matter beforehand.
The post title has nothing to do with the decision, I just like the word.
Style Acupuncture, P.C. v State-Wide Ins. Co., 2010 NY Slip Op 50089(U)(Civ Ct City NY, Kings County)
Defendant’s excuse for the delay in denying the claim is that there was a “pending fraud investigation”. There is no indication that any verification request was ever sent to plaintiff after defendant received the bills. Such a request would have served to toll the time to deny the claim. Moreover, the report of Special Investigations Unit [hereinafter "SIU"] Investigator, Charles Rorke, is unsworn and not in admissible form as required by CPLR § 3212. However, even if it were admissible, Mr. Rorke concluded that “there is no evidence that [the accident forming the basis of the claim] was caused or staged”.
Defendant correctly states that “a no fault insurer is not precluded from asserting a defense of fraud, despite the insurer’s untimely denial of the claim”. Central Gen. Hosp v. Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Progressive Northwestern Ins Co. V Van Dina, 282 Ad2d 269 [2d Dept 2001]. However, no such tolling provision applies with respect to provider fraud, which seemingly forms the basis for defendant’s denial. Fair Price Medical Supply Corp v. Travelers Indemnity Co., 10 NY3d 556, 860 NYS2d 471 [2008]. [*3]
Defendant urges that the Court find there is an issue of fact as to fraud and set the matter down for trial on that issue. The Court declines to do so. Even if there were admissible evidence of provider fraud, as set forth above, such evidence would not excuse defendant’s untimely denial of the within claims.
The Court finds that plaintiff has met its prima facie burden of proving mailing. Defendant is, however, unable to prove timely denial.
The Supreme Court properly concluded that the petitioner failed to meet its burden of proving that an insurance policy endorsement dated October 21, 2005, which purportedly reduced the limits applicable to the uninsured/underinsured motorist endorsement of the relevant policy to the sums of $25,000 per person and $50,000 per accident, was properly mailed to the policy holder prior to the date of the subject accident. The underwriter who testified at the hearing failed to offer “evidence of an office [procedure] geared to insure the likelihood that [the endorsements are] always properly addressed and mailed” (Federal Ins. Co. v Kimbrough, 116 AD2d 692, 692; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; Matter of Transcontinental Ins. Co. v Gibbs, 34 AD3d 488; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; Lumbermens Mut. Cas. Co. v Gamble, 250 AD2d 540; Matter of Allstate Ins. Co. v Ramirez, 208 AD2d 828, 830; Sea Ins. Co. v Kopsky, 137 AD2d 804; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238; cf. Kaufmann v Leatherstocking Coop. Ins. Co., 52 AD3d 1010, 1012; Morales v Yaghoobian, 13 AD3d 424, 425; Matter of Metlife Auto & Home v Pennella, 10 AD3d 726).
Compare with Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129(A) (App. Term, 2nd, 2008):
Since an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; see S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004], supra) and defendant need not prove that the instant automobile insurance policy contained such Endorsement.
and with Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 (App. Term, 2nd, 2008):
A review of the record indicates that defendant demonstrated that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification (cf. Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).
and with SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139(A) (App. Term, 1st, 2005):
Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.
Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 50065(U) (App. Term, 2nd, 2010)
Metropolitan Med. Supplies, LLC v GEICO Ins. Co.,2010 NY Slip Op 50066(U) (App. Term, 2nd, 2010)
Quality Rehab & P.T., P.C. v GEICO Ins. Co., 2010 NY Slip Op 50067(U) (App. Term, 2nd, 2010)
Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 50068(U) (App. Term, 2nd, 2010)
Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co., 2010 NY Slip Op 50070(U) (App. Term, 2nd, 2010)
Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co.,2010 NY Slip Op 50053(U) (Dist Ct Nassau County, First Dist)
Expert testimony is required to establish what the generally accepted medical/professional practices are and how ordering the tests or treatment departed from generally accepted medical/professional standards. Dunn v. Khan, 62 AD3d 828 (2nd Dept. 2009); and Lyons v. McCauley, 252 AD2d 516 (2nd Dept. 1998).
Chiropractics is separate and distinct from the practice of medicine so that a physician’s standard is not controlling upon a chiropractor in the practice of his or her profession. Taormina v. Goodman, 83 AD2d 1018 (2nd Dept. 1978). In determining [*4]whether treatment performed or tests ordered by a chiropractor are medically necessary, the court must determine the generally accepted standard of care in the field of chiropractics and whether the providing the treatment or ordering of the tests was in accordance with those generally accepted chiropractic standards. 1B NY PJI3d 2:150, at 802 (2009).
To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). When a doctor testifies outside his area of expertise, the party calling the doctor must lay a foundation establishing the doctor is familiar with the generally accepted practice in the area in question to lay a proper a foundation for the expert’s opinion. Shectman v. Wilson, -A.D.3d-, 2009 WL 4674047 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).
State Farm had a neurologist perform the peer review and called a neurologist to testify the cervical and lumbar MRIs ordered by a chiropractor were not medically necessary. Even though the parties stipulated Dr. Seliger was an expert, his field of expertise is neurology not chiropractics. State Farm did not establish Dr. Weiland, the peer reviewer, or Dr. Seliger, the re-peer, were familiar with generally accepted chiropractic practices or the generally accepted reasons why a chiropractor would order a patient to have a cervical or lumbar MRI.[FN2] Therefore, Dr. Weiland’s peer review report and Dr. Seliger’s testimony are insufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim.
Congrats to Ms. Erin Stamper on her her first published decision. Though it was mentioned in a comment, it’s worth mentioning here.
That aside, JT told you so, proving to some extent that you really don’t want your attorney to blow sunshine up your crack.
[last note: It looks like the Court's cite for Geffner is off by a number. It should be 57 AD3d 839.]
I finally got around to using my Barnes and Nobles gift-card and quadrupled my reading list in the process. I am still reading the Gulag book. While interesting, the writing doesn’t flow very well, making for a difficult read. Around the same time I got that one, I picked up Clear and Simple as the Truth: Writing Classic Prose. Recently, someone asked me “Do books like that really help?” I think they do. They won’t change anything overnight, and none of the writing books I’ve read are mind-blowing, but I take bits and pieces of each one, sometimes unconsciously, and eventually, it seeps in. I’m pretty sure it works that way for everyone. So, short answer: It helps; at least for me.
The books I ordered are, Secret Lives of the Supreme Court: What Your Teachers Never Told You About America’s Legendary Justices(used); The Long Walk; Intellectuals: From Marx and Tolstoy to Sartre and Chomsky; Gonzo: The Life of Hunter S. Thompson; Teacher Man: A Memoir; Small Is The New Big: And Other Rifts, Rants, and Remarkable Business Ideas; Dear American Airlines; The Elements of Legal Style (used); and John Adams. Almost all of them were under $8.00, which was nice. I also picked up Sources of Power: How People Make Decisions, which I hear is similar to Blink. And I picked up a 2010 CPLR.
All the way at the bottom of this blog, you’ll see what looks like a bookshelf. It’s an app that has most of the books I’ve read. I’m pretty sure I still have 90% of them. On the bottom right of the bookshelf you can click through and see all of the books. If you see something that you are interested in reading, let me know. I’ll probably lend it to you. This really only applies to people I know or see in court, but it isn’t a hard and fast rule. And if I lend it to you, and you don’t give it back, I will publicly shame you.
This is probably a bad idea.
In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65-1.1; 65-2.4), plaintiff failed to raise a triable issue with respect to whether it had a “reasonable justification” for its delay in submitting such proof (see 11 NYCRR 65-3.3[e]). Plaintiff’s bald and unelaborated assertion that the delay was attributable to a staffing issue, i.e., the absence of an (unidentified) employee responsible for preparing claims because of “a family emergency,” is, under the circumstances presented, insufficient to raise a triable issue (see generally Bronx Expert Radiology, P.C. v Motor Vehicle Acc. Indem. Corp., 20 Misc 3d 140[A] [2008]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]).
Compare this, what has become impossible hurdle for plaintiff and the First Department’s lax requirements for “law office failure” in 5015 motions. Another issue, not discussed here is whether defendant ever considered plaintiff’s “reasonable justification.”
Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50043(U)(App. Term, 1st, 2010)
The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
JT called it. 2309(c) is dead.
Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v National Cont. Ins. Co., 2010 NY Slip Op 50042(U)(App. Term, 1st, 2009)
Plaintiffs’ proposed amended complaint does not specify any damages sustained by plaintiffs other than unpaid first-party no-fault benefits. Because plaintiff did not specify any consequential damages (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of NY, 10 NY3d 187 [2008]) caused by defendant’s failure to pay plaintiffs’ claims for such benefits, the proposed amendment is palpably insufficient as a matter of law (see Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [2007]; Davis & Davis, P.C. v Morson, 286 AD2d 584, 585 [2001]), and Civil Court providently exercised its discretion in denying plaintiffs’ motion to amend.
Best loss ever. A bad faith cause of action is viable. I’ve written about this so many times, I’m almost sick of it. I’ll add more on this issue later, when I’m not surrounded by psycho kids. Sometimes I actually need to concentrate and think for a post. Not often, but it happens.
Bronx Expert Radiology, P.C. v Countrywide Ins. Co., 2010 NY Slip Op 50025(U) (App. Term, 1st, 2010)
Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered May 2, 2007, in favor of plaintiff and awarding it damages in the sum of $2,928.84.
Per Curiam.
Judgment (Ben R. Barbato, J.), entered May 2, 2007, affirmed, with $25 costs, for the reasons stated by Ben R. Barbato, J. at Civil Court.
THIS CONSTITUTES THE ORDER OF THE COURT.
