Where a carrier fails to timely request verification of an assignment of benefits, that carrier is precluded from contesting the validity of the assignment. Even when the assignment lacks the signature of the assignor. So sayeth the Court of Appeals today in Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 2007 NY Slip Op 09067 (Ct. of App., 2007). While The Hon. Eugene F. Pigott, Jr. offers a dissent, six other Judges on the Court side with the majority opinion. The opinions serve as a concise primer on both sides of the issue.
This is, to be sure, a rather extreme result of the line of thinking originally set down by the Court of Appeals in Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997). Nevertheless, the Court has obviously looked into the abyss of the last 10 years and still hasn't blinked.
Tuesday, November 20, 2007
Friday, November 16, 2007
D'oh-shi
On March 16, 2007, the Appellate Term, 2d Department issued its decision in Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc.3d 42 (App. Term, 2d Dep't, 2007). In sum, the Court held that, where timely claim verification requests are made to a third party, and such verification is never supplied, a provider's suit for reimbursement of such a claim remains premature.
On August 21, 2007, the App. Term denied Doshi Diagnostic's application for leave to appeal to the Appellate Division. See Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co., 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007).
Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. See Doshi Diagnostic Imaging Services v State Farm Insurance, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007).
D'oh!
In other news, the App. Div., 2d Dep't also recently issued its decision in Westchester Med. Ctr. v Countrywide Ins. Co., 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007). The decision reads as a basic cut-and-paste of various other App. Div. no-fault decisions, containing standard holdings regarding the sufficiency of proof of mailing and waiver of defenses related to assignments of benefits. In the typical fashion of no-fault appellate decisions, without the benefit of seeing the record on appeal, the holding is rather worthless in a vacuum.
On August 21, 2007, the App. Term denied Doshi Diagnostic's application for leave to appeal to the Appellate Division. See Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co., 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007).
Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. See Doshi Diagnostic Imaging Services v State Farm Insurance, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007).
D'oh!
In other news, the App. Div., 2d Dep't also recently issued its decision in Westchester Med. Ctr. v Countrywide Ins. Co., 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007). The decision reads as a basic cut-and-paste of various other App. Div. no-fault decisions, containing standard holdings regarding the sufficiency of proof of mailing and waiver of defenses related to assignments of benefits. In the typical fashion of no-fault appellate decisions, without the benefit of seeing the record on appeal, the holding is rather worthless in a vacuum.
Friday, November 09, 2007
Edwards Nofaulthands
New York City Civil Court, Kings County Judge, the Honorable Genine D. Edwards, has had two no-fault trial decisions from this week picked up for publication today by the NYS Law Reporting Bureau.
All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007), which will be published in the Miscellaneous Reports, concerns EUO requests and also touches on a carrier's burden in proving a lack of medical necessity. Judge Edwards comes to the conclusion that EUO request letters must be sent out within thirty (30) days of receipt of a bill for treatment. Since it seems that the patient actually appeared for the EUO, it's a much tougher call to make than the more often litigated situation of an EUO no-show where non-compliance vitiates coverage.
Delta Diagnostic Radiology, P.C. v MVAIC, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007), which will not be published in the Miscellaneous Reports, concerns the situation where a carrier issues a proper denial based on a provider's failure to submit a timely claim, containing the requisite language informing the provider that the untimeliness will be excused for reasonable justification, but the provider never actually bothers to submit such information. It appears that the Plaintiff did attempt to submit written justification one month prior to trial, but presumably this would not avoid the conclusion that the Complaint itself remains premature.
FWIW, now might be as good a time as any to mention that I began operations of Law Offices of Damin J. Toell, P.C. a few months ago. For the most part, I'm currently handling no-fault cases on behalf of providers. The business contact info is as follows:
Law Offices of Damin J. Toell, P.C.
P.O. Box 245112
Brooklyn, New York 11224
516-204-4775 (phone)
516-394-0855 (fax)
Business-related email should be directed to: djtoellpc @ gmail . com
Have a good weekend, all.
All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007), which will be published in the Miscellaneous Reports, concerns EUO requests and also touches on a carrier's burden in proving a lack of medical necessity. Judge Edwards comes to the conclusion that EUO request letters must be sent out within thirty (30) days of receipt of a bill for treatment. Since it seems that the patient actually appeared for the EUO, it's a much tougher call to make than the more often litigated situation of an EUO no-show where non-compliance vitiates coverage.
Delta Diagnostic Radiology, P.C. v MVAIC, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007), which will not be published in the Miscellaneous Reports, concerns the situation where a carrier issues a proper denial based on a provider's failure to submit a timely claim, containing the requisite language informing the provider that the untimeliness will be excused for reasonable justification, but the provider never actually bothers to submit such information. It appears that the Plaintiff did attempt to submit written justification one month prior to trial, but presumably this would not avoid the conclusion that the Complaint itself remains premature.
FWIW, now might be as good a time as any to mention that I began operations of Law Offices of Damin J. Toell, P.C. a few months ago. For the most part, I'm currently handling no-fault cases on behalf of providers. The business contact info is as follows:
Law Offices of Damin J. Toell, P.C.
P.O. Box 245112
Brooklyn, New York 11224
516-204-4775 (phone)
516-394-0855 (fax)
Business-related email should be directed to: djtoellpc @ gmail . com
Have a good weekend, all.
Tuesday, September 25, 2007
Fraudulent Fraud
At the suggestion (almost a threat, really) of David M. Gottleib, Esq., I'm reposting a comment of mine from the previous entry. An anonymous insurance defense attorney asked: "Provider fraud should NEVER be waived. When did fraud stop being fraud?" I said:
The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.
You won't find the word "fraud" anywhere in the majority or concurring opinions in Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), but only in the majority opinion, and not in the way carriers like: "The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices." New York's seminal no-fault cases don't create a solid foundation for anything that should be referred to as a "fraud defense."
Indeed, "fraud" isn't the word you want to use if you're a good insurance defense attorney. You want to say "lack of coverage." The Appellate Division, Second Department has reminded us a few times of this distinction, but it still goes basically unnoticed. Then again, "lack of coverage" isn't a catchphrase that instills fear in anyone's heart.
All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in Fair Price. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.
--
As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as Matter of Eagle Ins. Co. v. Davis, 22 A.D.3d 846 (2d Dep't, 2005). There, regarding an allegation, made as part of a petition to stay a UM arbitration, that an alleged collision was fraudulent in nature, the Court held: "When a petition raises an issue of fact as to whether the automobile collision giving rise to the underlying request for arbitration was deliberate or intentional, the issue of fraud is subsumed under the coverage issue. Evidence of such fraud should be considered in determining the broader coverage issue." Id. (internal citations omitted).
The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.
You won't find the word "fraud" anywhere in the majority or concurring opinions in Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), but only in the majority opinion, and not in the way carriers like: "The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices." New York's seminal no-fault cases don't create a solid foundation for anything that should be referred to as a "fraud defense."
Indeed, "fraud" isn't the word you want to use if you're a good insurance defense attorney. You want to say "lack of coverage." The Appellate Division, Second Department has reminded us a few times of this distinction, but it still goes basically unnoticed. Then again, "lack of coverage" isn't a catchphrase that instills fear in anyone's heart.
All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in Fair Price. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.
--
As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as Matter of Eagle Ins. Co. v. Davis, 22 A.D.3d 846 (2d Dep't, 2005). There, regarding an allegation, made as part of a petition to stay a UM arbitration, that an alleged collision was fraudulent in nature, the Court held: "When a petition raises an issue of fact as to whether the automobile collision giving rise to the underlying request for arbitration was deliberate or intentional, the issue of fraud is subsumed under the coverage issue. Evidence of such fraud should be considered in determining the broader coverage issue." Id. (internal citations omitted).
Saturday, September 22, 2007
More and More Appealing
In a move that likely fell under most radars, the Appellate Division, 2d Department has granted the defendant's motion for leave to appeal their decision in Fair Price Medical Supply Corp. v. Travelers Indem. Co., 42 A.D.3d 277 (2d Dep't, 2007) to the Court of Appeals. The App. Div. has posted the motion decision.
I have a feeling that the judges are going to get less and less sympathetic to the defendant's position the higher up the appeal goes on the food chain. Personally, I don't see the Court of Appeals reconsidering the underlying rationale of Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997), no matter how much some of us would like that to occur in light of the state of things ten years on.
I have a feeling that the judges are going to get less and less sympathetic to the defendant's position the higher up the appeal goes on the food chain. Personally, I don't see the Court of Appeals reconsidering the underlying rationale of Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997), no matter how much some of us would like that to occur in light of the state of things ten years on.
Tuesday, August 28, 2007
I Always Feel Like Somebody's Watching Me
In Delta Diagnostic Radiology, P.C. v Chubb Group of Ins, 2007 NYSlipOp 27345 (App. Term, 2d Dep't, 2007), the Appellate Term has finally made explicit, as I previously argued on this blog, that a party need not produce an affidavit from someone whose duty it is to ensure compliance with standard procedures when attempting to create a presumption of mailing. Rather than expressly overturning their own prior decisions on the matter, the App. Term simply stated that such prior decisions "should not be interpreted" as saying what they obviously say. In any event, I'm glad that the issue was finally presented for appeal. We'll see how long it takes for this ruling to filter its way down to the Civil and District Courts.
Tuesday, July 24, 2007
Shock the Conscience
In a decision of likely interest to defense counsel, Judge Howard S. Miller of the District Court, Nassau County, Hempstead Part issued a Decision/Order concerning settlement stipulations often done by the law firm of Israel, Israel & Purdy, LLP. See Omega Diagnostic Imaging, P.C. v State Farm Mut. Ins. Co., 2007 NY Slip Op 51405(U) (Dist. Ct., Nass. Cty., 2007). Typically, Israel puts a clause in their settlement stips that provide that, should the settled-for amount not be paid within 30 (or however many) days, judgment will be entered for the full amount demanded in the Complaint, including full statutory interest, et al.
Judge Miller held (correctly, in my opinion) that there is no basis to stay enforcement of the portion of the stipulation in question. The Court cited to ABCO Refrigeration Supply Corp. v Designs by Keiser Corp., 239 A.D.2d 165 (1st Dep't, 1997) for the proposition that, there being no allegation of fraud, mistake, etc., there is no basis to vacate a stipulation that essentially calls for the defendant to pay the full amount of the Complaint.
State Farm, by Picciano & Scahill, P.C., cited to some Second Department case law for the proposition that unconscionable stipulations should not be enforced. Judge Miller found State Farm's cited case law to be distinguishable and/or sui generis. In any event, Judge Miller found that $2,578, the difference between the settled-for amount and the amount of the judgment, did not shock the Court's conscience.
Those Israel settlement stips are potentially dangerous, to be sure, but things would work a lot more smoothly on a lot of fronts if the carriers made payments quickly, anyway.
Judge Miller held (correctly, in my opinion) that there is no basis to stay enforcement of the portion of the stipulation in question. The Court cited to ABCO Refrigeration Supply Corp. v Designs by Keiser Corp., 239 A.D.2d 165 (1st Dep't, 1997) for the proposition that, there being no allegation of fraud, mistake, etc., there is no basis to vacate a stipulation that essentially calls for the defendant to pay the full amount of the Complaint.
State Farm, by Picciano & Scahill, P.C., cited to some Second Department case law for the proposition that unconscionable stipulations should not be enforced. Judge Miller found State Farm's cited case law to be distinguishable and/or sui generis. In any event, Judge Miller found that $2,578, the difference between the settled-for amount and the amount of the judgment, did not shock the Court's conscience.
Those Israel settlement stips are potentially dangerous, to be sure, but things would work a lot more smoothly on a lot of fronts if the carriers made payments quickly, anyway.
Wednesday, July 18, 2007
Barnes & No-fault
According to the sidebar on David M. Gottlieb, Esq.'s blog, No-Fault Paradise, he's currently re-reading David Foster Wallace's 1996 novel 'Infinite Jest'. I admire that Mr. Gottlieb is still able to get any reading done; I have had a tough time of keeping at it since law school. I also admire that he has been able to finish 'Infinite Jest' (more than once?) and wants to go back for more. I tried starting it a few times, the most recent being August 14, 2003, when the Northeast had a blackout. Somehow it fails to grab me enough. I found Wallace's debut novel, 1987's 'The Broom of the System,' to be a bit more agreeable. I think I finished it, or at least came close.
As to my avoidance of 'Infinite Jest,' I would confess that I am afraid of Big Important Novels, but I don't think it's true. I spent much of my law school years (and tapering off thereafter) chewing up books like 'J R' and 'A Frolic of his Own' by William Gaddis (I think I got through the first chapter or two of 'The Recognitions' at one point), most everything by Don DeLillo, Thomas Pynchon's 'V.', most of the core works of Thomas Bernhard (which I guess don't quite qualify as 'big'), and even wannabe fare like Jonathan Franzen's 'The Corrections.' Then again, despite owning perhaps several hundred books, I can no longer seem to sit down and actually read any. Oddly enough, the subway commute I had during most of law school (Williamsburg<-->Greenwich Village) provided an ideal, structured time for plowing through books at a decent pace.
As to my avoidance of 'Infinite Jest,' I would confess that I am afraid of Big Important Novels, but I don't think it's true. I spent much of my law school years (and tapering off thereafter) chewing up books like 'J R' and 'A Frolic of his Own' by William Gaddis (I think I got through the first chapter or two of 'The Recognitions' at one point), most everything by Don DeLillo, Thomas Pynchon's 'V.', most of the core works of Thomas Bernhard (which I guess don't quite qualify as 'big'), and even wannabe fare like Jonathan Franzen's 'The Corrections.' Then again, despite owning perhaps several hundred books, I can no longer seem to sit down and actually read any. Oddly enough, the subway commute I had during most of law school (Williamsburg<-->Greenwich Village) provided an ideal, structured time for plowing through books at a decent pace.
Carsherchesputin
I just wanted to bring to the top a comment posted last night to an old post on this blog:
At Tuesday, July 17, 2007 8:45:00 PM, Anonymous said...
Things have been heating up in the Carothers, Sher, Chess and Rasputin arena as the connections we all know exist are surfacing so ever slightly...What an industry this No Fault Insurance is Very challenging to prosecutors and law enforcement..sometimes too challenging LOL
While one of those references may seem a bit obtuse, it does all fit together, one way or another. I have no clue who our anonymous commenter is, but he/she is more than welcome to continue contributing, preferably to more recent and visible posts. :)
At Tuesday, July 17, 2007 8:45:00 PM, Anonymous said...
Things have been heating up in the Carothers, Sher, Chess and Rasputin arena as the connections we all know exist are surfacing so ever slightly...What an industry this No Fault Insurance is Very challenging to prosecutors and law enforcement..sometimes too challenging LOL
While one of those references may seem a bit obtuse, it does all fit together, one way or another. I have no clue who our anonymous commenter is, but he/she is more than welcome to continue contributing, preferably to more recent and visible posts. :)
Friday, June 15, 2007
Giving Someone a Widgie
Below please find a new widget I have created for the blog. Feel free to click "copy me" (which can be found when you mouseover the widget's title bar) and embed on your own site or blog. (Don't worry, I'm not holding my breath.)
Thanks to Thomas Swartz, Esq. for the tip.
Thanks to Thomas Swartz, Esq. for the tip.
Monday, June 11, 2007
Schepp, Part X_X
The Appellate Term, Second Department released its long awaited decisions today in Boston Post Rd. Med. Imaging, P.C. a/a/o Adrian Black v. Progressive Ins. Co., 2007 NYSlipOp 51173(U) (App. Term, 2d Dep't, 2007) and Boston Post Rd. Med. Imaging, P.C. a/a/o Ira Bright v. Progressive Ins. Co., 2007 NYSlipOp 51174(U) (App. Term, 2d Dep't, 2007). Judge Gianelli of District Court, Nassau County, Hempstead Part had granted Progressive, represented by McDonnell & Adels, summary judgment as to their contention that the provider was not a properly licensed entity under the meaning of State Farm v. Mallela, 4 NY3d 313 (2005), and hence not entitled to no-fault benefits.
Justices Rudolph, McCabe, and Tanenbaum don't see it that way. In their estimation, the evidence proffered by Progressive was insufficient to satisfy Mallela. Of course, they give no guidance as to why the evidence was insufficient or what evidence would actually be sufficient.
Very interestingly, the App. Term does implicitly hold that, if proven, the fact that a provider sold its accounts receivable would constitute a defense to no-fault payment. Compare, Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 13 Misc 3d 549 (Civ. Ct., Kings Cty., 2006; Battaglia, J.). Somehow, though, an executed contract selling said accounts receivable (along with an admission of such contract by provider's counsel, but with a differing interpretation) does not prove same. The App. Term's evidentiary rationale is too weak to suffice as a explanation for their decision; we still live under the rule that allegations made in a motion are deemed admitted unless rebutted. Kuehne & Nagel v. Baiden, 36 NY2d 539 (1975); Schneider Fuel Oil, Inc. v. DeGennaro, 238 A.D.2d 495 (2d Dep't, 1997). It has also been true since at least 1899 that "[i]n a civil action[,] the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made." Reed v. McCord, 160 N.Y. 330, 341 (1899). Perhaps the Appellate Term is waiting for an opportunity to physically observe the execution of said contract.
Either way, despite that one glimmer of hope, at this point the rulings do not bode well for the carriers in the ongoing litigation with Dr. Schepp in Supreme Court, Nassau County or the numerous suits involving Andrew Carothers, M.D., P.C. (which was the successor entity to Dr. Schepp's Boston Post Road Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Deajess Medical Imaging, P.C.). Presumably the carriers are hoping that the judges overseeing those matters will not be as gun-shy as the App. Term was in the decisions released today.
Justices Rudolph, McCabe, and Tanenbaum don't see it that way. In their estimation, the evidence proffered by Progressive was insufficient to satisfy Mallela. Of course, they give no guidance as to why the evidence was insufficient or what evidence would actually be sufficient.
Very interestingly, the App. Term does implicitly hold that, if proven, the fact that a provider sold its accounts receivable would constitute a defense to no-fault payment. Compare, Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 13 Misc 3d 549 (Civ. Ct., Kings Cty., 2006; Battaglia, J.). Somehow, though, an executed contract selling said accounts receivable (along with an admission of such contract by provider's counsel, but with a differing interpretation) does not prove same. The App. Term's evidentiary rationale is too weak to suffice as a explanation for their decision; we still live under the rule that allegations made in a motion are deemed admitted unless rebutted. Kuehne & Nagel v. Baiden, 36 NY2d 539 (1975); Schneider Fuel Oil, Inc. v. DeGennaro, 238 A.D.2d 495 (2d Dep't, 1997). It has also been true since at least 1899 that "[i]n a civil action[,] the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made." Reed v. McCord, 160 N.Y. 330, 341 (1899). Perhaps the Appellate Term is waiting for an opportunity to physically observe the execution of said contract.
Either way, despite that one glimmer of hope, at this point the rulings do not bode well for the carriers in the ongoing litigation with Dr. Schepp in Supreme Court, Nassau County or the numerous suits involving Andrew Carothers, M.D., P.C. (which was the successor entity to Dr. Schepp's Boston Post Road Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Deajess Medical Imaging, P.C.). Presumably the carriers are hoping that the judges overseeing those matters will not be as gun-shy as the App. Term was in the decisions released today.
Tuesday, June 05, 2007
A Lifelong Swan Song
For what its worth, the BG&S website has some articles I've authored, each of which should have been published by now in "The Suffolk Lawyer," which is put out by The Suffolk County Bar Association:
All of the articles should be of interest to readers of this blog. Enjoy.
All of the articles should be of interest to readers of this blog. Enjoy.
A Short Notice
Please be advised that I am no longer associated with the office of Bruno, Gerbino & Soriano, LLP. I can still be contacted at djtoell @ gmail.com. A resume is available upon request for any interested persons. For the immediate future, I will be in Civil Court, Kings County for per diem appearances.
Friday, April 27, 2007
Let's Get Ready To Humble
The App. Div., 2d Dep't has some very spiffy PDF files available for the three decisions discussed yesterday, in case you happen to like attaching such spiffy-looking documents to your motion papers (or if you're Skip Short, Esq. and deservedly want to frame them): A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007).
I also can't wait to see who throws the next punch in the battle royale occurring in the comments section of my previous post. Can anyone top a slapdown from David M. Barshay, Esq.? I'm thinking it will take another named partner. Then again, the looming spectre of Skip Short, and the results he got in the aforementioned cases, may provide the ultimate trump card...
I also can't wait to see who throws the next punch in the battle royale occurring in the comments section of my previous post. Can anyone top a slapdown from David M. Barshay, Esq.? I'm thinking it will take another named partner. Then again, the looming spectre of Skip Short, and the results he got in the aforementioned cases, may provide the ultimate trump card...
Thursday, April 26, 2007
Hell: Experiencing Intermittent Flurries
Three highly important decisions were put out today by the Appellate Division, Second Department: A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007). These decisions reverse (both specifically and in practical terms) a host of Appellate Term, Second Department cases whereby it was held that a no-fault denial of claim form (NF-10) would be legally insufficient if it merely stated that said denial was based upon the results of a peer review or IME. That is, if a denial were based upon the results of a peer review or IME, the Appellate Term repeatedly held that a carrier had to issue a denial that either attached the peer/IME report or otherwise included the medical rationale of said report.
The Appellate Division's decision from today in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. sets out the thrust of their reversal of the Appellate Term:
"To the extent the Appellate Term's order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided."
This is a seismic change with a level of force far beyond the Richter Scale in the realm of no-fault medical necessity litigation and arbitrations. It also solidifies a trend by the Appellate Division to pull back the reins on some of the more "creative" Appellate Term decisions.
I expect to see a legion of defense attorneys waving these decisions around in court tomorrow...
The Appellate Division's decision from today in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. sets out the thrust of their reversal of the Appellate Term:
"To the extent the Appellate Term's order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided."
This is a seismic change with a level of force far beyond the Richter Scale in the realm of no-fault medical necessity litigation and arbitrations. It also solidifies a trend by the Appellate Division to pull back the reins on some of the more "creative" Appellate Term decisions.
I expect to see a legion of defense attorneys waving these decisions around in court tomorrow...
Tuesday, March 27, 2007
Gimme Gimme Gimme (Amendments After Midnight)
Please note that on March 14, 2007, the Third Amendment to Regulation 68-C (11 NYCRR § 65-3) and the Fourth Amendment to Regulation 68-D (11 NYCRR § 65-4) went into effect. The amendments concern arbitration procedures when disputes arise as to which insurance carrier is required to cover a given claim. My, how the New Regs have grown up since April 2002!
Friday, March 23, 2007
Whole Wheat Rollin'
Please take notice of the recent addition to my NY blawg roll on the left side of your screen: New York Legal Update by Thomas Swartz, Esq., a former court attorney with the App. Div., 2d Dep't. After only a few weeks, Mr. Swartz has developed an entertaining and informative blawg, so let's hope it becomes a fixture for NY practitioners (i.e., so that Mr. Swartz can't take it with him when his lease runs out).
Thursday, March 22, 2007
Having One's Priorities in Order
Just when you thought it was safe to do online research on New York No-Fault Law, I make my triumphant return. Many thanks to the likes of David Barshay, Esq., Vincent Pirro, Esq., and many others who have accosted me in public for my failure to keep the blog updated. I could give you some excuses, but a) they don't even sound believable to me, and b) you wouldn't care, anyway, would you?
Onto the important stuff.
The Court of Appeals issued its decision yesterday in Nyack Hosp. v General Motors Acceptance Corp., 2007 NY Slip Op 02439 (Ct. of App., 2007) (There is also a PDF version available).
Oral arguments were heard back on Feb. 8. Your humble blogger was lucky enough to discuss the matter with both Joseph Henig, Esq. (counsel for Appellant-Plaintiff) and Craig J. Freiberg, Esq. (counsel for Respondent-Defendant). Both expressed valid concerns over the outcome of the case, and it is interesting to see how the Court worked out such a seemingly bland technical matter; they also seem to me to have come to the correct conclusion.
In sum, the Court held that a claim is not considered received for purposes of attaining priority of payment until all requested verification has been provided. Priority of payment is crucial where, as in Nyack v. GMAC, the policy is or is about to be exhausted, and the carrier therefore either cannot pay the claim at all or can only pay a portion thereof. Nyack Hospital, through Mr. Henig, contended that they should have received an additional $15,009.21, representing the difference in basic economic loss coverage available as of the day their claim was received by GMAC as opposed to the day on which GMAC received their responses to the verification requests.
Still, all is not perfect for the carriers. The Court held that a claim acquires priority status even if the eligible injured person has not yet submitted their OBEL ("Optional Basic Economic Loss") coverage election (see, if you want to fall asleep, the prescribed OBEL coverage endorsement at 11 NYCRR § 65-1.2), at least with respect to those claims or portions of claims that can still be paid out under the core $50,000 of basic economic loss coverage. So, while GMAC was justified in waiting some amount of time to give Nyack's claims priority, it should not have waiting for the OBEL election.
In hard numbers on the facts of this case, this means that Nyack will be getting a judgment for $863.21, representing the amount of basic economic loss coverage that GMAC paid out on other claims from the time that Nyack provided verification for its claim and GMAC received the eligible injured person's OBEL election. Attorney's fees will be a whopping $172.64.
Even if the final outcome in this matter was more or less trivial in comparison to the dollar amount being sought, I have little doubt that the impact of today's decision will be wide-reaching. Hospitals often submit the no-fault claims with the largest monetary value as to any given EIP (Nyack's claim alone was in excess of the coverage limits), and determining priority of payment can easily be a difference of tens of thousands of dollars.
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Generally speaking, it is a rarity for the Court of Appeals to take up a no-fault case. However, yesterday they granted leave for appeal in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. See the App. Div., 2d Dep't's original decision at Hosp. for Joint Diseases v. Travelers, 34 A.D.3d 532 (App. Div., 2d Dep't, 2006). The decision is too vague to really set down the nature of the dispute, so any commentary from those familiar with the case would be appreciated.
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Dr. Andrew Carothers, M.D. is scheduled to be deposed this coming Tuesday, March 27 with regard to Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP and Freiberg & Peck, LLP, 13 Misc.3d 970 (Civ. Ct., Richmond Cty., 2006) and numerous other matters pending in Richmond Cty.
Onto the important stuff.
The Court of Appeals issued its decision yesterday in Nyack Hosp. v General Motors Acceptance Corp., 2007 NY Slip Op 02439 (Ct. of App., 2007) (There is also a PDF version available).
Oral arguments were heard back on Feb. 8. Your humble blogger was lucky enough to discuss the matter with both Joseph Henig, Esq. (counsel for Appellant-Plaintiff) and Craig J. Freiberg, Esq. (counsel for Respondent-Defendant). Both expressed valid concerns over the outcome of the case, and it is interesting to see how the Court worked out such a seemingly bland technical matter; they also seem to me to have come to the correct conclusion.
In sum, the Court held that a claim is not considered received for purposes of attaining priority of payment until all requested verification has been provided. Priority of payment is crucial where, as in Nyack v. GMAC, the policy is or is about to be exhausted, and the carrier therefore either cannot pay the claim at all or can only pay a portion thereof. Nyack Hospital, through Mr. Henig, contended that they should have received an additional $15,009.21, representing the difference in basic economic loss coverage available as of the day their claim was received by GMAC as opposed to the day on which GMAC received their responses to the verification requests.
Still, all is not perfect for the carriers. The Court held that a claim acquires priority status even if the eligible injured person has not yet submitted their OBEL ("Optional Basic Economic Loss") coverage election (see, if you want to fall asleep, the prescribed OBEL coverage endorsement at 11 NYCRR § 65-1.2), at least with respect to those claims or portions of claims that can still be paid out under the core $50,000 of basic economic loss coverage. So, while GMAC was justified in waiting some amount of time to give Nyack's claims priority, it should not have waiting for the OBEL election.
In hard numbers on the facts of this case, this means that Nyack will be getting a judgment for $863.21, representing the amount of basic economic loss coverage that GMAC paid out on other claims from the time that Nyack provided verification for its claim and GMAC received the eligible injured person's OBEL election. Attorney's fees will be a whopping $172.64.
Even if the final outcome in this matter was more or less trivial in comparison to the dollar amount being sought, I have little doubt that the impact of today's decision will be wide-reaching. Hospitals often submit the no-fault claims with the largest monetary value as to any given EIP (Nyack's claim alone was in excess of the coverage limits), and determining priority of payment can easily be a difference of tens of thousands of dollars.
--
Generally speaking, it is a rarity for the Court of Appeals to take up a no-fault case. However, yesterday they granted leave for appeal in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. See the App. Div., 2d Dep't's original decision at Hosp. for Joint Diseases v. Travelers, 34 A.D.3d 532 (App. Div., 2d Dep't, 2006). The decision is too vague to really set down the nature of the dispute, so any commentary from those familiar with the case would be appreciated.
--
Dr. Andrew Carothers, M.D. is scheduled to be deposed this coming Tuesday, March 27 with regard to Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP and Freiberg & Peck, LLP, 13 Misc.3d 970 (Civ. Ct., Richmond Cty., 2006) and numerous other matters pending in Richmond Cty.
Tuesday, January 30, 2007
No-Fault Song Parody Contest. (Seriously.)
I'm inclined to question the fitness to practice law of my friend Matthew S. Lerner, Esq. of the New York Civil Law blawg.
Today, he announced a no-fault-based song parody contest. He also points out that Deney Terrio's last name rhymes with the last name of former NYS Insurance Department Superintendent Gregory V. Serio (as in Med. Soc'y v. Serio, 100 N.Y.2d 854 (2003)). I'm a bit frightened to even mention that he (allegedly) makes something else rhyme with the last name of Dr. Robert Chandran Mallela, M.D. (as in State Farm v. Mallela, 4 N.Y.3d 313 (2005)).
I may just close down this blog entirely if anyone starts rhyming Frances J. Roggio (as in Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 (1985)); Karen DeGuisto (as in Presbyterian Hosp. a/a/o DeGuisto v. Maryland Cas. Co., 90 N.Y.2d 274 (1997)); or Pamela Mandresh (as in Central Gen. Hosp. a/a/o Mandresh v. Chubb Group of Ins. Cos., 90 N.Y.2d 195 (1997)).
Which Judicial District's Grievance Committee should I be contacting for Matthew? ;)
Today, he announced a no-fault-based song parody contest. He also points out that Deney Terrio's last name rhymes with the last name of former NYS Insurance Department Superintendent Gregory V. Serio (as in Med. Soc'y v. Serio, 100 N.Y.2d 854 (2003)). I'm a bit frightened to even mention that he (allegedly) makes something else rhyme with the last name of Dr. Robert Chandran Mallela, M.D. (as in State Farm v. Mallela, 4 N.Y.3d 313 (2005)).
I may just close down this blog entirely if anyone starts rhyming Frances J. Roggio (as in Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 (1985)); Karen DeGuisto (as in Presbyterian Hosp. a/a/o DeGuisto v. Maryland Cas. Co., 90 N.Y.2d 274 (1997)); or Pamela Mandresh (as in Central Gen. Hosp. a/a/o Mandresh v. Chubb Group of Ins. Cos., 90 N.Y.2d 195 (1997)).
Which Judicial District's Grievance Committee should I be contacting for Matthew? ;)
Monday, January 29, 2007
We've Gone on Holiday by Mistake
Sorry about the recent lull in updates. Between the holidays, and then a post-holiday excursion to Vegas (and the post-excursion crush of work that followed it), things have been a bit diffuse. Anyway, with some luck, more regular updates will be resuming.
As far as the pending matters involving the EBT of Andrew Carothers, M.D. as ordered by Civil Court, Richmond County last year (see order here), another decision and order is pending, and an update on same will come at the appropriate time.
And five points to whoever spots the source of the quote for this post's title. ;)
As far as the pending matters involving the EBT of Andrew Carothers, M.D. as ordered by Civil Court, Richmond County last year (see order here), another decision and order is pending, and an update on same will come at the appropriate time.
And five points to whoever spots the source of the quote for this post's title. ;)
Friday, January 26, 2007
Bring the Beat Back
Perhaps the Appellate Division, Second Department is reading this blog. Probably not. Either way, though, the App. Div. has overturned the decision by Justice Phelan of Supreme Court, Nassau County wherein it was held that insurance carriers were precluded from raising the defense of a lack of medical necessity as against a no-fault claim brought by an MRI provider. See Long Is. Radiology v Allstate Ins. Co., 2007 NY Slip Op 00496 (App. Div., 2d Dep't, 2007). You can see Justice Phelan's original order here.
As one might suspect, I think the App. Div. got it very, very right. And while they're surely not reading this blog, they did cite to two different cases I've discussed on the topic (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006), and Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 (Civ. Ct., Kings Cty., 2005)).
The core of the App. Div.'s new decision is as follows:
An assignee stands in the shoes of an assignor and thus acquires no greater rights than its assignor. Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits. (Citations and internal quotation marks omitted.)
The various insurance defense firms who prosecuted the Long Is. Radiology appeal should be commended for their fine work.
As one might suspect, I think the App. Div. got it very, very right. And while they're surely not reading this blog, they did cite to two different cases I've discussed on the topic (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006), and Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 (Civ. Ct., Kings Cty., 2005)).
The core of the App. Div.'s new decision is as follows:
An assignee stands in the shoes of an assignor and thus acquires no greater rights than its assignor. Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits. (Citations and internal quotation marks omitted.)
The various insurance defense firms who prosecuted the Long Is. Radiology appeal should be commended for their fine work.
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