DJ went south February 7, 2018

Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)

In the approximately  10 years, since Unitrin brought the notion of the condition precedent DJ.  And now, 9 years later, it has almost been destroyed on a less than stellar record.  You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).

Point I

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”

Two problems here.  First this was a provider EUO.   The record discloses, establishes and  discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs.  Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO).  I don’t get it.  the EUO process started before the received billing.  Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.

Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days?  I sense that discussion did not occur.

Point II

Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).”

It is like anything else – some cases need to settle.  This was one of them – watch the argument and you will see what I mean.  Luckily, Manoo settled or the First Department DJ as we know it would probably be dead.  That was a complete disaster in motion.

I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.

Many issues here will await another fully contested appeal.





Tolling of interest due to failure to prosecute February 5, 2018

Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 2018 NY Slip Op 50118(U)(App. Term 2d Dept. 2018)

No-fault statutory prejudgment interest accrues upon overdue first-party no-fault benefits at the rate of two percent per month “unless the applicant unreasonably delays the . . . court proceeding” (11 NYCRR 65-3.9 [a], [d]). While the court found that plaintiff was not entitled to the interest which had accrued between the commencement of the action on March 30, 2006 and the date plaintiff filed the notice of trial, May 30, 2013, plaintiff’s argument that the toll upon the accrual of interest should not begin until January 28, 2008, as plaintiff had not unreasonably delayed prosecution of the action prior to that date, is correct. Motions were made and discovery demands were served during the period between the commencement of the action and December 27, 2007, the date plaintiff served its second demand for interrogatories. Consequently, a motion by plaintiff to compel defendant to respond to the demand for interrogatories would have been premature prior to January 28, 2008 (see CPLR 2103 [a]; 3133 [a]; General Construction Law § 25-a). As a result, plaintiff is entitled to no-fault statutory prejudgment interest from the commencement of the action on March 30, 2006 through January 27, 2008.

that extra 40% interest on a $2,000 radiology bill will go a long way to paying fro Mr. Delta’s upkeep and expenses…

Hearsay – business records February 5, 2018

People v Jones, 2018 NY Slip Op 00710 (4th Dept. 2018)

“First, the court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule . . . [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” (People v Manges, 67 AD3d 1328, 1329 [4th Dept 2009]; see generally CPLR 4518 [a]; CPL 60.10). Moreover, although the printout was initially admitted only for the limited purpose of establishing “that the statement [reflected therein] was made,” the court thereafter instructed the jury that the printout was permitted to show that the person with the Social Security number tendered by defendant was already a customer at the bank, thereby allowing the jury to consider the printout for the truth of the matter asserted therein. As such, the People were still obligated to establish that the ” entrant was under a business duty to obtain and record the statement [reflected in the printout]’ ” (People v Patterson, 28 NY3d 544, 550 [2016], quoting Hayes v State of New York, 50 AD2d 693, 693-694 [3d Dept 1975], affd 40 NY2d 1044 [1976]; see Matter of Leon RR, 48 NY2d 117, 122 [1979]; People v McKinley, 72 AD2d 470, 476-477 [4th Dept 1980]). The People failed to fulfill that foundational requirement here (see Manges, 67 AD3d at 1329; compare Patterson, 28 NY3d at 547-548; People v Ferone, 136 AD2d 282, 289-290 [2d Dept 1988], lv denied 72 NY2d 859 [1988]).

Second, the court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone [*2]number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records” (People v Brown, 13 NY3d 332, 341 [2009]; see People v Cratsley, 86 NY2d 81, 89 [1995]).”

The world of business records, duties to impart and familiarity with the original entrants business practices.

Fee Schedule/not precluded January 26, 2018

Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 50095(U)(App. Term 2d Dept. 2018)

“Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.”

“As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).”

This is what I take from this case.  First, an untimely denial is not fatal to a defendant’s fee schedule defense.  Second, a late payment in full (where there is a fee schedule defense) will not require interest payment provided there was an overbilling.  And again, a certified coding affidavit will knock out the modality billing if properly paid in the first instance (I assuming there is modality billing here)

Policy voided January 26, 2018

Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co., 2018 NY Slip Op 50080(U)(App. Term 1st Dept. 2018)

“Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).

In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).”