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.


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.