Blog

After the DJ July 24, 2019

Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co., 2019 NY Slip Op 51098(U)(App. Term 2d Dept. 2019)

This case answers a question some have properly asked. At what point do the Assignee medical providers not have to be named in the underlying declaratory judgment in order for a declaration of non-coverage to be binding on the that party.

The general rule is the Magic rule, which states that res judicata will not attach to an declaratory judgment when a medical provider is not named in a DJ action. The corollary to this rule is the Astoria v. State Farm rule which says that a fully contested jury trial in a third-party negligence action involving the assignor will be collateral estoppel on the issue of non contact in an assigned first-party action despite the medical provider not having the opportunity to participate in the third-party action.

Now we have the Valdan Acupuncture rule.

” Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., [*2]140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as the injured party’s assignment to plaintiff was made on September 21, 2011, after the commencement in August 2011 of the declaratory judgment action, plaintiff is deemed to be in privity with the assignor and “charged with notice that [its] rights to the assignment are subject to the competing claim” (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 487 [1979]). “

And I am unsure if it is irony or serendipity but my good friend Gary T was involved in all three of these cases. I guess he owns all aspects of this issue. Oleg Rybak cannot own every IME/EUO/DJ issue.

IME no show July 24, 2019

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 51601(U) (App. Term 2d Dept. 2018)

I missed this one originally. And this was a big one.

” While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant demonstrated that copies of the IME scheduling letters had been mailed to the attorney who represented plaintiff’s assignor with respect to the accident in question (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “

Negligent employment July 6, 2019

Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 05267 (4th Dept. 2009)

I feel as though Mr. Walden Bailey was unhappy with the gecko and went after him with all guns blazing. I just read a story about a guy who died after eating a gecko – apparently salmonella poisoning. Luckily, Mr. Walden did not suffer the same fate and still has his breach of contract action against the gecko

” We agree with defendant, however, that plaintiff failed to allege facts constituting negligent hiring, supervision, or retention sufficient to survive defendant’s motion to dismiss. “An employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” (Lamb v Stephen M. Baker, O.D., P.C., 152 AD3d 1230, 1231 [4th Dept 2017] [internal quotation marks omitted]). Here, plaintiff’s cause of action for negligent hiring, supervision or retention is based on the factual allegations that defendant’s employees denied or delayed the payment of claims to plaintiff and sent repetitive verification demands, and that defendant was aware of what its employees were doing and continued to employ them. Plaintiff, however, [*2]failed to allege that those acts were committed outside the scope of the employees’ employment. Plaintiff also failed to allege how the employees’ alleged acts of denying claims and sending verification demands constituted acts of negligence. Thus, we conclude that the court erred in denying that part of defendant’s motion seeking to dismiss the 13th cause of action, and we therefore modify the order accordingly. “

My only misgiving here is absent discovery, how can a plaintiff really make an allegation of negligent hiring? Perhaps, the cause of action should have survived pending discovery? The Plaintiff has no way of knowing or finding a way to know why all of these claims were denied or verified. I would compare this to the situation where the EIP or the provider no-shows. Here, the provider attorney has access through subpoena power of the EIP and personal knowledge of what his or her client did or did not do.

The denial can wait July 5, 2019

Parisien v Citiwide Auto Leasing, 2019 NY Slip Op 51050(U)(App. Term 2d Dept. 2019)

The IME no-show disclaimer that is delayed for the verification. Many try to take the view that you cannot wait for verification since it will not change how the claim is handled. It is a very good argument and, in a world without preclusion, I think it wins the day.

“Although plaintiff’s assignor failed to appear for the second scheduled EUO more than 45 days before the subject claims were denied, defendant was not precluded from interposing its defense based upon the assignor’s failure to appear for the EUOs, because defendant’s time to pay or deny the claims did not begin to run until it received the requested written verification (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant established its prima facie entitlement to summary judgment, and plaintiff failed to raise a triable issue of fact in opposition. “

Helpful holdings July 2, 2019

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 51041(U)(App. Term 2d Dept. 2019)

“We note that neither defendant’s transmittal of the claims from one of its offices to another of its offices nor the location of the office within which the timely EUO scheduling letters were generated raises a triable issue of fact.”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51045(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact. “