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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

UNITED AUTOMOBILE INSURANCE COMPANY, vs CHIROPRACTIC CLINICS OF SOUTH FLORIDA, PL, A/A/O MICHAEL AKINS, No. 3D21-111

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
conduct.

Affirmed.”

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.

Bad faith averted for another year June 15, 2021

One of the things that I find readily amazing is that notwithstanding a veto proof progressive majority, bad faith reform cannot pass the Legislature. The current law, which comes from the 1994 Pavia standard, on third-party claims requires an almost criminal indifference before bad faith is actionable. In my thinking, the only sure fire way to get third party bad faith is to prove on motion: (1) liability; (2) threshold; and (3) 30-day demand letter to tender, assuming the injuries are in excess of the policy. Outside that formula, you may end up with the recent NYCM case were the opinion of their IME doctor denying causation was sufficient beat back a bad faith claim as a matter of law. Yes, you can give the bad faith speech before you open, prove your case and hope the defense does so bad that you can get to trial on the assigned bad faith claim that comes post trial.

Now, what is most interesting is that first-party bad faith (PIP and UM/UIM/SUM) is actionable when the carrier behaves poorly and the benefit denial or settlement offer is unreasonable. This fits under 349 and standard bad faith. For the no-fault practitioners, your bad faith/349 is probably going to be limited to a wage case where your client was significant injured and the carrier’s behavior is quite inappropriate.

What is some of the bad behavior? Repetitive EUOs, Unjustified defenses based upon IME results, Harassment through DJs that on their face are contradicted by arbitration decisions and the lack of a come to jesus moment when called on it, Trial de novos that are inconsistent with reality , disclaimers not based in fact or reality. Also, make sure you obtain the claims notes in litigation. There is always a treasure trove in those documents. Privilege in NY is narrow – it only comes into play after litigation is commenced. Florida has a claims note privilege by the way – NY does not.

On the SUM side? A bad injury where claim reps refuse to settle for the value of the case. These cases require a back and forth dialogue I believe where the value is understated (prior to suit or arbitration) or the IME that is consistent with the Claimant’s position but disregarded by the carrier. I do believe the first-party bad faith is generally easier to prove, but it is by no means an easy fete. It takes tried and true patience to beat summary judgment.

What I do notice, however, is that the absence of a stringent bad faith law often incentives the conduct that forms the bad faith. For those in a southern state (I use Florida because I practice there also), bad faith is usually proven through a facial submission that the claim is worth more than the policy and the absence to tender within the confines of a time demand letter was negligent. Some states require the filing of something called a “Civil Remedy Notice” (CRN) which is a condition precedent to ascertaining bad faith. But under the modern bad faith structure, the carrier has to look at the liability, the board-able medicals (bills), the non-economic injury (presented) and make a business decision: will this break the policy? Because once the time demand expires, the bad faith train has left the station.

But what is really interesting is that even in bad faith world, it is the rare case that a case qualifies for the green geico check (amounts over policy get a different color check since the funds are drawn from a different account). The reason is that the carriers will usually put up a decent some of money to resolve a case and the Plaintiffs do not want to risk a defense verdict. Or the carrier tenders untimely and the Plaintiff just wants the case done and over with,

Why will a carrier try a “bad faith” case? Liability is always a reason but lets assume a rear end collision and the absence of a liability defense. It is going to be the belief that the Plaintiff attorney is a “pre-suit lawyer” and cannot try a case (not a bad bet) or that the injuries are overstated that will cause the carrier to risk the policy.

And generally, the bad faith cases are within the 10-100 thousand policy zone. Once a policy of $250k and above is on the table, the risk of bad faith diminishes because most successful jury verdicts for standard soft tissue cases are in that ball park.

If New York passed bad faith reform, you would see your $25-$50k policy cases following 6 months of treatment with + MRI and+ EMG + 3 epidurals settle quickly. The risk is too great. Your $100K cases with a scope (the standard surgery here in NY) will most likely resolve because the risk, again, is too great that the case will “hit”. Surgery in metro New York that beats threshold is a 6 figure number.

I also tend to thin “no surgery” cases on a 25-50 will probably settle at or near policy at TAP because at that point, there is real risk. No, I am not talking about the 3 month and living normal life again. The risk of a carrier losing those under current law is minimal. I do not see “rolls of the dice” on slower impact fusions at the $250k level because that surgery is 0 or $1m at trial. Again, the risk is tremendous.

The cases that will get tried will involve lower tiered carriers who will game New York’s slow court system and the one’s where the Plaintiff thinks that s/he got defendant into a bad faith trap and a has a client who is willing to play some roulette.

The causalities of bad faith will be outside defense counsel. More jobs will go in house as the amount of trials diminishes tremendously. Another casualty will be lawyers looking for jobs as most cases settle pre-suit. Combined with post Covid changes to the practices will force “litigation” lawyer to try a different track or field. The court system will lose 50% of its PI cases because the NY model of file first and ask questions later will appropriately change to file only when the carrier is perceived as being unreasonable. The higher policy cases will still involve litigation because bad faith really does not play a factor in the $1M and up policy club.

Is a more robust bad faith law a bad idea? I leave that to you,

Verification – MRI June 11, 2021

Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co., 2021 NY Slip Op 21157 (Civ. Ct. NY Co. 2021)

“Although plaintiff submitted decisions from no-fault arbitrations where the arbitrators ruled that the provider’s responses to demand payment of reproduction costs complied with the insurer’s verification requests (see plaintiff’s supplemental affirmation in opposition, arbitration awards), this court declines to follow those arbitration decisions. Those decisions rest on the premise that the toll triggered by the insurer’s verification request ended when the provider demanded payment of the reproduction costs. However, as discussed above, in this court’s view, the insurer’s right to demand and receive verification is not contingent upon the insurer’s payment of the reproduction costs. Thus, the provider is not excused from complying with any verification requests to provide the MRI films until it was reimbursed the reproduction costs. Consequently, the toll did not end either when plaintiff responded that defendant must pay the reproduction costs before receiving the MRI films, or when defendant had promised but failed to pay the reproduction costs. The toll should not end because plaintiff had not objected to providing the MRI films, and the verification sought was never provided”

Often when I subpoena records, the entity if they charge a copying or professional cost and will provide the records with a bill. I would assume the provider could later sue for the $5.00, yet without threat of an attorney fee (the 20% rule makes these lawsuits untenable), where does this really lead us?

When many new Court of Appeals Judge is a former prosecutor June 11, 2021

This is not too off topic. The Court of Appeals is run by the prior DA of Westchester. Nassau County DA Singas has now been elevated to the Court of Appeals. Finally, Judge Garcis was a former prosecutor. Judge Cannataro was just elevated to the Court of Appeals but he reminded me of Judge Jeremy Weinstein – a professional administration judge, Not a bad thing mind you.

So how does a bench with a dearth of Civil non-criminal experience handle insurance disputes and personal injury disputes? I really do now know. I have read on the criminal law blogs that the defense bar is crying, and I can understand their concern.

But it seems that much of the decisions seem to be not necessarily on the pro-consumer side. Simmons v Trans Express Inc., 2021 NY Slip Op 03484 (2021)(in effect killing a wage and hour case through limited the bar on collateral estoppel found in the uniform small claims acts); Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 2021 NY Slip Op 03485 (2021)(expanding the term consumer in GBL 349 but affirming the dismissal of the action anyway)

I always said take practitioners from all walks of life and let them be appellate judges. People in robes for too long sometimes forget the street hustle that us practitioners live.