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What is a prima facie case? I still do not have an answerJune 11, 2015

Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 (2015)

We are one step closer to day to finally answering this question, and similarly one more step backward.  The Court of Appeals held right at the outset:

The Holding

(1) “We hold that a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. Proof evincing the mailing must be presented in admissible form, including where it is applicable, meeting the business records exception to the hearsay rule.”

(2) “Prior to Art of Healing and following its abandonment, the Second Department has held that “[i]n an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurer, and that payment of no-fault benefits was overdue”

(3) We agree with the Appellate Division Departments that a summary judgment motion in a no-fault insurance case where the benefits are overdue, requires proof that the statutory claim forms were mailed to and received by the insurer.

Yet

(1) “Applying these principles to the instant facts, the Appellate Division properly determined that plaintiff met its prima facie summary judgment burden.  As relevant here, to support its motion, plaintiff submitted the eight verification of treatment forms and Matatov’s affidavit. The documents submitted by plaintiff meet the business records exception to the hearsay rule.”

(2) “Matatov’s affidavit states that based on his business agreement with plaintiff, SUM Billing created the verification of treatment forms in the regular course of its business and that the forms were created soon after the services were provided by plaintiff to Cardenas. Indeed, the tight timetable of the no-fault scheme requires prompt submission of proof of claim in order to receive reimbursement. Matatov’s affidavit outlines the office practices and procedures used by SUM Billing to mail claim forms to insurers and demonstrates that Matatov himself mails the forms. Matatov explained that SUM Billing relies on these forms in the performance of its business. Further, the affidavit states how and when the forms at issue here were created and that they were mailed to defendant within the statutory time frame.”

And also

FN 3: “All of the courts below denied plaintiff’s motion for summary judgment on one of its claims dated November 17, 2004, in the amount of $139, as it was timely denied by the insurer. That propriety of that determination is not before this Court as plaintiff did not cross-appeal its denial.”

So now what?

I just do not get it.  At first, I thought that this case kept the status quo ante alive.  In the First Department, summary judgment is established through mailing of the bill and 30-days elapsing.  See Tutto Anesthesia v American Country Ins. Co., 47 Misc 3d 147(A)(App. Term 1st Dept. 2015)

In the Second Department, a showing has to be made in addition to the above that a denial was untimely, defective or never issued.  See e.g. Gutierrez v Allstate Ins. Co., 2015 NY Slip Op 50799(U)(App. Term 2d Dept. 2015)

The business record foundation, albeit through a third-party, has now been resurrected.

Also, whats up with footnote 3.  If Plaintiff cross-appealed would the court have reached the issue as to whether submission of a bill is enough as opposed to disproving the merits of the disclaimer as part of a prima facie case?

There is no resolution here.

Business records

Another thought on the reintroduction of this rule.  The Court reached this issue because the summary disposition n statute requires affidavits and sworn testimony to prevail on motion.  The same considerations do not apply at a trial where 3212’s proscriptions apply.

Amicus Curae

Lastly, i sense many insurance carriers were charged many dollars for Amicus that was not even mentioned.  I suspect the usual arguments that plaintiff medical providers should have to prove medical necessity and casual relationship were stated.  That argument always finds its way into amicus when you read it.  But did anyone inform the Court that we are the only no-fault state that relieves a Claimant of bearing any substantive burden?   And to say that such an argument would have fallen on deaf ears is not necessarily true.  The day before, the Court in a 4-3 affirmed the dismissal of a dog-bite case based upon stare decisis.  But how about the the three dissenters?  They would have followed the majority approach and abandoned strict liability in light of the restatement’s view that a negligence standard is appropriate.

It is the lack of creativity and out of the box thinking that I am afraid at times dooms this industry (at times).  This was the chance and I am afraid the carriers might have missed it.

2 Responses

  1. STEFAN BELINFANTI says:

    PRETTY STRAIGHT FORWARD (HOW DO I TAKE CAPS OFF?). 1) THE BUSINESS RECORDS RULE WAS NOT RESURRECTED, OR CHANGED IN ANY WAY. PRIMA FACIE = PROOF OF MAILING in admissible form OF THE BILLS IN dispute and the bills being overdue. ONE WAY TO DO THAT – but not the only way – IS THROUGH 4518. AS FAR AS THE PARTICULARS OF THIS CASE ARE CONCERNED, the court ruled that the plaintiff did so through 4518 (proof of mailing forms were attached). so as far as “mailing” is concerned, you have to have admissible evidence, and one such way is through 4518. but as far as the bill forms themselves, they are not hearsay, so you don’t have to use any exception to get them in, 4518 or otherwise. in fact if you read the decision closely, you will see that you don’t have to get them in at all, 2) regarding bills that are timely denied, the court did not decide what a prima facie case entails. i don’t think anything will change as to this burden in either department.

  2. kurt lundgren says:

    yES, HOW DO YOU TURN THE CAPS OFF?

    STEFAN IS 100% CORRECT – THE DECISION IS STRAIGHTFORWARD.

    yOUR READING WAY TOO MUCH INTO THIS JASON,

    GOOD DECISION, WELL DONE STEFAN AND DAVE.

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