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Lack of causation August 10, 2019

Parisien v Allstate Ins. Co., 2019 NY Slip Op 51249(U)(App. Term 2d Dept. 2019)

” In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured, in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” “

For starters, this is collateral estoppel as to the Assignor (See Lobel v Allstate Ins. Co., 269 ..2d 502 [2000]). While the defendant in the BI case may never catch wind of this decision (and others like it), this could be deadly to the BI matter.

For the legal malpractice attorneys out there, does this constitute legal malpractice? Is there a duty from counsel to the medical provider to the EIP when this type of action is arbitrated or litigated? My own feeling is that that the Assignor probably had a competing rendition of events that was either recorded at an EUO, possibly given at an EBT or could have been obtained via affidavit.

Any thoughts.

The By-Report August 10, 2019

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 2019 NY Slip Op 06059 (2d Dept. 2019)

The oral argument and facts of this case were uninspiring. The legal issue was well settled. When a service is “BR”, does a prima facie case involving proving compliance with the “BR” as a condition precedent to bringing the law suit? This is how i would have argued the appeal for Hereford; that said, the argument is just not meritorious no matter how you spin it.

The best analogy involves (for the old timers here) when the Appellate Term once upon a time required a DME provider to prove that the bills were 150% of wholesale cost as part of a prima face case. The failure to offer this evidence required denial of the motion for summary judgment or dismissal of the case at trial. This line of cases was overruled about 13 years ago I think and the Court held that the DME bill was itself prima facie proof of the cost.

The same framework would probably apply here. The bill itself is prima facie proof of the cost. Whether or not the cost is in compliance with the fee schedule requires submission of a verification if the information is insufficient. The alternative would be to review the bill and to code it based upon the information provided, assuming the information in the possession of the insurance carrier is sufficient to make this determination.

“We agree with the Appellate Term’s determination that the denial of the plaintiff’s claim for services billed under CPT code 97039 was without merit as a matter of law. Although an unlisted modality must be justified by report, this requirement has no bearing on the insurer’s burden of requesting additional verification in the first instance (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319), which the defendant insurer did not do. ”

And that is all she wrote on this issue.

Default not vacated: competent evidence not presented August 4, 2019

Shy v Shavin Corp., 2019 NY Slip Op 06011 (2d Dept. 2019)

” Here, the Supreme Court determined that the defendant established a reasonable excuse for its default based upon its insurance carrier’s delay before defending the action. However, in support of its motion, the defendant failed to submit admissible evidence to demonstrate that it notified its insurance carrier of the existence of this action prior to its default. In support of its motion, the defendant submitted an affidavit from a litigation consultant employed by the insurance carrier. The litigation consultant’s assertion that the insurance agent/broker for the defendant attempted to forward a copy of the summons and complaint to the insurance carrier in October 2017 was based upon inadmissible hearsay (see Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738, 739). Thus, the defendant failed to demonstrate that its default was attributable to insurance carrier delay (see generally Gershman v Ahmad, 131 AD3d 1104, 1106). In addition, the evidence demonstrating that, following the order granting the plaintiff’s motion for leave to enter a default judgment, the insurance carrier delayed in assigning counsel to move on the defendant’s behalf to vacate the default, does not establish a reasonable excuse for the default.”

Medical necessity trial gown awry August 4, 2019

Parkway Hosp., Inc. v Integon Natl. Ins. Co., 2019 NY Slip Op 51187(U)(App. Term 2d Dept. 2019)

(1) ”  the Civil Court found that defendant’s witness was not credible and awarded judgment to plaintiff in the principal sum of $17,388.68.”

(2) ” At a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s expert witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary”

I would like to see the transcript on this case.

Verification receipt August 4, 2019

Right Aid Med. Supply Corp. v Travelers Ins. Co.. 2019 NY Slip Op 51184(U)(App. Term 2d Dept. 2019)


“The witness, a 27-year employee of defendant, testified regarding defendant’s policies and procedures for the receipt of mail, both at the Buffalo office, where certain items were sent, and the Melville office, where the claims at issue were processed.”

Implicit here, similar to the recent State Farm cases, is the ability of a claims representative, through resort to the computer system, to testify regarding the intake and mailing from any office to prove the defense.