The Ins Law 5106(c) trial de novo July 13, 2022

If I were to use this blog for advertising purposes, I would recommend consulting with me if you receive a PIP trial de novo. It is a side business and I have seen some of the most interesting behaviors..

But, on a more serious note, when an insurance carrier uses a de novo action for no reason other than to force settlements, you know the statute is not being properly applied. But I put the blame on the arb attorneys who will actually negotiate disadvantageous settlements after they won twice. If I am an insurance carrier and I see that behavior, my more venal side might ask you to prove yourself. My worst day is an 80-50 settlement. The good faith side of me would shy away from these absent a legitimate reason. I believe I always have a legitimate reason to dive down the de-novo train.

And that brings me to something else. If you can figure out how to properly litigate one of these suckers, the insurance carrier should usually lose, with minimal provider based discovery. Why? Who holds the cards in these cases? Who bears the burdens of proof? Who has the relevant documentation? Who has the skeletons on the closet?

Justification for a lt July 13, 2022

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50623(U)(App. Term 2d Dept. 2022)

“While defendant’s claims specialist stated that defendant had not received any of the documents that defendant’s verification requests sought to obtain, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” Thus, [*2]plaintiff failed to demonstrate that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order”

That underline passage is important. If performed during the claims processing stage and the basis is properly articulated, the App. Term may go along with it,”

Policy exhaustion -or was it? July 13, 2022

JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50562(U)(App. Term 2d Dept. 2022)

“To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018])”

The 3.15 argument is what it is. But the failure to satisfy 4518(a)? Those are five lines in the a claims rep affidavit.

The if I was there EUO dance July 13, 2022

Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581(U)(App. Term 2d Dept. 2022)

“Plaintiff also argues that the affirmations submitted by defendant to demonstrate that plaintiff had failed to appear for the EUOs were insufficient because they do not establish that defendant’s “attorneys were actually present at the times the EUOs were scheduled to be held.” [*2]We reject that argument. Defendant submitted the affirmations of two different partners in the law firm representing defendant in this action, each addressing one of the two scheduled EUOs. The first one stated that an EUO was scheduled to take place at 10:00 a.m. in the firm’s offices on December 2, 2014; that counsel was present in the office prepared to conduct the EUO on that date; that he would have conducted the EUO if plaintiff had appeared; and that plaintiff did not appear. The second affirmation stated that an EUO was scheduled to take place at 10:00 a.m. in the firm’s offices on January 9, 2015; that counsel was present in the office on that date and was in charge of determining whether the EUO would go forward; that if plaintiff had appeared, he would have conducted the EUO or assigned another attorney to conduct it; and that plaintiff did not appear. Contrary to plaintiff’s argument, these affirmations were sufficient to demonstrate, prima facie, that plaintiff failed to appear for the EUO”

I would have denied the motion. This is the garbage affidavit that lead us to Alrof over a decade ago,

Acupuncture July 13, 2022

Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2022 NY Slip Op 50603(U)(App. Term 2d Dept. 2022)

“In support of its motion, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by demonstrating that it had fully paid plaintiff for the acupuncture services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 68 Misc 3d 132[A], 2020 NY Slip Op 51004[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]) and that the subject claims sought the difference between the amount plaintiff charged for the services rendered and the payments made. In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact (see Master Cheng Acupuncture, P.C. v Global Liberty Ins. of NY, 69 Misc 3d 143[A], 2020 NY Slip Op 51371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2020 NY Slip Op 51004[U]; cf. Global Liberty Ins. Co. of NY v Acupuncture Now, P.C., 178 AD3d 512 [2019]).”

Three citations to a defunct insurance carrier. Two stand for the chiropractor fee schedule proposition, one stands for “it depends”. The one where “it depends” is quickly c.f.’d…