StandingMay 9, 2020

Allstate Ins. Co. v Kapeleris, 2020 NY Slip Op 02645 (2d Dept. 2020)

The Defendant, Stacey Kapeleris is one of the nicest people you could meet. The first time she met me, she told me I was not what she thought I would be. I guess I did not wear a tie that day and probably was not dressed like a typical lawyer. This is perhaps why I had trouble working in various law firms. I digressed.

But to the point, Stacey was legitimately injured in a serious car accident. For the last four years, I have had the hardest time fathoming why the Plaintiff has taken a scorch the earth approach to her. It is one thing when the adverse party is an MUA provider, a back brace peddler, a useless compound cream distributor (Voltaron gel works just as well) or a surgeon who is operating for the sake of operating. I have no sympathy to these providers and have gone the distance many times with those providers with mixed results. But, I was justified in what I did.

But this is a real life case, and to tell you I am beyond disgusted would be an understatement. Just look at the docket if you want any further insight. While this will be a non-jury trial and I would not inflame any potential jurors by commenting further, my 17 years of practice compels me to say nothing more as I am very sure this will make one more trip to Brooklyn.

The holding from this case is extremely significant as it questions what I have always understood as standing by estoppel. It also tells an injured person how to retake possession of a bill when the provider does not cooperate.

Now did I want to be the one that made this law? Nope. But as an advocate, I end up taking positions I would normally never think I would take.

Also didn’t someone once say bad facts make bad law? Here are snippets from the case.

(1) “An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 764-765). The no-fault regulations provide that assignments must be made on the prescribed statutory forms (see 11 NYCRR 65-3.11[b][2]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59, 61 [App Term, 2d Dept]). The prescribed language requires the assignee (treatment provider) to certify that “[t]hey have not received any payment from or on behalf of the assignor [patient] and shall not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident” (11 NYCRR R Appendix 13 [NYS Forms NF-3, NF-4, NF-5, NF-AOB]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60). In this regard, as set forth in an informal opinion issued by the Office of the General Counsel of the New York State Insurance Department, “a health care provider who has accepted a no-fault assignment of benefits from a no-fault claimant may not pursue the patient directly for health services rendered that have been denied as medically unnecessary, notwithstanding the language of the assignment, which states in the event that the no-fault carrier fails or refuses to pay for the services provided then I, the patient, agree that I will be responsible for the value of services rendered by said Doctor,'”as “[t]he use of such language is prohibited under N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(2) (2005) (Regulation 68-C)” (Ops Gen Counsel NY Ins Dept No. 06-05-07 [May 2006]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60; see also A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [“informal opinion of the General Counsel, while not binding on the courts, is entitled to deference unless irrational or unreasonable” (citation omitted)]).”

“Here, in support of her cross motion, Kapeleris submitted evidence establishing that although she had assigned her right to no-fault benefits to two medical providers, Winthrop and Nancy E. Epstein, she was billed directly by Winthrop and LI Neurosurgical for their services after the claims of those providers were denied by Allstate for lack of medical necessity (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209, 1211). Further, Kapeleris’s evidentiary submissions showed that she remitted payment to those providers for their services in connection with the subject accident. Thus, Kapeleris’s evidentiary submissions showed that neither Winthrop nor LI Neurosurgical could certify that “[t]hey have not received any payment from or on behalf of the assignor [Kapeleris],” and that they would “not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident.” This evidence was sufficient to demonstrate, prima facie, that the assignment to Winthrop and LI Neurosurgical, though valid when made, had been rendered ineffectual, and therefore, Kapeleris had standing to pursue her claims for no-fault benefits against Allstate for services rendered by Winthrop and LI Neurosurgical.”

“Furthermore, Kapeleris demonstrated that she did not execute an assignment of her rights to collect no-fault benefits to Nassau Anesthesia (see 11 NYCRR 65-3.11[b][1], [2]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App. Term, 2d Dept]). Thus, Kapeleris also demonstrated, prima facie, that she had standing to pursue her claim for no-fault benefits against Allstate for the payment she made to Nassau Anesthesia.”

The issue was whether a written revocation of assignment of benefits is necessary when an injured person pays assigned non-coverage denied billings. The answer is not found in the regulations but is a function of common law and common sense.

And the developed case law led to the conclusion found in the Respondent’s brief and within the Court’s holding: the assignment was revoked through conduct.

Affirmed with costs.

2 Responses

  1. NO says:

    It sounds like Plaintiff’s counsel, thinking itself smarter than it is, made promises to Allstate and recommended the Scorched earth tactic.

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