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...
Friday, April 27, 2007
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.
--
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.
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.
Wednesday, December 27, 2006
2007: What the *%$! is Going On?
The reader is directed to No-Fault Paradise, a new entry in the highly-specific genre of New York no-fault automobile insurance law blogs from David M. Gottlieb, Esq., an attorney at Edward Shapiro, P.C., a prolific no-fault plaintiff's firm. Mr. Gottlieb's Civil Court, Queens County, Room 101 Seating Chart is both completely accurate and incredibly funny.
Thanks much also to a recent anonymous poster for some lively debate on the recent Appellate Division, 2d Dep't decision in Fogel v. Progressive.
In a bit of housekeeping news, please note that Erik B. Lutwin, Esq. has moved on in his professional career. Your humble blawger wishes Mr. Lutwin well. For the time being, I am the sole contributor to this blawg, but Mr. Lutwin was the one who got the ball rolling here, and he also devised the catchy title. Not having a fellow contributor makes the device of using the royal "we" that much more of a contrivance, so you'll forgive me if I continue to do so now and again.
Happy various holidays to all, and a Happy New Year, as well. Thanks especially to the two biggest long-running supporters of my site, Matthew S. Lerner, Esq. of New York Civil Law and Nicole L. Black, Esq. of Sui Generis. They provide much more traffic my way than the other way around, I'm sure, and I'm grateful for how often they feature my posts.
--
It's that time again, right
Kick out the old, welcome the new
Make your New Year's resolutions now!
...Go!
(And a very Happy New Year from BBC1)
Thanks much also to a recent anonymous poster for some lively debate on the recent Appellate Division, 2d Dep't decision in Fogel v. Progressive.
In a bit of housekeeping news, please note that Erik B. Lutwin, Esq. has moved on in his professional career. Your humble blawger wishes Mr. Lutwin well. For the time being, I am the sole contributor to this blawg, but Mr. Lutwin was the one who got the ball rolling here, and he also devised the catchy title. Not having a fellow contributor makes the device of using the royal "we" that much more of a contrivance, so you'll forgive me if I continue to do so now and again.
Happy various holidays to all, and a Happy New Year, as well. Thanks especially to the two biggest long-running supporters of my site, Matthew S. Lerner, Esq. of New York Civil Law and Nicole L. Black, Esq. of Sui Generis. They provide much more traffic my way than the other way around, I'm sure, and I'm grateful for how often they feature my posts.
--
It's that time again, right
Kick out the old, welcome the new
Make your New Year's resolutions now!
...Go!
(And a very Happy New Year from BBC1)
Wednesday, December 20, 2006
Fogel: Out
As 2006 draws to a close, the Appellate Dvision, 2d Department has given us one of the most important no-fault decisions of the year. In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 2006 NY Slip Op 09604 (App. Div, 2d Dep't, 2006), a unanimous Court overturned that portion of the prior Appellate Term, 2d Dep't decision that held that an assignor's failure to appear for an independent medical examination ("IME") prior to the subject services having been rendered results only in a rebuttal of the presumption of medical necessity in the favor of the plaintiff provider. Instead, although agreeing with the concurrence/dissent of Golia, J. in the App. Term Fogel case and the Appellate Term, 1st Department decision in Inwood Hill Med., P.C. v General Assur. Co., 2005 NYSlipOp 25437 (App. Term, 1st Dep't, 2005), the App. Div. has gone even further. They now hold that failure to appear at an IME is a violation of a condition precedent to no-fault coverage, regardless of when the no-show occurred as compared with the date(s) of service of a given claim. Indeed, the App. Div. now holds that a carrier may deny claims "retroactively to the date of loss" when a no-show occurs.
This has numerous potential implications. A denial of coverage retroactive to the date of the loss should render the defense one that survives preclusion regardless of whether it is preserved in a timely denial of claim form. See generally, Central General v. Chubb, 90 N.Y.2d 195 (1997). Other explicit conditions precedent to coverage listed in the PIP Endorsement (11 NYCRR § 65-1.1) should also be subject to the same rule.
This has numerous potential implications. A denial of coverage retroactive to the date of the loss should render the defense one that survives preclusion regardless of whether it is preserved in a timely denial of claim form. See generally, Central General v. Chubb, 90 N.Y.2d 195 (1997). Other explicit conditions precedent to coverage listed in the PIP Endorsement (11 NYCRR § 65-1.1) should also be subject to the same rule.
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