A 30-day notice case that went to trialJanuary 6, 2014
Medical Select, P.C. v Allstate Ins. Co., 2013 NY Slip Op 23446 (District Ct. Nassau Co. 2013)
“According to the proof adduced at trial, Allstate initially received notice of the accident from its insured within one week of the accident date. It was apparently advised, at that time, that three other individuals (plaintiff’s assignors) had been injured in the accident.”
“Following receipt of the signed NF-2’s, Allstate took no immediate steps to advise plaintiff’s assignors that their NF-2’s had been submitted too late, nor did it advise them that a late submission could be excused. Instead, it was not until Allstate began receiving assigned claims from the plaintiff provider that it first asserted, in its timely denials of the provider’s claims, that it was refusing to pay for necessary treatments due to the assignors’ failure to give written notice to defendant within 30 days of the accident.”
“Each of the denials includes the following explanation: “Claim denied for failure to comply with written notice requirement. Notice must be given as soon as reasonably practicable, but in no event more than 30 days after the accident date, unless the eligible injured person submits written proof providing clear and reasonable justification for failure to comply with such time limitation…” Using almost identical language, the denials added: “reasonable justification not proven, for proof of claim. [T]herefore claim is denied.”
“Unlike the circumstances presented in SZ Med. PC v County-Wide Ins. Co., the insurer’s denials include language which partially tracks the language of 11 NYCRR 65-3.3(e). However, on balance, the Court concludes that the language employed fails to substantially satisfy the requirements of this section. At the very least, a valid denial must include some language indicating that the claimant “may submit additional information (such as justification for delay) and that reconsideration is possible.” Hempstead Pain & Med. Servs., PC v General Assur. Co., supra. The denials, here, fail to do so.”
“Instead of containing the required advisory, the denials simply present a fait accompli conclusion that “reasonable justification” was “not proven.” Although plaintiff’s assignors were copied on the denials, they were never specifically advised, in the denials or otherwise, that they could or should submit additional information explaining why the NF-2 forms were submitted more than 30 days after the accident.”
“In the case at bar, such “explicit notice” is lacking. Moreover, defendant’s trial proof did not demonstrate that it had established “standards for review” of late claims, or that it had established “procedures, based upon objective criteria, to ensure due consideration of denial of claims based upon late notice or late submission of proof of claim … (11 NYCRR 65-3.5[l]).”
This case absolutely begs the question: why didn’t Allstate move for summary judgment? First, the “prefatory language” part of the opinion would have been controlled in a pro-forma affidavit that on balance would have made a better record on appeal. And make no mistake, the failure of the Assignor or the medical provider to seek reconsideration pre-suit renders this opinion wrong on the law. The recent precedent suggests that to be the case, In addition, 65-3.5(l) does not form a basis for evaluating these types of case, in accordance with the most recent pronouncements on the 30-day rule.
But to appeal these cases in the trial postulate, where uncontrolled testimony or “trial stips” can muddy the record is a dangerous game to play.