App Term EUO cases (ad nauseam) May 12, 2019

LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co., 2019 NY Slip Op 50696(U)(App. Term 2d Dept. 2019)

” Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment….”

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50700(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment”

K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 2019 NY Slip Op 50687(U)(App. Term 2d Dept. 2019)

“Plaintiff correctly argues that the initial EUO scheduling letter sent to plaintiff had been sent more than 30 days after defendant had received the claims seeking $348.80, $204.41, $148.69, and $91.42. As a result, the request was a nullity as to those claims”

BC Chiropractic, P.C. v Farmers New Century Ins. Co.,2019 NY Slip Op 50680(U)(App. Term 2d Dept. 2019)

” While the Civil Court correctly noted that defendant’s January 13, 2012 letter was a delay letter, which did not toll defendant’s time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground”

The common refrain here is that the objective basis for the EUO is not part of the an insurance carrier’s prima facie case.

Application of North Carolina does not bode well May 12, 2019

Matter of Metropolitan Prop. & Cas. Ins. Co. v Anthony, 2019 NY Slip Op 03662 (1st Dept. 2019)

“Contrary to petitioner’s contention, it was not permitted under North Carolina law to rescind the insurance policy ab initio after the accident involving an uninsured motorist had occurred. North Carolina insurance law prohibits rescission after an accident of any insurance “required” to be offered (see NC Gen Stat § 20-279.21[f][1]). This provision applies to prohibit rescission based on fraud in the application for insurance (see Odum v Nationwide Mut. Ins. Co., 101 NC App 627 [1991], review denied 329 NC 499 [1991]). Uninsured motorist coverage, which is required by statute to be included in all automobile insurance policies, is a “required” type of coverage (see Bray v North Carolina Farm Bur. Mut. Ins. Co., 341 NC 678 [1995]). “

I did the research on this a few years ago and this has been the law forever in North Carolina. Why under a choice of law anyone would think differently beats me? Not a wise appeal.

But I mention this because even though North Carolina is a med-pay state, assume this hypothetical. North Carolina policy and New York accident. Choice of law means NC law applies. Most insurance policies have a contractual deemer clause in them. Alternatively, Ins Law 5107 is the statutory deemer provision. Injured person is guilty of material misrepresentation, but seeks PIP benefits.

Since NY PIP benefits would be “required”, it would seem to follow that under NC law, the carrier would have to provide the benefits. Met Life would have been better off honoring the claim here and perhaps arguing that arbitration is not permitted under the policy. While the First Department would not accept this argument, the Second Department would.

Watch out for text degradation May 12, 2019

Global Liberty Ins. Co. v Tyrell, 2019 NY Slip Op 03691 (1st Dept. 2019)

This case was the result of the system crunching large pdf’s into smaller files to free up more space on my hard drive. I am not even kidding. We were not even aware of the text degradation until it was raised in opposition. The natural reaction is to put in better copies; but apparently, you need an affidavit explaining that the better copies were the ones sent to the Defendant. New rule here and I will remember. Not even sure that specific argument was raised but practice tip out there – if you wish to clarify you submission in Reply, get an affidavit briefly explaining what happened. Perhaps shame on me here.

Supreme Court accepted the clear letters in reply but found a mailing issue. It is a fair guess that the Appellate Division accepted the mailing and non-appearance issue, but relied on a hyper-technical issue to affirm the lower court’s order. I can live with this.

What was really good though (and I am quite thankful) is the Court found the wrong caption/ no caption argument to lack merit. This argument has picked up steam in Civil Kings, and it is nice to see it has finally died. Well it will not die but it has been judicially found to lack merit. Thus, the App Term and Article 75 courts will likely not find merit in this argument.

The CPT code book and CPT Assistant are admissible as a matter of course May 12, 2019

Matter of Global Liberty Ins. Co. v McMahon, 2019 NY Slip Op 03692 (1st Dept. 2019)

This appears to be a very large issue in modern NY no-fault jurisprudence, as the coding of billings becomes the main issue in many arbitration. I was only zapped by this issue once, but once is enough. Despite the clear wording of the regulation and the Fee Schedule, I knew I was going to be at the First Department on this case.

Here is the substance of the case:

“The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.

The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1[a][1]; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 [2d Dept 2015], affd 27 NY3d 22 [2016]). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant [*2]is incorrect as a matter of law (see 11 NYCRR 65-4.10[a][4]) “

To me, the rule that I cannot reference the CPT Code book or the CPT Assistant was meritless. Apparently, this was another “Maslow rule” that a sizable minority of arbitrators held as gospel. You could find out who the arbitrator and master arbitrator was in this case as it is e-filed.

My angst here is not so much with the lower arbitrator as (s)he had a body of “law” to rely upon in coming to his/her decision. Why the arbitrators are so moved by Maslow rules of regulatory interpretation is a question I may never get an answer to (this is the second Maslow rule the Appellate Division reverse d- no easy feat), but I can live with the underlying lower arbitrator’s decision.

My problem here is with the master arbitration program. For starters, if you move from New York, you should not be a master arbitrator. Aren’t there plenty of New York attorneys with coverage backgrounds who can review arbitrator decisions? Second, if you find that Petrofsky blocks you from making legal determinations (or disguising factual issues and legal issues), then you should be appearing on traffic tickets and not as a master arbitrator. Third, if you require me to prove the merits of my case by clear and convincing evidence (I will not call out this master arbitrator) because you have not followed the recent Article 75 cases in the First and Second Department, you also should not be a master arbitrator. I master a lot of cases and the awards I read are absolutely horrible. Honestly, they should allow us to go directly to Court as we do on UM cases. Having to write a $325 check is the expression of putting good money after bad money.

Happy Mother’s Day May 12, 2019

I am beginning to publish some articles here today, but I wanted to take a moment to wish all of the mothers out there a happy Mothers Day. Without the support and love of our mothers, much of the good that we see in society would not exist. Many moms have made sacrifices for their children and this blogger – who avoids issues outside the law- is not blind to that fact. A simple reminder on here is in order.