Preclusion July 7, 2021

While the insurance carriers do not generally have bad faith in New York and the statutory attorneys fees are anemic, the rule on preclusion in the no-fault sphere acts often times acts as the great equalizer. That said, the preclusion remedy over time has been chipped away, but the “nuts and bolts” no-fault defenses still fit within that gambit.

The Fair Price family of preclusion issues has always been one of the more intriguing rules of law that have developed over time. For purposes of this post, the material misrepresentation corollary is also quite poignant as the failure to timely disclaim precludes this defense. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 A.D.3d 603, (2d Dept. 2009)

But as the reader probably knows, these claim based rules of preclusion are quite unique to NY. In Fla, it was the rule through their Appellate Division that the material misrepresentation defense has to be timely disclaimed. The Fifth DCA has changed course:

United Auto Ins. Co. v. AFO imaging, et. al., 5D20-2442

(1) “The Florida Supreme Court has explained that section 627.736(4) describes when PIP benefits are due and the method by which notice must be given. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 891 (Fla. 2003). The Florida Supreme Court has also observed “the insurer is not barred from contesting the claim just because a payment becomes overdue.” Id. “

(2) “Because section 627.736(4)(i) does not alter the penalties for overdue payments, the Florida Supreme Court’s previous pronouncement still applies: United Auto is not barred from contesting the claim just because the
payment became overdue. In so holding, we do not address the propriety.”

So there you go

Would you have appealed as a Plaintiff? July 7, 2021

Nieva-Silvera v Katz, 2021 NY Slip Op 04144 (2d Dept. 2021)

Cervical fusion, arthroscopic surgery, verdict reduced to 2 million.

Plaintiff appealed and received another $570,000 from the Second Department. Would you have appealed for the extra $570,000?

I can tell you if I walked home with $2 million from a runaway jury after reductions at the trial court, I would have entered the appropriate judgment and said pay me. I think this was a bit piggish, unless the client was screaming and saying the reduction was unfair and demanded an appeal.

As I always say – what do I know?

Manual muscle testing from the 4th DCA June 24, 2021


(1) “Provider billed Allstate using four different Current Procedural Terminology (“CPT”) codes as published in the American Medical Association’s CPT Manual, two of which are relevant to this case: CPT code 99205-25 (“the evaluation and management code”) and CPT code 95832 (“the manual muscle testing code”). Allstate paid the evaluation and management code claim but denied payment for the manual muscle testing code claim. Allstate explained the reason for the denial as follows: “The provider has used modifier -25 to identify that on this date of service, the patient’s condition required a significant, separately identifiable [evaluation/management] service above and beyond the other service provided . . . .” In accordance therewith, Allstate requested additional documentation demonstrating the appropriate use of the modifier -25. Provider did not submit the requested additional documentation.”

(2)”We adopt the county court’s well-reasoned order in its entirety. As correctly found by the county court, the evaluation and management code encompassed the manual muscle testing code. As such, in order to unbundle the codes, Provider was required to provide a separate written report explaining why the manual muscle testing was necessary beyond the gross muscle testing encompassed within the evaluation and management service. See State Farm Mut. Auto. Ins. Co. v. R.J. Trapana, M.D., P.A., 23 Fla. L. Weekly Supp. 98a (Fla. 17th Cir. Ct. May 14, 2015) (review of X-rays improperly unbundled from evaluation and management code where the provider did not provide a separate report “solely about his interpretation of the X-rays”). Merely including a notation in the single four-page report and adding a modifier -25 to the evaluation and management code was not enough to bill for the codes separately. Moreover, although Provider later provided the evaluating physician’s affidavit explaining why the manual muscle testing was necessary, this does not change the fact that Provider failed to provide a separate report when submitting its bill.”

Manual muscle testing, It appears, the foundling rule is valid when the initial or follow-up extermination done on the same day as the MMT is rather devoid of data. For all my years of no-fault, the unbundling argument has always confounded me somewhat. Interstingly, this case gives me a new outlook on MMT and unbundling.

Not at 200% in Florida- what happens? June 24, 2021

Geico Indmenity Co. v. Muransky Chiropractic, P.A., No, 4D21-457 (Fla. 4th DCA 2021)

When a no-fault statute gives the carrier an option to write in terms, we end up with messes. The Gecko did this in the within case. Under Florida’s statute, payment is limited to 80% of 200% of Medicare Part B of the year the service is rendered (2007 is the base fee year). Certain Medicare ground rules are applicable to limit the rate of payment, most usually applied int he MRI context. The open question is what happens when a provider bills an amount less than 80% of 200% of the Medicare amount?

Geico was cute and said it is always 80% of what is billed. And heck, they beat a class action when the 11th Circuit reversed a Southern District Judge’s decision holding, what we knew was the law, that if the billing is less than 80% of 200%, then the carrier pays the amount billed.

“The 4th DCA (Broward and Palm Beach County – think Mara Lago and Cops in Fort Lauderdale) agreed with the vacated Southey District Federal Judge’s holding. (“For instance, if a provider submits a bill for $100 and the amount allowed under the Schedule for that service is $150, the insurer could reimburse the provider $120 (80 percent of the amount allowed under the Schedule) or $100 (the Lesser Charge).”). Therefore, Geico’s argument that the statute requires coinsurance to apply to all billed amounts is clearly erroneous as the statute merely provides that an insurer may opt to limit reimbursement to the typical 80% reimbursement rate”

I liked the footnote: “Additionally, while Geico did not agree with the trial court’s ultimate holding, it “agreed on the language in the proposed Final Judgment.” In other words, we make no determination as to what the result would have been had Geico contested billed amounts under the 200% of the statutory fee schedule but above the 80% reimbursement rate.”

“Equitable estoppel” – Domotor light June 22, 2021


Florida’s version of American Transit Ins. Co., United Auto Ins. Co, disclaimed benefits on the basis of a purported material misrepresentation that was made on the insurance application. United later realized there was no material misrepresentation and they were mistaken.

Medical provider sends bills United Auto Ins. Co well after the 35-day period under FSA 627.736(5)(c) to submit the bills. United Auto denies on this ground.

Provider brings a lawsuit stating that the insurance carrier is “equittably esopped” from disclaiming coverage based upon the prior disclaimer.

Presuit demand was made; the carrier did not pay. A lawsuit was commenced in Miami-Dade County Court. The parties agreed that necessity, relatedness and reasonableness were not issues. The parties made dueling summary judgment motions. The County Court sustained the defense of equittable estoppel

United appealed and the 3d DCA affirned in a written opinion.

“Through no fault of his own, Akins was advised by United Auto that he was not covered by PIP, and relying on this information he told CCSF that he had no PIP coverage. Neither Akins nor CCSF discovered United Auto’s error until January 2015, and CCSF sent its bill to United Auto within thirty five days of that discovery. Despite this, United Auto continued to deny coverage until November 2018, months after discovery revealed that United Auto had based its denial of coverage on the wrong Dorothy Akins. The problem is one of United Auto’s making, not Akins’ or CCSF’s

United Auto denied Akins had PIP coverage based on United Auto’s faulty research –not, as United Auto asserts, on Akins’ failure to provide accurate information. Once forced to concede its error, United Auto changed its tactic, and sought to avoid coverage by arguing CCSF failed to submit its bill within the statutory thirty-five days from provision of services. This is a circumstance in which equitable estoppel applies in order to avoid an unreasonable and unjust result. We conclude, on de novo review, that United Auto was properly estopped from denying coverage based on its own


Assume a medical necessity denial (they come in few and far between) or an EUO no-show denial (those are frequent). Can I still argue equitable estoppel? I called this “Domotor light” because I do not know the answer. Instead of a broad based legal pronouncement, I get a fact based nuanced decision. Florida courts are good like this. They hate deciding broad issues. First, you generally have either the PCA or summary reversal. Assuming you can get past that, the written decisions are quixiotic. And things are “better” now that the County Court orders go to the DCA as opposed to the “Circuit Court Appellate Division” where the orders were usually not even reported.