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The appellate division grants summary judgment since the loss was not an insured event – UPDATED February 6, 2010

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (2d Dept. 2010)

“In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff’s assignor was injured was not an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d at 199).”

Since i wondered what this case was about, I copied the relevant portions of the motion papers from the clerk’s office.  Here is what I found out:

This case involves the “my car was not there” defense.  There were numerous EUO’s that were done in this case and, without going into detail, the substance of the proof was sufficient to grant defendant summary judgment.

As to the form of the papers, the defendant annexed uncertified EUO transcripts and documentation without a business record foundation or other type of foundation.  Plaintiff in his opposition papers objected to the form of Defendant’s evidentiary presentation.  While I was unable to read the appellate briefs, I would imagine that Plaintiff’s admissibility argument was also presented in its Respondent’s brief.  Thus, it seems interesting that Defendant was able to get this decision reversed.

I will upload the relevant portions of the motion papers once my scanner behaves itself. The relevant portions of the motion papers in St Vincent v. Allstate are uploaded for your review.  Click on the previous hyperlink.

A derivative of CPLR 3404 appears again in the Civil Court February 3, 2010

The Appellate  Division First Department has on numerous occasions has held that CPLR 3404 applies to Civil Court actions, while the Second Department has found that otherwise.  Compare, Kaufman v Bauer, 36 AD3d 841 (1st Dept. 2007), with Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 (2d Dept. 2007).

The matter of Fair Price Med. Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 50120(U)(App. Term 1st Dept. 2010), a First Department case, should not surprise anyone.  My only question is why didn’t Geico cross-move to have the case dismissed in accordance with CPLR 3404?

I must conclude this post with my observations, or thoughts.  It appears that the application of CPLR 3404 to the Civil Courts is about as haphazard as the application 0f 2309(c) and the proof necessary to vacate a default in accordance with 5015(a)(1).  The relief these statutes offers is really dependent on the judicial department in which the underlying case is pending.  This is very scary for a court system that calls itself “uniform”.

A civil court upholds Domotor, but applies it in a strange fashion February 2, 2010

Dugo v Allstate Ins. Co., 2010 NY Slip Op 50102(U)(Civ. Ct. Richmond Co. 2010)

Lately, various defense counsel have been challenging the precepts behind the Domotor case, which holds that a disclaimer of future benefits excuses compliance with all conditions precedent to coverage, including the timely submission of claims to the insurance carrier.  Since Domotor is an Appellate Division, Second Department opinion that has not been overturned, it would seem incongruous to believe that an insurance carrier can successfully rely on the 45-day non submission defense in this scenario.  Indeed, every published lower court case has found that a global denial excuses compliance with all conditions precedent to coverage including, among other things, the responsibility to timely submit a claim.

This case is interesting because, as seen below, the Civil Court held that the failure to timely submit a claim following a global denial is excused, but the plaintiff may not rely on the supposed presumption of medical necessity that attaches to a statutory claim form.  Therefore, plaintiff must make a prima facie showing that the contested service was medically appropriate in the first instance.  As seen below:

“Plaintiff contends that once defendant issues a general denial which predates any services provided by plaintiff, it is no longer under an obligation to submit claims within 45 days of the date of service. Defendant contends that its general denial does not obviate plaintiff’s obligation, under the No – Fault Law, to submit a claim within 45 days.

Defendant’s attempt to distinguish the current factual situation from the governing case of Mtr. Of State Ins Co. V. Domotor, 266 AD3d 219 (2d Dept. 1999) is unavailing….

Allstate’s “ability to resolve the claims at issue if warranted” is not prejudiced. Plaintiff had the option of continuing to submit claims, despite Allstate’s general denial, and chose not to. Since plaintiff has failed to file its claim, no presumption of medical necessity attaches to the services rendered by plaintiff.The burden therefore has not shifted to defendant to demonstrate the lack of medical necessity. See, , e.g. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 17 Misc 3d 1135A( Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 2005 NY Slip. Op. 50662(U), 7 Misc 3d 1018(A) (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings [*3]Co. 2004). At trial, plaintiff must establish the medical necessity of the services rendered and negate the general denial issued by Allstate that pursuant to an IME, no further medical services were warranted.”

It is an interesting theory that Judge Levine has posited in relation to forcing a provider to make a prima facie showing that the disputed services were medically appropriate in this factual situation.   As we all know, medical necessity is not part of a provider’s or injured person’s prima facie case.  This is a defense that only becomes relevant following the submission of a timely denied overdue statutory claim form, or in this case, proof that a global denial was issued, received and that the services were rendered after the issuance of said global denial.

Similarly, the causal relation between the loss and the injury is also a defense and is not part of a provider’s prima facie case.  In essence, what independent significance does the claim form really have?  It would appear that in the paradigm the courts have created, the only thing the claim form does is tell us how much is in dispute and, in effect, shifts the burden of production to the insurance carrier.

Thus, is there really a presumption of medical necessity that attaches to a claim form, or is the notion of medical necessity (similar to causation) presumed in the more global sense?  See, Kingsbrook Jewish Medical Center v. Allstate Ins. Co. 61 A.D.3d 13 (2d Dept. 2009); Bronx Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 17 Misc.3d 97 (App. Term 1st Dept. 2007).  I think it is the latter.

For the record, I think that the medical necessity of a service and the causal relation between the loss and the service should be a burden that falls on the provider.  It is like that in every other state.  Why should we be different?  But as this fits within the settled law in this State, it would appear that the insurance carrier in the Domotor scenario would have to prove the lack of medical necessity of a service in the first instance, similar to any other insurance carrier.

More on expert opinions February 1, 2010

I posted about the matter entitled People v Verrilli, 2010 NY Slip Op 00714 (2d Dept. 2010), involving the qualifications of certain experts on the evidence blog.  This issue has been recently discussed on this blog.  It would behoove the practitioner to familiarize himself or herself with this issue.

Emergency Doctrine – A normally stoic appellate division appears to be letteing loose (a bit) February 1, 2010

Mayard v Wheels, Inc., 2010 NY Slip Op 00653 (2d Dept. 2010)

“Under these circumstances, where McKenzie was faced with a sudden and unexpected circumstance, not of his own making, under any view of the evidence, the emergency doctrine [*2]applied (see Jones v Geoghan, 61 AD3d 638). The Wheels defendants met their burden of establishing that McKenzie was not liable for the collision involving his minivan and the Shishko vehicle (see Marsch v Catanzaro, 40 AD3d 941). A driver is not obligated to anticipate that a vehicle, upon being struck by another vehicle, will then hit a guardrail and subsequently bounce across several lanes of traffic (id. at 942). The plaintiff’s speculation that inattentiveness on the part of McKenzie caused the collision, or that he might have been able to take measures to avoid the contact with the Shishko vehicle, was insufficient to defeat that branch of the Wheels defendants’ cross motion which was for summary judgment.”

You can just imagine what the law clerk who was writing this decision was thinking when (s)he wrote the bold portion above.