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Unitrin celebrated its 10th birthday this year November 10, 2021

Impulse Imaging, P.C. v State Farm Fire & Cas. Co.. 2021 NY Slip Op 51031(U)(

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on two grounds: (1) that plaintiff’s assignor had failed to appear for examinations under oath (EUOs), a defense which is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), and (2) that there was a lack of coverage in that the incident from which the alleged injuries arose was a staged accident, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).”

It is not as if this decision is in any way notable. I would consider this a typical decision except with the caveat that it is the rare time that the Court cites both cases in its order.

But this was Unitrin’s birthday year. Where are the baloons.

Interst-ing October 21, 2021

PRECISION DIAGNOSTIC, INC., v. PROGRESSIVE AMERICAN INSURANCE CO., No. 4D21-48 (Fla 4th DCA 2021)

“We find that the trial court erred in its interpretation of sections 627.736 and 55.03, Florida Statutes (2020), for
purposes of calculating interest, but we agree with the trial court that the amount in controversy—$4.17—was de minimis. We affirm”

I will save you the reading. Interest in Florida is variable. The rate changes quarterly, thus the rate of interest depends on when the benefit became overdue. At that point, the rate of interest resets every January to the rate for that month until the benefit is paid in full.

Most of us in Florida knew this. Progressive did not. But here is the rub or theft:

“A de minimis amount in controversy does not warrant reversal. See Eureka Corp. v. Guardian Tr. Co., 139 So. 198, 199 (Fla. 1932) (“[B]y the well-settled rule of this court under the facts of this case such an allowance was de minimis no curat lex, for which reversal does not lie.”). In United Automobile Insurance Co. v. Alfonso, 17 Fla. L. Weekly Supp.
887a (Fla. 11th Jud. Cir. July 1, 2010), the court applied the doctrine of “de minimis non curat lex” to a suit for a purported interest miscalculation of $2.53 “brought painfully for no other justification than the award of attorney’s fees.” Id. Similarly, it appears that the present case was brought not for the de minimis interest, but rather for the award of attorney’s fees.”

I think Gary T who hates being shortchanged any interest and an attorney fee would find the doctrine of “de minimis non curat lex” tasteless and sue on constitutional grounds 😉

Proposal For Settlement October 18, 2021

CENTRAL FLORIDA MEDICAL AND CHIROPRACTIC CENTER A/A/O RONALD SEALEY vs PROGRESSIVE AMERICAN INSURANCE COMPANY, Case No. 5D21-29 (Fla 5th DCA 2021)

“Unlike other rules of civil procedure, Rule 1.442 clearly specifies the cases to which it applies. Despite the general statement of Rule 1.010, Rule 1.442 very clearly and unambiguously states that it “applies to all proposals for settlement authorized by Florida law.” As set forth above, Florida law is clear that proposals for settlement are authorized in PIP cases filed in small claims court. Therefore, by its own terms, Rule 1.442 would apply in this
case. Even if Rule 7.020 could be read to conflict with or contradict this conclusion, Rule 1.442 resolves any such conflict: “This rule . . . supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.” Fla. R. Civ. P. 1.442(a). Because the rule by its very terms applies to actions filed in small claims court, we find that Progressive was not required to specifically invoke Rule 1.442 in order for its proposal for settlement to be enforceable.”

This was a $76,000 attorney fee award for Progressive. See CPLR 3220.; Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 186 A.D.3d 585, 586 (2d Dept. 2020)

Evidence: The MRI report October 16, 2021

Most sane practitioners stipulate to medical records and then try the case on its merits. But NY civil practice is the true game of ambush warfare. And this is partly due to 3101(d) disallowing expert witness discovery and the necessity of HIPPA AZ’ for anything. Expert witness discovery on both sides due to actual testimony does away with much of the outrageous evidently shenanigan that we deal with in NY.

Fun fact – other states require the adverse party to challenge a non-party subpeona for medical records otherwise same is waived. Read: 46 CFR 164.512(e)(1). Also, read Fla. R. Civ. Prop 1.351. I submit to you that the Rules in the State should be amended to allow this type of discovery

In New York, both sides can come out of the word work, raise the most baseless evidentiary objections and gum up a trial. This is a problematic quirk in the NY system. The Chief Administrative Judge is more interested in wasting our time with word counts and statements of material facts. Worthless ventures in most cases the non-commercial bar handles. Free tip. Your statement of facts should be a carbon copy of your attorney affirmation.

And I agree that if you can’t ask the 10-15 questions to meet CPLR 4518(a) you should not be trying cases, but the ambush warfare goes beyond that.

I saw this case that really looked interesting, and I am sure the rationale behind it isn’t a newfound understanding to the law on evidence; rather. it represents the fact that former trial judges that now sit on the Appellate Division see the harm that our non-codified common-law “evidentiary” system has placed upon sane practitioners who want a clean trial.

Madia v Garcia, 2021 NY Slip Op 05632 (1st Dept. 2021)

“The MRI films and reports demonstrating those injuries were properly admitted as part of the file of plaintiff’s treating doctor, notwithstanding that they were created at an outside facility (see Freeman v Shtogaj, 174 AD3d 448, 449 [1st Dept 2019]). Plaintiff’s doctor also properly relied on those records in offering his opinions at trial, which were based not only on the MRIs, which he ordered, but also on his own examination and tests (see id. at 449-450).”

If I sat on the rules committee, I would create an evidence code, rework 3101(d), rework the HIPPA rules, create pre-trial motion in limine rules, mandate evidentiary stipulations absent good cause shown, and give the practitioner a real framework of the evidentiary and issue parameters of a trial will be. I think the current system is broken and in need of repair.

Was it fraudulent billing? October 8, 2021

CEDA HEALTH OF HIALEAH, LLC, etc., vs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY , 3D21-11

Similar to the 2012 NY regulatory changes, the Florida law prohibits billings for services not rendered. See FSA 627.736(5)(b)1.c.. The statute, when triggered, applies to all billings. The NY regulation only seems to apply to services that were billed but not provided.

Here are the facts: ” Dr. Canizares testified that he did not have personal knowledge of the treatments, but that
based on his review of the records, it appeared that two units of Current Procedural Terminology (“CPT”) code 97110 were mistakenly billed at $90.00 each instead of one unit of CPT code 97110 at $90.00 and one unit of CPT code 97112 at $95.00. Dr. Canizares attested that two units of code 97110 were billed, although only one unit was performed on the date of treatment, and that there was no entry for code 97112 although one unit was performed on that date”

The question is whether the provider’s using 97110 twice as opposed to CPT 97110 and 97112 was the prescribed conduct that triggered the bill wipe out provsion of FSA

“We conclude the trial court improvidently granted summary judgment because there remained a genuine issue of material fact as to the manner and method in which the billing error occurred, particularly whether CEDA Health knowingly submitted the erroneous billing. State Farm did not submit any evidence to rebut Dr. Canizares’s testimony that the error was a mistake, nor did it submit any evidence demonstrating whether CEDA Health had actual knowledge of the information, acted in deliberate ignorance of the truth or falsity of the information or acted in reckless disregard of the information. Nonetheless, the trial court decided this key question of fact at the summary
judgment stage apparently concluding the negligent one-time billing error satisfied the statutory threshold. The Legislature has expressly defined the term “knowingly” with respect to insurance rates and contracts requiring that
a person “has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the information.” § 627.732(10), Fla. Stat. Negligence, which is commonly defined as the failure to use reasonable care, is not the standard. As such, the trial court’s finding of negligence was not sufficient to resolve this issue of fact regarding whether CEDA Health knew of the
erroneous billing information.”

I see a $100,000 attorney fee for CEDA on this case.