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EBT’s in no fault practice – “laches does not apply” June 4, 2009

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. 2009 NY Slip Op 51073(U)(App. Term 2d Dept. 2009).

In yet another defeat to the Plaintiff’s bar in no-fault actions in the Second Department, the Appellate Term has now held that the passage of time will not in and of itself act to waive the right of an insurance carrier seeking to take an EBT of the Plaintiff.

While the facts do not state it, an EBT in no-fault is conditioned on the EBT not being palpably improper, which outside the corporate structure world, would mean that the insurance carrier has presumably presented proof of a timely and valid denial. The case law has already discussed this point.

This decision, as many know, is in contrast to Accurate Medical, P.C. v. Travelers Ins. Co. 13 Misc.3d 133(A)(App. Term 1st Dept. 2006), which held that:

“the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.”

Accurate Medical did not cite to any authority for its rule of law, whereas the Queens Chiropractor Court cited to Kornblatt v Jaguar Cars, 172 AD2d 590 (2d Dept. 1991). The pertinent section of Kornblatt states the following:

“Finally, the plaintiff’s invocation of laches to prevent the production of the records lacks merit. In a deposition on March 9, 1988, JCI had requested the tax returns, but the plaintiff refused. Possessing the knowledge that JCI wanted the returns, then, any prejudice suffered by the plaintiff a year later when the court compelled their production was of his own making, and he cannot now complain.”

Yet, a reading of Kornblatt shows that a party resisting an EBT demand can assert laches, provided he or she demonstrates prejudice. But, it is hard to imagine how a showing of “prejudice” would be proved in a majority of litigated no-fault cases.

EBT's in no fault practice – "laches does not apply" June 4, 2009

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. 2009 NY Slip Op 51073(U)(App. Term 2d Dept. 2009).

In yet another defeat to the Plaintiff’s bar in no-fault actions in the Second Department, the Appellate Term has now held that the passage of time will not in and of itself act to waive the right of an insurance carrier seeking to take an EBT of the Plaintiff.

While the facts do not state it, an EBT in no-fault is conditioned on the EBT not being palpably improper, which outside the corporate structure world, would mean that the insurance carrier has presumably presented proof of a timely and valid denial. The case law has already discussed this point.

This decision, as many know, is in contrast to Accurate Medical, P.C. v. Travelers Ins. Co. 13 Misc.3d 133(A)(App. Term 1st Dept. 2006), which held that:

“the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.”

Accurate Medical did not cite to any authority for its rule of law, whereas the Queens Chiropractor Court cited to Kornblatt v Jaguar Cars, 172 AD2d 590 (2d Dept. 1991). The pertinent section of Kornblatt states the following:

“Finally, the plaintiff’s invocation of laches to prevent the production of the records lacks merit. In a deposition on March 9, 1988, JCI had requested the tax returns, but the plaintiff refused. Possessing the knowledge that JCI wanted the returns, then, any prejudice suffered by the plaintiff a year later when the court compelled their production was of his own making, and he cannot now complain.”

Yet, a reading of Kornblatt shows that a party resisting an EBT demand can assert laches, provided he or she demonstrates prejudice. But, it is hard to imagine how a showing of “prejudice” would be proved in a majority of litigated no-fault cases.

Cornell May 29, 2009

Cornell Med., P.C. v Mercury Cas. Co.
2009 NY Slip Op 29228 (App. Term 2d Dept. 2009)

This case is extremely complicated. There are two points of law that came from this case. The first point of law that came from this case, and it is significant, is that a prima facie demonstration of failure to bill in accordance with the fee schedule raises an inference that a plaintiff attorney is not entitled to an attorney fee. The plaintiff attorney must then prove the two exceptions that are set forth in 65-4.6(i). Secondly, a counterclaim for monies paid in excess of the fee schedule is untenable.

Acupuncture may be paid at the chiropractor rates as a matter of law May 29, 2009

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co.
2009 NY Slip Op 51017(U)

It is amazing that Plaintiffs are still fighting what the proper reimbursement is for acupuncture services that are paid at the chiropractor rate. Some Plaintiffs are still arguing that the “geographic reasonable value” is the proper basis for no-fault compensation. Others are arguing that the defendant’s claims representative needs to affirmatively state that the insurance carrier’s standard practice is to pay claims at the chiropractor rate.

This case holds that reimbursement at the chiropractor rate is proper as a matter of law. Period. No strings, no streamers and no conditional statements to the contrary. From a point of practice, this case only discusses reimbursement under CPT Code 97780. Thus, a case coded with CPT Code 97780 and paid at the physician rate ($42.84) or at the chiropractor rate ($29.30), should allow the insurance carrier to prevail on motion or at trial.

Once the Appellate Term breaks down the proper amount of compensation for CPT Codes 97810, 97811, 97813 and 97814, then the paradigm will be completed.

Stricken v. dismissed May 29, 2009

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 29226 (App. Term 2d Dept. 2009)

I am not sure why this case did not receive a (u) or Misc.3d(A) citation, but I take it the Appellate Term is trying to remind people what the difference is between an action that is sticken from the calendar verses an action that is dismissed due to a party’s non-appearance. If a non-superior court case is stricken, you have one year to restore it. Restoration needs to be made by motion (or so-ordered stipulation) and a reasonable excuse needs to be set forth as to why the matter was stricken. Compare, CPLR 3404 (Superior court actions can be revived as a matter of right within one year from the Note of Issue being stricken). After one year, you need to satisfy the four factors that defendant and the Civil Court argued needed to be satisfied. Contrariwise, if a case is dismissed, then the traditional 5015 factors need to be proved in order to revive the case.

Strategically, a no-fault plaintiff many times would prefer to have a case dismissed for non-appearance provided the six year SOL has not expired, than have it marked off the calendar. A dismissed case can be refiled, as long as it is without prejudice which is usually the case in the Civil Courts. A case marked off the calendar is not dismissed. And, in the Second Department, it probably can never be dismissed since 3404 does not apply.