Sunday, May 28, 2006

To Prove Staged Accident in Judge Velasquez' Courtroom, the Standard is Preponderance of Evidence

In Universal Open MRI of the Bronx, P.C. v State Farm Mut. Auto Ins., decided on May 11, 2006, Judge Velasquez at Civil Court, Kings County ruled evidence defendant presented insufficient to prove a staged accident. While unremarkable by itself, he goes into a detailed analysis as to the standard of proof required. He ultimately adopts the standard of preponderance of evidence. The decision is worth reading.

An Example of An Effective Peer Review Defense - Where Plaintiff Does Not Produce a Witness

In Expo Med. Supplies, Inc. v Clarendon Ins. Co., 2006 NY Slip Op 50892(U), decided May 15, 2006 in Civil Court, Kings County, Judge Delores J. Thomas held that defendant's Peer Review Doctor Ronald A. Csillag's testimony was sufficient to carry their burden to prove that the supplies were not medically necessary. Plaintiff did not produce a witness, but instead relied upon the report of Dr. Barshay. The court found that no evidence was presented to refute defendant's testimony.

Affidavit Re Proof Of Mailing Must Be Specific to be Sufficient

In A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 2006 NYSlipOp 50810(U), decided April 28, 2006, the appellate term second department vacated a judgment against defendant since among other things, plaintiff's affidavit was insufficient to prove mailing. In his affidavit, plaintiffs' "practice and billing manager" alleged that he "issued all of the billings," that he "personally billed out the claim," and that "[a]ll billing of plaintiff was sent to defendant." The court said this was not enough.

Amazing - IME No Show = No Pay

In two cases, Amaze Med. Supply Inc. v Allstate Ins. Co. and Amaze Med. Supply Inc. v General Assur. Co., the appellate department confirmed the viability of the defense that plaintiff's assignor failed to appear for IMEs. In the second case, the court also states that an affidavit by a supervisor with knowledge of the mailing procedures is enough to prove mailing of the IME letters.

Never Mind that the Regulation Requires the Endorsement, Prove to Us It's There

In yet another set-back for the defense bar, the appellate division second department held in Dilon Med. Supply Corp. v Progressive Cas. Ins. Co., 2006 NYSlipOp 50908(U), decided May 17, 2006 that requests for examinations under oath did not toll the thirty day rule as defendant failed to provide proof that the policy endorsements mandated by the new regulations were made a part of the applicable policy.

First, every policy issued or renewed is required by law to include the endorsement. Second, the claim involved appears to have arisen right when the new regulations went into effect, so it dealt with a situation where a plaintiff could call into question whether the new endorsement controlled. If plaintiff raised such an issue, defendant should have been afforded an opportunity to respond rather than ruling against them by fiat.

A Nurse's Peer Review Not Enough

In SZ Med. P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 26194, decided May 17, 2006, the appellate term second department held in part that a nurse's unsworn peer review was not enough to establish lack of medical necessity,absent some proof of the ability of that nurse to give a medical opinion. I think I know at least one nurse who would disagree with the latter part of the court's reasoning.

180 Rule Viable But You Need Proof

In Continental Med., P.C. v Travelers Indem. Co. , 2006 NYSlipOp 50841(U), decided May 11, 2006, the appellate term, first department reversed summary judgment for defendant on the 180 day rule, in effect saying that insufficient proof was put forward as to the date of receipt of the notice of loss.

Track and Confirm Receipt Alone Is Not Proof of Mailing

In New York and Presbyterian Hospital, a/a/o Richard Udland, et al., v. Allstate Insurance Company, (Index No. 6510/04), 2006 NY Slip Op 03558, the Appellate Division, Second Department upheld denial of summary judgment on a cause of action where plaintiff sought to prove mailing solely based upon a Track and Confirm receipt without adequate support. "Here, no presumption of mailing was created because the affidavit of the plaintiffs' billing service representative did not state that he actually mailed the particular claim alleged in the second cause of action to the defendant ... or describe his office's practice and procedure for mailing no-fault claims to insurers."

Wednesday, May 03, 2006

And now for something off topic

Who is suing David Letterman, and why? Does it involve no-fault?
Is Dick Schaefer involved?

Plaintiff's Affidavits Must Be Specific

In A.B. Med. Servs. PLLC v Allstate Ins. Co., 2006 NYSlipOp 50746(U) decided April 27, 2006, the Appellate Term, Second Department held that plaintiff's billing manager's affidavit was not specific as to which of the provider companies he was a billing manager, and denied plaintiff's motion for summary judgment.

No Summary Judgment Before Discovery Complete

Congratulations to Jeremy Kosin of Bruno Gerbino for his win in SK Medical v. New York Central Mutual, 2006 NY Slip Op 50721(U), decided April 5, 2006 in Civil Court, Richmond County by Judge Sweeney.

Judge Sweeney held that plaintiff was not entitled to summary judgment because discovery as to non-precluded defenses was still outstanding. Judge Sweeney expanded on a ruling in A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 2006 NY Slip Op. 26068[App. Term, 2nd & 11th Jud. Dists.]

Out of State Insurers Off the Hook?

If you have occasion to handle claims being made against an out of state insurer who has not filed with the insurance department to offer coverage in New York, you might want to check out Marshall v. Nationwide Mutual Company, 166 A.D.2d 852.

Thanks to Christopher A. Wong with Bruce Sommerstein & Associates for this tip.