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Putting the wrong floor is not fatal March 22, 2021

Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C., 2020 NY Slip Op 06474 (1st Dept. 2020)

Plaintiff insurer’s evidence, including affidavits attesting in detail to the regular business procedures and practices in the handling of its no-fault claims, including providing notice of scheduled IME exams to claimants, together with the mailing ledgers, which were signed and date-stamped by U.S. Postal Service employees, and listed therein IME notices received for mailing to the claimant here at his resident address, provided sufficient proof of proper mailing to support a presumption that the IME notices were received by the claimant (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [1st Dept 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]). Although the notices incorrectly added the designation “1st Floor” to the address, there is no dispute that the address was otherwise correct and that claimant resided at that building (see Cadle Co. v Tri-Angle Assoc., 18 AD3d 100 [1st Dept 2005]).

The burden on the motion having shifted, defendant failed to offer any evidence in opposition, such as an affidavit from the claimant disavowing receipt of the IME notices or even describing the building composition in a manner that would support an inference that the inclusion of a floor in the address would result in nonreceipt. Plaintiff thus established that the injured claimant failed to appear for three properly scheduled IMEs, constituting breach of a condition precedent to no-fault coverage, warranting the denial of defendant’s claims to no-fault benefits for its medical services rendered to the claimant (see 11 NYCRR 65-1.1; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011])

The converse is true – the failure to put the suite or floor number is proof of mailing. The one thing that is necessary is to have the purported recipient sign an affidavit of non receipt.

NF-3 is the operative document March 22, 2021

Unitrin Direct Ins. Co. v Beckles, 2020 NY Slip Op 06974 (1st Dept. 2020)

“Where, as here, the insurer submits evidence of a medical provider claim (NF-3), the timely request for an independent medical examination (IME) of the injured claimant within 15 days of the receipt of that claim, and the injured claimant is a no-show at two duly noticed IMEs, the basis for disclaimer of coverage is established, as a matter of law, and summary judgment is properly awarded to the insurer with respect to further coverage obligations and reimbursement of outstanding medical bills with respect to all treating providers (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). “

Independent contractor defense proven March 22, 2021

Lumbermens Mut. Cas. Co. v A B Med. Servs., PLLC, 2020 NY Slip Op 07280 (1st Dept. 2020)

“As an initial issue, 11 NYCRR 65-3.11 (a) limits no-fault medical billing to employees of the provider that submits claims for no-fault benefits. It is submitted that Supreme Court properly granted judgment in favor of plaintiffs, because the treating providers were independent contractors, as opposed to employees. The record supports a finding that the “degree of control exercised by the purported employer” (Bynog v Cipriani Group, 1 NY3d 193, 198 [2003]), “not only over the results produced but also over the means used to produce the results” (Matter of O’Brien v Spitzer, 7 NY3d 239, 242 [2006]), was insufficient to give rise to an employer-employee relationship.

“Factors relevant to assessing control include whether the worker (1) worked at his [or her] convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” (Bynog, 1 NY3d at 198). The factors that militate against defendant’s position that the treating providers were employees include the trial testimony that: defendant could not monitor the quality of the work billed because its principal was not qualified in these fields of medicine, defendant used staffing services to find professionals, defendant’s principal could not recall giving the professionals health insurance and required them to provide their own malpractice insurance, he could not recall providing the professionals with certain nerve conduction equipment, the professionals were all part-time and free to take on other jobs, and although the principal provided the professionals with W-2 forms, he did so only because he thought he was required to do so by insurers

$5000 (Ins Law 5106[c]) cannot be manipulated March 22, 2021

American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC, 2021 NY Slip Op 01499 (1st Dept. 2021)

“Plaintiff is not entitled to de novo adjudication of the master arbitrator’s award in favor of defendant CitiMed Services, PA, because the award is less than $5,000 (Insurance Law § 5106[c]). The medical services provided to plaintiff’s insured were separate and distinct from each other, were billed separately and should not be combined to meet the $5,000 threshold for de novo review (Imperium Ins. Co. v Innovative Chiropractic Servs., P.C., 43 Misc 3d 137 [A], 2014 NY Slip Op 50697 [U] [App Term, 1st Dept 2014]).”

The biggest issue I have here is the citation to an Appellate Term case holding that Civil Court has jurisdiction over trial de novo-declaratory judgment actions. Under the current rules of the NY Court system, this is just wrong.

Perlbinder March 22, 2021

Perlbinder v Vigilant Ins. Co., 2021 NY Slip Op 00439 (2d Dept. 2021)

I think this is perhaps the most consequential bad faith 349 case I have seen in years. It won’t move the needle on Assigned first party NF cases, but can cause heartache to carriers in wage loss first-party cases. I would venture a guess that this is the precursor of a bad faith statute that will eventually be enacted sometime in the next 0-3 years.

(1) “We agree with the Supreme Court’s determination to deny that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging violation of General Business Law § 349. Contrary to the defendants’ contention, the plaintiff sufficiently alleged deceptive conduct on their part that was “consumer-oriented,” that is, conduct that might “potentially affect similarly situated consumers” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25, 27 [1995]; see Brown v Government Empls. Ins. Co., 156 AD3d 1087, 1088-1089 [2017]; Wilner v Allstate Ins. Co., 71 AD3d 155, 164-165 [2010]; Acquista v New York Life Ins. Co., 285 AD2d 73, 82 [2001]; cf. Tiffany Tower Condominium, LLC v Insurance Co. of the Greater N.Y., 164 AD3d 860, 863 [2018]; Genesco Entertainment, a Div. of Lymutt Indus., Inc. v Koch, 593 F Supp 743, 752 [SD NY 1984]).”

(2) “We agree with the Supreme Court’s determination to deny that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) to dismiss the plaintiff’s demand for punitive damages. An alleged breach of the implied covenant of good faith and fair dealing may support an award of punitive damages (see 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 144 AD3d 665 [2016]). Likewise, a claim for punitive damages may be asserted in the context of a cause of action predicated upon an alleged violation of General Business Law § 349 (see Karlin v IVF Am., 93 NY2d 282, 291 [1999]; Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 565 [2012]; Wilner v Allstate Ins. Co., 71 AD3d at 167). Here, accepting his allegations as true and giving him the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the plaintiff’s allegations were sufficient to state a claim for punitive damages based on the duty of good faith and fair dealing (see 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 144 AD3d at 667-668) and based on the defendants’ alleged violation of General Business Law § 349 (see Ural v Encompass Ins. Co. of Am., 97 AD3d at 565; Wilner v Allstate Ins. Co., 71 AD3d at 167).”