Reasonable excuse/ default August 21, 2021

Cautious Care Med., P.C. v 21st Century Ins. Co., 2021 NY Slip Op 50785(U)(App. Term 2d Dept. 2021)

“In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.”

Interesting discussion on CPLR 301 August 16, 2021

Velasqeuz v. Hernandez, Index #: 31482/2019E (Sup. Bx. Co. 2001)

My case. CPLR 301 – hahahahhahahah. Gotcha.

Bronx jury or Connecticut jury?

Intercompany arbitration is inappropriate in New Jersey between a PIP carrier and a major medical insurance carrier August 9, 2021


One of the interesting aspects or evolution of New Jersey PIP law is that is has devolved from a comprehensive all encompassing benefit to one that is either limited or non-existent. The historians will remember that until the 1990 Fair Automobile Insurance Reform Act, there was not coverage limit. That changed to $250,000 in 1990 along with the ability to have major medical be deemed primary.. In 1998, AICRA brought the common $15,000 PIP policies and mandated arbitration.

The question that lurked is what happened when major medical said go to PIP, PIP as secondary pays and then seeks to subrogate against the major medical carrier.

The Appellate Division said you’re out of luck.

(1) “When a PIP-as-secondary insurer receives a claim eligible for primary coverage, it must deny coverage and send the insured a notice advising them to submit the claim to their health insurer”

(2) ” Health insurers are also required to make prompt payment of claims, but are governed by N.J.A.C. 11:22-1.1 to -1.16″

(3) “Reimbursements of payments incorrectly made by auto carriers are permitted by inter-company agreement or arbitration amongst PIP insurers, N.J.S.A. 39:6A-11, but this court has determined that health insurers are not subject to PIP arbitration”

(4) “A health insurer’s duty to process a claim, however, does not arise until it has received a request for payment directly from the insured or a healthcare provider. N.J.A.C. 11:22-1.5(a); Bull. No. 05-25. If, after proper submission, a health insurer disputes coverage of a requested medical expense, the insured must pursue the internal appeals
process under the plan.”

(5) “Where both the PIP and health insurer dispute coverage, the health insurer becomes obligated to act as the
primary. N.J.A.C. 11:3-37.11(a)”

(6) This is the most important part of the opinion ” If plaintiff believed that defendant unreasonably denied coverage, it could have requested that P.M. pursue defendant’s internal appeals process, or obtained an assignment of rights from the insured and pursued the appeal itself. Instead, it simply paid the claim. Consequently, plaintiff has failed to establish any right of subrogation

(7) When PIP pays, they forfeit their recovery right.

This is interesting, right?

Is a PIP IME hearsay? August 6, 2021

I specifically remember that Mr. Barhshay and myself battled this issue in a different time in all of our lives. Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc. 3d 1111(A)(Civ. Ct. Kings Co. 2007). In Primary, the carrier conducted IMES wherein the experts found that the injuries were not related to the accidents. The Court found that the records and the interviews were not “hearsay”, and relied upon then Appellate Term, First Department precedent that held the provider cannot challenge the medical records that reference the Assgignors’ condition.

We would later learn from the Appellate Term, Second Department, the the medical records and the IME iterview are admissible, not for the truth of the matter asserted, but under the assumption that the exist and the opinion based upon these records is whatever it is.

As I have discussed before, Florida abolished for all practical purposes their Appellate Divisions (their versions of our Appellate Term). Florida’s Appellate Divisions wrote opinions similar to pre 2003 NY App Term deicsions – found in the Florida Law Weekly when they were located. The net result is that Fla has been the wild west of No-fault since the early 2000s when their NF revolution began, similar to New York’s.

As of thus year, all cases go the DCA, which for better or worse, means the law is being settled very quickly. And similar to post 2013 NY, the law has been decidedly more pro-insurance carrier.

This is one from Miami-Dade on IME hearsay.

United Automobile Insurance Company NB Sports Massage and Rehab Corp., a/a/o Daisy DePaula, No. 3D21-0107 (Fla 3d DCA 2021)

(1) ” NB Sports initially objected to the introduction of Dr. Weinreb’s deposition testimony because his recollection was not refreshed after seeing the IME report. See Ehrhardt, supra, at § 613.1 (“[I]f the witness does not have a present memory of the fact after seeing the document, the witness may not testify to the fact.”). It is undisputed that Dr. Weinreb’s memory was not refreshed. However, testimony regarding the IME report may be admissible on another independent ground, specifically, the past recollection recorded hearsay exception. See Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566, 569 (Fla. 1976) (“A writing may serve to jog a witness’ memory and also be admissible on some independent ground.”).

(2) “Section 90.803(5) sets forth the requirements for the past recollection recorded hearsay exception:…”

(3) “These requirements are usually established through the testimony of the witness who made the prior record. See Polite v. State, 116 So. 3d 270, 275 (Fla. 2013); see also Ehrhardt, supra, at § 803.5. Here, however, the lower court never permitted Dr. Weinreb to testify. We hold that this was error. United should have been allowed to lay a proper foundation pursuant to section 90.803(5).5 As such, we reverse and remand for further proceedings.”

(4) ” To the extent the IME report contains double hearsay, United should have been allowed to lay a proper foundation under other exceptions to the hearsay rule”

The issue here was that the County Court did not want to allow the IME doctor to testify off a document that did not refresh his recollection. That leaves us with past recollection recorded. Florida tends to follow the federal rules on professional reliability, whereas NY follows Hambsch and Wagman. Thus, the hearsay objection will be overruled.

Appellate Term fiction July 31, 2021

Colin Clarke, M.D., P.C. v MVAIC, 2021 NY Slip Op 50729(U)(App. Term 2d Dept 2021)

(1) “The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates.”

(2) “A review of the denial of claim forms, explanations of review and correspondence pertaining to the claims at issue reflects that the facts relating to each claim are likely to raise few, if any, common issues of fact”

(see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). Indeed, under the facts of this case, an extraordinary number of defense witnesses would be required at a single trial of all six claims. As a result, defendant’s motion to sever the causes of action should have been granted (see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536; Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Sentence number one comes from Mount Sinai and ends the inquiry. Sentence number two is a make believe addition that the new law clerks at the Appellate Term added to the severance inquiry. The reality is who wants to take up to the App. Div whether sentence (2) is a correct statement of law?

I for one do not think the App. Div. will grant leave to answer that esoteric question. But they really should because the no-fault rule, outside the third department, is no multi-suits unless it is the same accident or plaintiff pleads or can show common elements, i.e, same FS reduction, same coverage defense (probably provider based).

I just think the Court is wrong in their thinking on this issue.