tag:blogger.com,1999:blog-238096062024-03-08T12:21:09.203-05:00It's No-Fault of NYNew York State No-Fault Insurance Law News, Analysis and CommentaryDamin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.comBlogger104125tag:blogger.com,1999:blog-23809606.post-77620940803330799962010-12-16T15:29:00.003-05:002010-12-16T18:33:22.649-05:00How do you spell "Pyrrhic victory"?A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.<br /><br /><a href="http://nycourts.gov/reporter/3dseries/2010/2010_09256.htm">Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).</a><br /><br />So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills. Instead, the medical office would create the bills, the billing company would access them online, print them out, and mail them. The Appellate Division now affirms the holding of the Appellate Term that this is insufficient to establish the admissibility of the bills.<br /><br />This is probably the correct outcome.<br /><br />BUT...<br /><br />The Appellate Division now holds (and this ain't dicta, this is essential to the holding) that "although <b>a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures</b>, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations." (Emphasis mine.)<br /><br />Thus, where a third-party biller witness lacks personal knowledge of the medical provider's procedures, the biller can still get the bills into evidence so long as:<br />1) the information received from the medical office was incorporated in the billing company's records, OR<br />2) the information received from the medical office is used in the billing company's day-to-day operations.<br /><br />In the standard scenario of a third-party biller witness (or affiant, for that matter) who creates the bills based on information received from the medical office, the biller should now be able to get the bills into evidence even if the biller has no personal knowledge of the medical office's procedures, so long as at least one of the elements of <u>Carothers</u> is satisfied.<br /><br />This just so happens to overrule every Appellate Term decision that held that a third-party biller cannot get the bills into evidence solely on the basis that the biller lacks personal knowledge of the procedures of the medical office. <i>See, e.g.,</i>, <a href="http://www.nycourts.gov/reporter/3dseries/2010/2010_50065.htm">Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132(A) (App. Term, 2d Dep't, 2010).</a><br /><br />Merry Christmas.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com3tag:blogger.com,1999:blog-23809606.post-31164466645024252802009-07-30T16:42:00.003-04:002009-07-30T16:45:32.552-04:00Coverage CounselI'm not sure how it's possible, but apparently I never, before now, had a link in my blogroll to Roy A. Mura, Esq.'s wonderful blog <a href="http://nycoveragecounsel.blogspot.com/">Coverage Counsel</a>. Mr. Mura's posts deal with no-fault issues, as well as a much wider range of insurance law matters.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com5tag:blogger.com,1999:blog-23809606.post-1199714904717039882009-07-23T14:43:00.002-04:002009-07-23T15:05:21.495-04:00Provider EUOsDavid M. Gottlieb, Esq. has <a href="http://nofaultparadise.blogspot.com/2009/07/examinations-under-oath-of-assignees.html">previously covered this issue at No-Fault Paradise</a>, but it seems to me that it's worth some additional attention.<br /><br />On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled <a href="http://ins.state.ny.us/ogco2009/rg090610.htm">"Examinations Under Oath of Assignees"</a>. The short question/answer summary is as follows:<br /><br />"<i>Question:<br />May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?<br /><br />Answer:<br />No. 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.</i>"<br /><br />As the Insurance Department noted, "nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice." The Department therefore reasoned that there is, in fact, no allowance for the insurer to request the production of a specific person at an EUO. However, the Department opined that, if the provider does produce someone for the EUO, and that person is unable to provide the information sought, "the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the items necessary to verify the claim." (Internal quotation marks omitted).<br /><br />In his post, Mr. Gottlieb asked what is presumably the most important and immediate question for practitioners: "Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?"<br /><br />I'm not sure that there's an easy answer here, but it seems to me that if an insurer requests that a specific person (presumably, a professional shareholder) appear at an EUO, and only requests the appearance of that person, the request is invalid. It would seem that it would be invalid, <i>ab initio</i>, for an insurer to request something that it is simply not entitled to. To the extent that a provider could choose to produce a different person in response to such a request, the provider would be under no duty to do so given the specific nature of the request. As such, non-attendance (by anyone from the provider) at such a requested EUO should not constitute a failure to provide verification or to otherwise cooperate, as the insurer had no authority to make such a request in the first place.<br /><br />It therefore appears to me that requesting that a provider produce a specific person at an EUO is no more valid than an insurer requesting an EUO at all under the Old Regulations (which contained no specific provision whatsoever allowing for EUOs as a form of verification). <i>See</i> <a href="http://www.nycourts.gov/reporter/3dseries/2004/2004_50311.htm"><u>King's Med. Supply v. Progressive Ins.</u>, 3 Misc.3d 126(A) (App. Term, 2d Dep't, 2004)</a>, holding that "[s]ince there was no provision authorizing such a procedure, defendant's request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim."Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com3tag:blogger.com,1999:blog-23809606.post-35439266418926512672009-07-21T16:19:00.004-04:002009-07-21T16:21:15.316-04:00An Addition to the BlogrollI've been meaning to add it in for a while, but now that I finally got around to updating the layout of the blog (which shouldn't look much different to the reader, hopefully), I've added a link to <a href="http://nofaultdefenseattorneys.blogspot.com/">No Fault Law - A Defense Attorney's Perspective</a>. It's worth taking a look at.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com0tag:blogger.com,1999:blog-23809606.post-81241126959138947752009-07-16T13:01:00.004-04:002009-07-16T17:39:33.964-04:00The Death of the Assignment of Benefits?In 2007, the Court of Appeals reaffirmed the longstanding Appellate Division case law "that a carrier's failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies." <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_09067.htm"><u>Hospital for Joint Diseases v. Travelers Property Cas. Ins. Co.</u>, 9 N.Y.3d 312, 318 (2007)</a>. The Appellate Division had long held that this rule precluded defenses related to, <i>inter alia</i>, the assignment of benefits form. The Court of Appeals therefore held "that the failure by Travelers to seek verification of the assignment in a timely manner prevents the carrier from litigating the issue now." <u>Id.</u> at 319.<br /><br />Left open was the question of whether proof of the assignment is a part of a no-fault plaintiff's <i>prima facie</i> case. Travelers contended before the Court of Appeals that proof of the assignment was, indeed, a necessary component of a plaintiff's proof. The Court avoided the issue by holding that, "[e]ven assuming that this is true, we conclude that an assignment form stating that the patient's signature is 'on file' satisfies that burden where the carrier does not timely take action to verify the existence of a valid assignment." <u>Id.</u> at 320.<br /><br />The Appellate Term, 2d Dep't, has since taken the <u>Hospital for Joint Diseases</u> decision and run with it. In <a href="http://www.nycourts.gov/reporter/3dseries/2009/2009_51385.htm"><u>Westchester Neurodiagnostic, P.C. v. Allstate Ins. Co.</u></a>, decided last month, the App. Term held that "proof of the assignment of benefits form is not an element of plaintiff's prima facie case." ___ Misc.3d ___, 2009 NY Slip Op 51385(U) (App. Term, 2d Dep't, 2009). I believe this is the first time an appellate court has explicitly announced this rule.<br /><br />This month, in <a href="http://nycourts.gov/reporter/3dseries/2009/2009_29299.htm"><u>Davydov v. Progressive Ins. Co.</u></a>, the Appellate Term dealt with the situation of an assignment form existing, but not actually naming the proper parties. ___ Misc.3d ___, 2009 NY Slip Op 29299 (App. Term, 2d Dep't, 2009). In that case, the assignee was misidentified as "Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS." <u>Id.</u> Nevertheless, citing to <u>Hospital for Joint Diseases</u>, and over a dissent by Justice Golia, the Appellate Term held that even this issue was waived.<br /><br />I wouldn't be surprised if the carriers in <u>Westchester Neurodiagnostic</u> and <u>Davydov</u> try taking their arguments to the Appellate Division, but these decisions represent the current state of the law on assignments. It would thus appear now that, without having made verification requests, no assignment-related defense will hold any water. Indeed, in such situations, the assignment form should not even be subject to production through the discovery process, as discovery demands related to precluded defenses are palpably improper. <i>See</i> <a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_28291.htm"><u>Midborough Acupuncture, P.C. v. State Farm Ins. Co.</u></a>, 21 Misc.3d 10, 12 (App. Term, 2d Dep't, 2008).<br /><br />On the other hand, I have no question in my mind that many trial court judges will continue to consider the assignment a necessary part of a plaintiff's burden. Some judges still continue to hold that an assignor's signature on the assignment form must be authenticated in order for a plaintiff to make out its <i>prima facie</i> case, even though the Appellate Term has held otherwise for years. <i>See</i> <u>A.B. Medical Services PLLC v. Prudential Property & Cas. Ins. Co.</u>, 7 Misc.3d 14 (App. Term, 2d Dep't, 2005). That being said, any judge reading this would necessarily be too well-informed to make such an error.<br /><br />And, of course, many defense attorneys who know better still continue to make such frivolous arguments while feigning ignorance of the last decade of no-fault jurisprudence. I've had defense attorneys tell me, with a straight face, that <u>Hospital for Joint Diseases</u> doesn't preclude them from questioning the validity of the language of the assignment form for the first time at trial.<br /><br />If anyone believes that, in the absence of relevant verification requests, any assignment-related defenses still survive, please feel free to share.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-8421447170630101922009-06-25T11:40:00.002-04:002009-06-25T11:55:39.289-04:00State Farm v. LanganIn <a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_06980.htm"><u>State Farm Mut. Auto. Ins. Co. v. Langan</u>, 55 A.D.3d 281 (2d Dep't, 2008)</a>, the Appellate Division, 2d Department, held that, regarding no-fault benefits, a loss is "accidental" where the incident is "unexpected, unusual and unforeseen" from the point of view of the injured person. Generally speaking, this struck a blow against insurers who seek to disclaim coverage where only one person intentionally caused the loss. Thus, for example, where insurers previously sought to disclaim no-fault coverage for an occupant of a vehicle that was intentionally struck (but where said occupant played no role in the scheme), <u>Langan</u> provides that such a disclaimer would be invalid. The disclaimer would only be appropriate where the insurer can demonstrate that the injured person in question was a party to the intentional conduct.<br /><br />It thus bears noting that, on June 11, 2009, the Court of Appeals dismissed State Farm's further appeal in that matter. See <a href="http://www.nycourts.gov/reporter/motions/2009/2009_74754.htm"><u>State Farm Mut. Auto. Ins. Co. v. John Robert Langan,etc.</u>, 2009 NYSlipOp 74754 (Ct. of App., 2009)</a>, which dismissed the appeal <i>sua sponte</i> on the basis that the App. Div.'s order "does not finally determine the action within the meaning of the Constitution." As a result, the App. Div.'s holding will apparently remain settled law (at least in the 2d Dep't) for the foreseeable future.<br /><br />Practitioners citing to <u>Langan</u> in briefs may consider noting in the citation that the appeal was dismissed (<i>e.g.</i>, <u>State Farm Mut. Auto. Ins. Co. v. Langan</u>, 55 A.D.3d 281 (2d Dep't, 2008), <i>app. dismissed</i>, 2009 NYSlipOp 74754 (Ct. of App., 2009)).Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com0tag:blogger.com,1999:blog-23809606.post-8906664503507623852009-04-03T14:39:00.004-04:002009-04-03T14:51:32.365-04:00EUO No-Show by Patient Subject to PreclusionI'll have a post regarding the unsurprising result in <u>LMK</u> later, but there's a new decision from the Appellate Division, Second Department that requires some attention.<br /><br />The decision in <a href="http://nycourts.gov/reporter/3dseries/2009/2009_02589.htm"><u>Westchester Med. Ctr. v. Lincoln Gen. Ins. Co.</u>, 2009 NY Slip Op 02589 (App. Div., 2d Dep't, 2009)</a> has just been posted.<br /><br />The decision has a few holdings. The ostensible main holding is that letters "advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant's involvement in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts" are not valid verification requests. <u>Id.</u> This holding is nothing groundbreaking.<br /><br />The much more interesting holding comes later: "Where, as here, the defendant's denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff's assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider's right to recover no fault benefits or to toll the 30-day statutory period. Rather, such denial was subject to the preclusion remedy." <u>Id.</u> (internal citations omitted).<br /><br />So, in short, EUO no-shows by patients require timely denials. Presumably this holding also applies to other policy conditions, such as attendance at IMEs. If so, this would extinguish any hope raised by the last sentence of <u>Fogel</u> that such a no-show is a coverage defense because "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs." <a href="http://www.nycourts.gov/reporter/3dseries/2006/2006_09604.htm"><u>Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co.</u>, 35 A.D.3d 720 (2d Dep't, 2006)</a>. Clearly, now, such defenses are not based upon a lack of coverage, and must be denied within 30 days. Presumably, timely and valid requests for EUOs and IMEs still toll the 30 days, but the eventual denial must be timely, as well. So, whatever a "retroactive" denial mentioned in <u>Fogel</u> is, it's still something that must be timely.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-70480468937030562242009-03-03T13:05:00.003-05:002009-03-03T13:18:38.115-05:00MVAIC & Qualified PersonsJudge Noach Dear's decision in <a href="http://nycourts.gov/reporter/3dseries/2009/2009_29085.htm"><u>Kipor Medicine P.C. v. MVAIC</u>, 2009 NY Slip Op 29085 (Civ. Ct., Kings Cty., 2009)</a> was published today on the Slip Opinion site. This was published as a Decision of Interest in the New York Law Journal last week and will be published in the official Miscellaneous Reports.<br /><br />As noted in the version published in the Law Journal, I handled this trial of counsel to the Law Offices of Bruce Newborough for Plaintiff.<br /><br />In the case, MVAIC alleged that it had never received proof of the assignor's residency in New York and that, therefore, the assignor was not a "qualified person" under Insurance Law § 5202(b). As noted by the Court, however, the definition of "qualified person" is not limited to New York residents. Moreover, the fact that MVAIC had not received proof of residency was not sufficient proof that the assignor did not meet the definition of a "qualified person." MVAIC likewise submitted no other proof to demonstrate that the assignor was not qualified.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-25805135886052000162009-02-18T12:58:00.002-05:002009-02-18T13:07:55.873-05:00Timeliness of EUO RequestsThis morning brings us the Appellate Term, 2d Department's decision in <a href="http://nycourts.gov/reporter/3dseries/2009/2009_50224.htm"><u>Great Wall Acupuncture, P.C. v. New York Central Mutual Insurance Company</u>, 2009 NYSlipOp 50224(U) (App. Term, 2d Dep't, 2009)</a>.<br /><br />In a summary judgment motion, "defendant asserted that it timely denied plaintiff's claims based on plaintiff's owner's failure to appear for scheduled examinations under oath (EUOs)." <u>Id.</u> However, the Appellate Term found that "defendant failed to timely request the EUO after receiving plaintiff's bills." <u>Id.</u> As a result, they held that "defendant is precluded from, inter alia, relying upon plaintiff's failure to appear at an EUO as a defense to this action." <u>Id.</u><br /><br />The App. Term has thus established a sharp contrast between EUO requests and IMEs. As the App. Div. held in <a href="http://www.nycourts.gov/reporter/3dseries/2006/2006_09604.htm"><u>Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co.</u>, 35 A.D.3d 720 (2d Dep't, 2006)</u></a>, "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs when, and as often as, the insurer may reasonably require." (Internal quotation marks omitted). Such retroactive denial is not available for EUOs that are not requested under the verification time frames, and a failure to attend untimely-requested EUOs is apparently not a coverage issue.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com2tag:blogger.com,1999:blog-23809606.post-14231784496210398412009-02-12T14:33:00.004-05:002009-02-12T17:48:29.859-05:00LMK UpdateThe newly-shaven David M. Gottlieb, Esq. has <a href="http://nofaultparadise.blogspot.com/2009/02/lmk-arguments-at-court-of-appeals.html">a great post over at No-Fault Paradise</a> about the oral arguments before in the Court of Appeals in <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_10443.htm"><u>LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co.</u>, 46 A.D.3d 1290 (3d Dep't, 2007)</a><br /><br />Based on David's post, both State Farm/Rivkin Radler and the Insurance Dep't. appear to be in The Twilight Zone. When it comes to interest, the argument is that providers should file suit immediately once a claim is denied and/or overdue. When it comes to attorney's fees, however, providers should apparently wait until all treatment is finished to consolidate all bills into a single suit to avoid exhausting the attorney's fees.<br /><br />And, really, let's be honest: the concept of "exhaustion" of attorney's fees is just made up. They invented it out of nowhere for this litigation. Just look at the provisions concerning attorney's fees in the Regs:<br /><br />11 NYCRR § 65-4.6(b)(1) provides that, in a specific scenario, "[i]f the resolved claim was initially denied, the attorney’s fee shall be $80." § 65-4.6(b)(2) provides "[i]f the resolved claim was overdue but not denied, the attorney’s fee shall not exceed..." The word "claim" in these provisions only makes sense if a claim is an individual bill. Otherwise, each "claim" could have a mixture of bills that were denied and not denied, and these provisions would write themselves out of existence.<br /><br />Moreover, § 65-4.6(e) provides that "[f]or all other disputes subject to arbitration, subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850." Thus, at a minimum, <u>each time</u> a court or arbitrator resolves a matter and grants payment to the provider, there is a maximum of $850. There is no "coverage limit" of $850 in attorneys per patient, per provider. This appears nowhere in the Insurance Law, the Mandatory PIP Endorsement, or anywhere else in the Regs.<br /><br />It is disappointing, but not surprising, that a carrier would attempt to fabricate a new category of coverage limit where none actually exists.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com4tag:blogger.com,1999:blog-23809606.post-76997680739993359792009-02-06T15:21:00.002-05:002009-02-06T15:35:30.447-05:00Fraud in the Procurement, Part 2The Appellate Division, 4th Department has issued a decision today that is relevant to <a href="http://nynofaultlaw.blogspot.com/2009/01/fraud-in-procurement.html">my post last week regarding the defense of fraudulent procurement</a>.<br /><br />At the end of that post, I noted that "procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued." I failed to give a citation for this proposition, but the 4th Department has given me a fresh case to cite to.<br /><br />In <a href="http://nycourts.gov/reporter/3dseries/2009/2009_00905.htm"><u>Rafi v Rutgers Cas. Ins. Co.</u></a>, the Court holds that "in order to prevail on its affirmative defense, defendant was required to submit proof concerning its underwriting practices with respect to applicants with similar circumstances in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application." 2009 NYSlipOp 00905 (4th Dep't, 2009) (internal quotation marks omitted).<br /><br />Do note, though, that <u>Rafi</u> does not appear to concern an automobile insurance policy. As such, the reference in that decision to the policy being "void <i>ab initio</i>" due to material misrepresentation is inapplicable to no-fault (and other automobile insurance) litigation. That said, the definition provided in <u>Rafi</u> of what qualifies as a material misrepresentation made in the procurement of the policy should still apply to auto policies.<br /><br />Where the misrepresentation concerns the insured's state of residence, as is typical allegation in no-fault litigation, this is presumably a simple burden for the carrier to meet. That is, where the insured lives in Queens, but procures an automobile insurance policy with the carrier by falsely stating that she lives in Pennsylvania, the carrier should easily be able to produce an affidavit from underwriting stating that the carrier would never have issued a Pennsylvania policy (which has its own set of specific provisions that comply with PA law) to a New York resident. Instead, the affidavit would presumably allege, had the carrier known the truth, the carrier would have either issued a different policy (that complied with New York law) or no policy at all.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com3tag:blogger.com,1999:blog-23809606.post-74817730684014536722009-02-05T16:58:00.002-05:002009-02-05T17:04:14.444-05:00VerificationThe Appellate Term's decision in <a href="http://nycourts.gov/reporter/3dseries/2008/2008_52651.htm"><u>A.B. Med. Servs., PLLC v. Country-Wide Ins. Co.</u>, 2008 NYSlipOp 52651(U) (App. Term, 2d Dep't, 2008)</a> was posted today.<br /><br />The decision is kind of messy, covering various issues briefly, but there's one interesting point. The Appellate Term found the following: "Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled."<br /><br />I'm not sure what this means, and I can't find this language in prior no-fault decisions. What level of specificity is now required in a claim rep's affidavit to establish that requested verification was not received? Is it not enough for the rep to simply state that the verification was never received?<br /><br />In any event, it appears that the Appellate Term has opened up a new avenue of attack on insurers' affidavits.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-74430569420491800922009-01-30T10:29:00.007-05:002009-01-30T10:47:28.921-05:00Excuses, ExcusesThis morning brings us the Appellate Division's decision in <a href="http://nycourts.gov/reporter/3dseries/2009/2009_00528.htm"><u>Westchester Med. Ctr. v. Hartford Cas. Ins. Co.</u>, 2009 NY Slip Op 00528 (App. Div., 2d Dep't, 2009)</a>.<br /><br />There is nothing groundbreaking here, although it does potentially add to the insurance carriers' roster of what counts as a "reasonable excuse" for the purposes of vacating a default. Here, Hartford's "employee reasonably believed that the action had been discontinued after she advised the plaintiff's counsel's office that no-fault benefits had been exhausted, thereby demonstrating a reasonable excuse for the short period of time in which they failed either to appear or to answer the complaint." <u>Id.</u><br /><br />I'm not exactly sure how one could reasonably believe an action was discontinued based upon merely communicating a defense to plaintiff's counsel, especially where there does not seem to have been a stipulation of discontinuance ever executed, or even an overt communication by plaintiff's counsel that one would be forthcoming. This seems to me to fall somewhere short of being "reasonable." In any event, the vacatur of the default might still be proper, given the apparent "short" delay and, perhaps more importantly, the issue of policy exhaustion.<br /><br />Footnote: after having vacated the default, the Supreme Court <a href="http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/MARTIN/2008AUG/003105-08.pdf">ordered that the matter be transferred to the District Court</a> ("325(d)-ing" the case, in the parlance), as the damages failed to meet the minimum required for Supreme Court jurisdiction.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com0tag:blogger.com,1999:blog-23809606.post-15929669604228911662009-01-29T16:05:00.003-05:002009-01-30T10:37:08.177-05:00Fraud in the ProcurementToday, we turn to a fundamental aspect of New York's insurance laws. The basic question is: can an insurance carrier cancel a New York automobile insurance policy retroactively? The basic answer is: no. As we'll see, the legal acrobatics involved in getting to that answer have an important impact on no-fault litigation.<br /><br />Vehicle and Traffic Law ("VTL") § 313(1)(a) provides that "[n]o contract of insurance…shall be terminated by cancellation by the insurer until at least twenty days after mailing to the named insured at the address shown on the policy a notice of termination..."<br /><br />Thus, "[i]t has long been recognized that this provision supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively." <u>Liberty Mut. Ins. Co. v. McClellan</u>, 127 A.D.2d 767, 769 (2d Dep’t, 1987). <i>See also</i> <a href="http://www.nycourts.gov/reporter/3dseries/2006/2006_26118.htm"><u>A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co.</u>, 12 Misc.3d 8 (App. Term, 2d Dep’t, 2006)</a>.<br /><br />Even where there is an allegation that fraud was committed in the procurement of the insurance policy, "Vehicle and Traffic Law § 313 places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence." <u>Insurance Co. of North America v. Kaplun</u>, 274 A.D.2d 293, 298 (2d Dep’t, 2000). Thus, where a carrier has failed to properly cancel an insurance policy in accordance with VTL § 313 prior to an accident, the carrier "is responsible to any innocent third parties injured in the accident, despite the proof adduced...that [the insured] obtained the policy by misrepresentations." <u>Id.</u><br /><br />Nevertheless, "[w]hen the insured brings an action to recover benefits under a policy, the insurance carrier may assert as an affirmative defense that the insured's misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured." <u>Id.</u> at 298-299.<br /><br />In no-fault matters, medical providers who treat patients through an assignment of benefits do not qualify as "innocent third parties" for this purpose. <i>See</i> <a href="http://www.nycourts.gov/reporter/3dseries/2006/2006_26118.htm"><u>A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co.</u>, <i>supra</i></a>.<br /><br />However, in order to assert such a defense in a no-fault matter, the carrier must present "evidence that plaintiffs' assignors participated in the fraudulent scheme." <a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_52304.htm"><u>D.A.V. Chiropractic, P.C. v. GEICO Indem. Co.</u>, 21 Misc.3d 138(A) (App. Term, 2d Dep’t, 2008)</a>. Where the carrier fails to demonstrate that the assignor was a party to the fraudulent procurement, the carrier fails to even create a triable issue of fact sufficient to defeat a provider’s motion for summary judgment, no less satisfy the burden for the carrier’s own motion for summary judgment. <u>Id.</u><br /><br />For the purposes of typical no-fault litigation, either on a motion or at trial, the core issue of this defense will be whether the carrier has submitted sufficient admissible evidence to demonstrate that the assignor was a party to a scheme to fraudulently procure an insurance policy. The procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-88745936211541933582008-12-23T19:09:00.003-05:002008-12-23T19:12:19.797-05:00Happy HolidaysThanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.<br /><br />Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com0tag:blogger.com,1999:blog-23809606.post-27974412160905631722008-12-19T15:11:00.002-05:002008-12-19T15:50:35.543-05:00Appealing, to Infinity and BeyondEarlier this week, the Appellate Division, 2d Department, <a href="http://www.nycourts.gov/reporter/motions/2008/2008_92186.htm">granted defendant's leave to appeal</a> from the decision of the Appellate Term in <a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_28271.htm">Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term, 2d Dep't, 2008)</a>.<br /><br />You'll recall that this decision involved, <i>inter alia</i>, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."<br /><br />Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning <u>New York & Presbyterian Hosp. v. American Transit Ins. Co.</u>, 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in <u>Infinity Health Prods.</u> found that the <u>Am. Transit</u> decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."<br /><br />Justice Golia, ever a contrarian, dissented in <u>Infinity Health Prods.</u> and opined that in <u>Am. Transit</u>, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.<br /><br />I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."<br /><br />The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have <i>ever</i>, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his <u>Infinity Health Prods.</u> dissent that the issue was never raised by the parties in <u>Am. Transit</u>. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue <i>sua sponte</i>, and so it is no surprise that they didn't.<br /><br />In short, the effect of early follow-up verification requests was <i>never litigated</i> in <u>New York & Presbyterian Hosp. v. American Transit Ins. Co.</u> The Appellate Term was thus not bound by this "precedent" in deciding <u>Infinity Health Prods.</u>, and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the <u>Am. Transit</u> is binding, but this is entirely illusory.<br /><br />There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.<br /><br />Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.<br /><br />--<br /><br />P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com2tag:blogger.com,1999:blog-23809606.post-6682773835753955092008-07-01T09:59:00.000-04:002008-07-01T10:04:15.651-04:00An Appeal of InterestThis morning, the Court of Appeals has <a href="http://www.nycourts.gov/reporter/motions/2008/2008_76424.htm">granted State Farm leave to appeal</a> the decision of the Appellate Division, Third Department in <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_10443.htm"><u>LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.</u>, 46 A.D.3d 1290 (3d Dep't, 2007)</a>.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-83231234233434122122007-11-20T12:00:00.000-05:002007-11-20T12:10:49.303-05:00The Highest CourtWhere 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 <a href="http://nycourts.gov/reporter/3dseries/2007/2007_09067.htm"><u>Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co.</u>, 2007 NY Slip Op 09067 (Ct. of App., 2007)</a>. While <a href="http://www.nycourts.gov/ctapps/efp.htm">The Hon. Eugene F. Pigott, Jr.</a> 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.<br /><br />This is, to be sure, a rather extreme result of the line of thinking originally set down by the Court of Appeals in <u>Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co.</u>, 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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com3tag:blogger.com,1999:blog-23809606.post-90549607293031589742007-11-16T15:14:00.000-05:002007-11-16T15:38:32.309-05:00D'oh-shiOn March 16, 2007, the Appellate Term, 2d Department issued its decision in <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_27193.htm"><u>Doshi Diagnostic Imaging Servs. v State Farm Ins. Co.</u>, 16 Misc.3d 42 (App. Term, 2d Dep't, 2007)</a>. 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.<br /><br />On August 21, 2007, the App. Term denied <a href="http://www.doshidiagnostic.com/">Doshi Diagnostic</a>'s application for leave to appeal to the Appellate Division. <i>See</i> <a href="http://www.nycourts.gov/reporter/motions/2007/2007_76290.htm"><u>Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co.</u>, 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007)</a>.<br /><br />Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. <i>See</i> <a href="http://www.nycourts.gov/reporter/motions/2007/2007_83478.htm"><u>Doshi Diagnostic Imaging Services v State Farm Insurance</u>, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007)</a>.<br /><br />D'oh!<br /><br />In other news, the App. Div., 2d Dep't also recently issued its decision in <a href="http://nycourts.gov/reporter/3dseries/2007/2007_09024.htm"><u>Westchester Med. Ctr. v Countrywide Ins. Co.</u>, 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007)</a>. 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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com0tag:blogger.com,1999:blog-23809606.post-79079032294371755282007-11-09T15:49:00.000-05:002007-11-09T16:07:18.799-05:00Edwards NofaulthandsNew York City Civil Court, Kings County Judge, the <a href="http://nycourts.gov/courts/nyc/civil/Judge/Profiles/gedwards.shtml">Honorable Genine D. Edwards</a>, has had two no-fault trial decisions from this week picked up for publication today by the <a href="http://nycourts.gov/reporter/">NYS Law Reporting Bureau</a>.<br /><br /><a href="http://nycourts.gov/reporter/3dseries/2007/2007_27458.htm"><u>All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co.</u>, 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007)</a>, 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.<br /><br /><a href="http://nycourts.gov/reporter/3dseries/2007/2007_52143.htm"><u>Delta Diagnostic Radiology, P.C. v MVAIC</u>, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007)</a>, 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.<br /><br />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:<br /><br />Law Offices of Damin J. Toell, P.C.<br />P.O. Box 245112<br />Brooklyn, New York 11224<br />516-204-4775 (phone)<br />516-394-0855 (fax)<br /><br />Business-related email should be directed to: djtoellpc @ gmail . com<br /><br />Have a good weekend, all.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-16354645069352628632007-09-25T13:25:00.000-04:002007-09-25T13:26:55.418-04:00Fraudulent FraudAt the suggestion (almost a threat, really) of <a href="http://nofaultparadise.blogspot.com/">David M. Gottleib, Esq.</a>, 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:<br /><br />The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.<br /><br />You won't find the word "fraud" anywhere in the majority or concurring opinions in <u>Central General Hosp. v. Chubb</u>, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in <u>Presbyterian Hosp. v. Maryland Cas. Co.</u>, 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."<br /><br />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.<br /><br />All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in <u>Fair Price</u>. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.<br />--<br />As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as <a href="http://www.nycourts.gov/reporter/3dseries/2005/2005_08114.htm"><u>Matter of Eagle Ins. Co. v. Davis</u>, 22 A.D.3d 846 (2d Dep't, 2005)</a>. 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." <u>Id.</u> (internal citations omitted).Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com9tag:blogger.com,1999:blog-23809606.post-11865901323435375262007-09-22T22:23:00.000-04:002007-09-22T22:35:08.873-04:00More and More AppealingIn 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 <a href="http://www.nycourts.gov/reporter/3dseries/2007/2007_05220.htm"><u>Fair Price Medical Supply Corp. v. Travelers Indem. Co.</u>, 42 A.D.3d 277 (2d Dep't, 2007)</a> to the Court of Appeals. The App. Div. <a href="http://www.nycourts.gov/reporter/motions/2007/2007_78445.htm">has posted the motion decision</a>.<br /><br />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 <u>Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co.</u>, 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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com6tag:blogger.com,1999:blog-23809606.post-56590371515692613442007-08-28T17:28:00.000-04:002007-08-29T13:35:25.418-04:00I Always Feel Like Somebody's Watching MeIn <a href="http://nycourts.gov/reporter/3dseries/2007/2007_27345.htm"><u>Delta Diagnostic Radiology, P.C. v Chubb Group of Ins</u>, 2007 NYSlipOp 27345 (App. Term, 2d Dep't, 2007)</a>, the Appellate Term has finally made explicit, <a href="http://nynofaultlaw.blogspot.com/2006/10/dissed-miss1.html">as I previously argued on this blog</a>, 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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1tag:blogger.com,1999:blog-23809606.post-33946878154581835972007-07-24T13:31:00.000-04:002007-07-24T13:51:26.215-04:00Shock the ConscienceIn a decision of likely interest to defense counsel, <a href="http://207.29.128.48/judge/JudgeDetail?judge_cars_id=7029810">Judge Howard S. Miller</a> 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. <u>See</u> <a href="http://nycourts.gov/reporter/3dseries/2007/2007_51405.htm"><u>Omega Diagnostic Imaging, P.C. v State Farm Mut. Ins. Co.</u>, 2007 NY Slip Op 51405(U) (Dist. Ct., Nass. Cty., 2007)</a>. 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.<br /><br />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 <u>ABCO Refrigeration Supply Corp. v Designs by Keiser Corp.</u>, 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.<br /><br />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 <a href="http://nylawblog.typepad.com/suigeneris/"><i>sui generis</i></a>. 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.<br /><br />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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com6tag:blogger.com,1999:blog-23809606.post-63630055950270949862007-07-18T14:12:00.000-04:002007-07-18T16:48:08.873-04:00Barnes & No-faultAccording to the sidebar on <a href="http://www.blogger.com/profile/16308244125420525964">David M. Gottlieb, Esq.</a>'s blog, <a href="http://nofaultparadise.blogspot.com/">No-Fault Paradise</a>, he's currently <u>re</u>-reading <a href="http://en.wikipedia.org/wiki/David_Foster_Wallace">David Foster Wallace</a>'s 1996 novel <a href="http://en.wikipedia.org/wiki/Infinite_Jest">'Infinite Jest'</a>. 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 <a href="http://en.wikipedia.org/wiki/The_Broom_of_the_System">'The Broom of the System,'</a> to be a bit more agreeable. I think I finished it, or at least came close.<br /><br />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 <a href="http://www.williamgaddis.org/jr/index.shtml">'J R'</a> and <a href="http://www.williamgaddis.org/frolic/index.shtml">'A Frolic of his Own'</a> by <a href="http://www.williamgaddis.org/index.shtml">William Gaddis</a> (I think I got through the first chapter or two of <a href="http://www.williamgaddis.org/recognitions/index.shtml">'The Recognitions'</a> at one point), most everything by <a href="http://perival.com/delillo/delillo.html">Don DeLillo</a>, <a href="http://en.wikipedia.org/wiki/Thomas_Pynchon">Thomas Pynchon</a>'s <a href="http://en.wikipedia.org/wiki/V.">'V.'</a>, most of the core works of <a href="http://www.thomasbernhard.org/">Thomas Bernhard</a> (which I guess don't quite qualify as 'big'), and even wannabe fare like <a href="http://en.wikipedia.org/wiki/Jonathan_Franzen">Jonathan Franzen</a>'s <a href="http://en.wikipedia.org/wiki/The_Corrections">'The Corrections.'</a> 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.Damin J. Toell, Esq.http://www.blogger.com/profile/09477061491768406236noreply@blogger.com1