Category Archives: EUO

Catching Up

Written on October 24, 2009 by Dave Gottlieb
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I’ve been under the weather for the past week.  According to my wife, I wasn’t sick enough.  According to some people at the office, I had a bad case of the whine flu.  According to me, I felt like I was going to vomit and pass out.

So I didn’t post.  I barely looked at the cases that were coming out.  It’s time to catch up.

No-Fault Defender posted on two important issues.  First, 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).  The decision dates are different, but it’s the same case.  I took a trip over to the Appellate Division to confirm.  The Pine Hollow decision was stapled to the order granting leave1.  Some might find that interesting.  You can read No-Fault Defender’s post HERE.  He believes, and I agree, that this may be the end of Dan Med–a decision that never made sense.  The other post asked the question, Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?  It begins with the recent Progressive Northeastern Ins. Co. v Arguelles Med. P.C., decision where the Supreme Court found that defendant failed to prove that the EUO was reasonably required, among other things.  He concludes that “In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.”  While he poo poos the willful and avowed standard, I believe that it remains appropriate, even for condition precedent issues.  And there is always the Insurance Department opinion letter.

My favorite part of his post is where he directs his readers to my post–the one that only has the case cite and link–for my insight.  Thanks.  This is not the place to go for insight; however, if what you are looking for is stick figure drawings of people sticking their ass in other people’s faces on the subway, this is your place.

In other news2:

Med-Tech Prods., Inc. v Geico Ins. Co., 2009 NY Slip Op 52111(U) (App. Term, 2nd 2009)

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co., 2009 NY Slip Op 52122(U) (App. Term, 2nd 2009)

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. We disagree because the affidavit was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Fatiha Ibrahim, D.C. v MVAIC, 2009 NY Slip Op 52125(U) (App. Term, 2nd, 2009)

The Civil Court denied MVAIC’s motion, holding that “MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York.”

Where, as here, plaintiff and his assignor are aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, is required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). However, under the facts of this case, MVAIC’s motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC’s claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff’s failure to exhaust his remedies against the vehicle’s owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.

Nationwide Mut. Fire Ins. Co. v Aquiles, 2009 NY Slip Op 32432(U) (Sup Ct, Nassau County, 2009)

In news unrelated to no-fault, everyone should take a moment to check out John M. Hochfelder’s blog, New York Injury Cases Blog.  His posts have pictures.  PICTURES!  And the man can write.  If there are a thousand personal injury blogs, only a handful are worth reading.  His is one of them.

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1.  I also read the briefs.  One of them was full of ad hominemA arguments and hyperbole.

2. Some believe that the Appellate Term invented the Dan Med rule to cut down on no-fault litigation, or at the very least, make the cases speed along in the Courts.  If so, the decision has had a contrary effect.  Not only has it clogged the Courts, it caused countless appeals.  Good Stuff.

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A.  That’s right, a footnote to the footnote.  I just did that.  If you are interested, Logic for Lawyers, comes highly recommended.  It isn’t cheap, which is why I haven’t read it yet, but based on the recommendation (and the author), I think it’s worth picking up.

Tags: , , , , Coverage, Dan Med, Declaratory Judgment, EUO, Fraud, Geico, Legal writing, no fault law, progressive
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Some New Decisions

Written on October 15, 2009 by Dave Gottlieb
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A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 52067(U) (App. Term, 2nd 2009)

Contrary to plaintiffs’ contention, defendant established both that the EUO notices were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) and that the assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, in light of the foregoing and the fact that plaintiffs’ further [*2]contentions that the EUO notices were defective and that an EUO was not necessary lack merit, defendant’s cross motion for summary judgment was properly granted (W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Even were we to find otherwise, plaintiffs’ motion for summary judgment was properly denied because plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Careplus Med. Supply, Inc. v Allstate Ins. Co.,  2009 NY Slip Op 52068(U) (App. Term, 2nd 2009)

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s president and medical biller failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issue.

If anyone can find a case that supports any of these propositions, they get a cookie:

  • If a summary judgment motion is made before the completion of discovery, it is premature as a matter of law.  Can this be distinguished from a pre-answer motion to dismiss?
  • A motion without written opposition must be granted as a matter of law, regardless of the sufficiency of the moving papers.  Double cookies for anyone who can find an Appellate Term case that says as much.
  • If a motion is granted without written opposition, but an attorney appears on the motion, it is not on default because someone appeared.  And, as a result, the “defaulting” party cannot make a motion to vacate.

If you just read this and are confused, you should be.  If you aren’t, then you know what I’m getting at.

Dan Med, EUO, Prima Facie, no fault law
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ONE ISSUE, DIFFERENT APPROACHES

Written on August 26, 2009 by Dave Gottlieb
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Both Hastava & Aleman Assoc., P.C. v State Farm Mut. Auto Ins. Co. 2009 NY Slip Op 51818(U) Civ Ct City NY, Bronx County and Brentwood Pain & Rehabilitation Servs., P.C. v Progressive Ins. Co., 2009 NY Slip Op 31881(U) (Sup Ct, NY County) involved EUO requests of the providers (as opposed to those requested of an injured person).

In Hastava, plaintiff relied on two arguments to defendant’s pre-answer motion to dismiss: Defendant did not show that the policy allowed for EUOs at all and even if it did, defendant could not show that it timely and properly requested the EUOs. The Court rejected the policy argument, finding that the EUO provisions are read into the policy. As to the mailing argument, the Court found that defendant wasentitled to the presumption of receipt because it provide affdiavits and and proof of actual mailing.

The Brentwood Pain decision, on the other hand, was not as simple. It involved multiple claims and mailing was not an issue. The Court found that defendant was not entitled to EUOs on claims prior to the new regs, citing to Appellate Term decisions (which the supreme court is not bound by–its in the decision), and an Insurance Department circular letter (No. 9, April 9, 2002). The Court decided that issues of fact exist as to whether plaintiff “substantially complied” with defendant’s legitimate requests, dismissed those claims barred by the SOL and those that were previously arbitrated, leaving most everything else to be decided some other day. Roy Mura, over at CoverageCounsel has a detailed analysis of the case. Go check it out.

Neither decision discussed the recent opinion letter that states:

Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath.

Brentwood Pain did however find that Circular letter No. 9 was entitled to “great deference.” I imagine it will take the same position on the recent letter. So, the Court might find that while the defendant was entitled to EUOs, it was not entitled to request them in the manner it did. And as a result, the requests were nullities. Or something like that. While the issue was phrased as whether there was substantial compliance, it’s more akin to non-cooperation. I have plenty of posts on that issue if you want to have a look.

I can’t fix the stupid spacing issue. Fixed it. I’m a genius.

EUO
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NEW DECISION

Written on June 3, 2008 by Dave Gottlieb
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All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2008 NY Slip Op 28207 (Civ Ct City NY, Kings County)

While defendant acted within its rights under the Endorsement in scheduling Mr. Stringer for a pre-claim EUO for April 21, 2005, once defendant received the claim from the plaintiff, the defendant was required to adhere to statutory and regulatory scheme for the processing of no-fault claims. Thus, defendant was required to pay or deny the claim within 30 calendar days of [*3]its receipt (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8(a)(1); Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 278 [1997] ) or request additional verification of the claim (11 NYCRR 65-3.5). Generally, a request for addition verification of a claim must be made within 15 business days of receipt of one of the prescribed verification forms (see 11 N.Y.C.R.R. § 65-3.5(b)). Where an insurer makes a timely and proper request for additional verification, the 30 day period in which it has to either pay or deny a claim does not begin to run until all demanded verification has been provided (11 NYCRR 65-3.8(a)(1)).

Here, while defendant had already scheduled Mr. Stringer’s EUO for April 21, 2005 before it had received the claim, if defendant insisted upon conducting the EUO before deciding whether to pay or deny the claim, it had no choice but to re-schedule the EUO to a date within 30 calendar days from February 14, 2005, the date it received the claim (see All-Boro Medical Supplies, Inc., surpa.; S & M Supply Inc., surpa.). As a matter of law by failing to re-schedule the EUO, defendant could not assert Mr. Stringer’s failure to appear for the EUO as its basis to deny the claim (see King’s Medical Supply Inc. v. Kemper Auto & Home Ins. Co., 7 Misc 3d 128(A), 2005 NY Slip Op. 50450(U) [App Term, 2nd & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 10 Misc 3d 145(A), 2006 NY Slip Op. 50140(U) [App Term, 2nd & 11th Jud Dists] ).

EUO, Verification
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