A very impressive win.May 31, 2011
NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (2d Dept. 2011)
“Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.
The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.
“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).
Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim….
In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity
Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103[b]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).”
Very good work on the part of defense counsel. Defense counsel tore apart the ridiculous “how was I supposed to know what was denied, I only spend my life doing medical collections work.” He also tore apart “the police report was uncertified” even though the whole world knows it says what it says. Lastly, defense counsel beat back the untimely denial argument, but I am not sure how or what the facts were regarding this argument. I have an email into defense counsel to find out what actually happened.