An interesting MVAIC issue

I usually do not focus or discuss too many MVAIC cases, mainly because they do not terribly interest me and the Second Department has held that every distinctive issue involving MVAIC is either a coverage defense or an additional element of Plaintiff’s prima facie case. The First Department holds that every “condition precedent” is a defense and does not require remedies to be exhausted as a condition precedent. Pardon me for not focusing on MVAIC issues – do not think less of me.

This case interested me due to one sentence:

“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.”

Same case in Civil Bronx: Affirmed with $30 costs. By the way, we have seen the bolded comment before in prior cases. But I think the Court is wrong here. What do I know?

The term condition precedent

Lida’s Med. Supply, Inc. v MVAIC, 2019 NY Slip Op 51618(U)(App. Term 2d Dept. 2019)

” Since MVAIC established that there had been no timely filing of a sworn notice to make claim (see Insurance Law § 5208 [a]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied”

When is a condition precedent really a condition precedent? Always interesting.

MVAIC is at it again

JJ & R Chiropractic PC v MVAIC, 2019 NY Slip Op 51559(U)(App. Term 1st Dept. 2019)

” [d]efendant MVAIC failed in its burden to establish, prima facie, that plaintiff’s assignor was not a “qualified person” entitled to no-fault coverage (see Socrates Med. Health, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51780[U] [App Term, 1st Dept 2010]). Nor has defendant established that plaintiff was required to “exhaust its remedies” against the vehicle’s owner prior to commencing this action”

For some reason, I do not find MVAIC issues blog worthy. Perhaps it is because I do not deal with them frequently. But the exhaustion of remedies has caused a department split in the Appellate Terms. I take MVAIC will leave this alone since the majority of their cases take place in the Second Department, which has historically been more receptive to MVAIC’s “coverage” issue analysis.

Workers Comp

Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co., 2019 NY Slip Op 51150(U)(App. Term 2d Dept. 2019)

“Defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). ” ‘Since primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'”

PPO based discovery

North Val. Med., P.C. v Allstate Ins. Co., 2019 NY Slip Op 50904(U)(2d Dept. 2019)

This one was interesting.

(1) “A review of the record indicates that the Civil Court properly denied the branch of defendant’s motion seeking, pursuant to CPLR 3211, to dismiss the complaint. The affidavits and documents annexed to defendant’s moving papers failed to establish that the corporate plaintiff was a party to the PPO contract, dated October 1998, which states that it is between Emerth L. Coburn, M.D., as an “individual practitioner,” and MultiPlan.”

(2) ” Here, according to defendant, Dr. Coburn explicitly requested Multiplan to include within the scope of his individual PPO contract with Multiplan all bills submitted to [*2]Multiplan bearing plaintiff’s name and taxpayer identification number. Consequently, the Civil Court improvidently exercised its discretion in denying defendant’s alternate relief of compelling an EBT of Dr. Coburn, since defendant is seeking material and necessary evidence to support its defense, as defendant paid plaintiff’s claims in accordance with the provisions of the PPO contract. “

The other issue in the PPO chain is between the carrier and the third-party intermediary. Was that contract presented? We just have multiplan and the doctor individually.

No policy, no coverage

TAM Med. Supply Corp. v Hereford Ins. Co., 2018 NY Slip Op 51779(U)(App. Term 2d Dept. 2018)

“In support of its cross motion, defendant submitted affidavits by three employees who described the details of record searches they had performed and stated that their searches had revealed that there was no relevant Hereford Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavits were sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident”

Mallela – or was it?

Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C.2018 NY Slip Op 08238 (1st Dept. 2018)

This was an interesting case that discusses the distinction between the defenses of “Mallela” and “over-billing”.

“We find that petitioner’s defense is not a Mallela defense. It is based on the guilty plea of Andrey Anikeyev, who, according to petitioner, is respondent’s “de facto owner,” to conspiracy to commit health care fraud and mail fraud. Anikeyev pleaded guilty to billing insurance companies “for health care services for time periods in excess of the actual time period the patient spent with [the] acupuncturist.” This plea supports nothing more than “a defense that the billed-for services were never rendered,” which is “more like a normal’ exception from coverage (e.g., a policy exclusion) [than] a lack of coverage in the first instance” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]), and therefore does not fall into the “settled law recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage”

And then comes the real nail in the coffin: “Respondent is entitled to reasonable attorneys’ fees for this appeal, to be determined by Supreme Court”

Another policy exhaustion case went nowhere

Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co., 2018 NY Slip Op 51630(U)(App. Term 2d Dept,. 2018)

“Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.”

Nothing new here.

Prima Facie Staged accident

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51586(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51587(U)(App. Term 2d Dept. 2018)

LVOV Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 51589(U)(App. Term 2d Dept. 2018)

Is it ironic that Danny Safire, the purported owner of Jamaica Wellness Med was indicted at or about the time these cases were decided?  The fact that an attorney would appeal a case with these facts speaks volumes about so much.  I would have run for cover if I was a Plaintiff.  But read the indictment…



Policy Exhaustion goes to Madison Avenue/Someone from the Insurance Defense side should be putting in Amicu

Ameriprise Insurance Company v Kensington Radiology Group, P.C,  2018 NYSlipOp 80613(U)(1st Dept. 2018)

Respondent having moved for leave to appeal to this Court from the decision and order of the Appellate Term entered in the office of the Clerk of the Supreme Court, New York County, on or about December 22, 2017, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,It is ordered that the motion is granted. Respondent-appellant shall file two copies of the pre-argument statement and of this order with the Clerk of the Appellate Term with proof of service, pursuant to Section 600.17 of the Rules of this Court.

Underlying Decision

Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 58 Misc. 3d 144(A)(App. Term 1st Dept. 2017)

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, which denied its petition to vacate an arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $3,548.01, and confirmed the arbitration award.

Per Curiam.

Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became obligated to pay respondent’s claim.

When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 708 N.Y.S.2d 862 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580, 786 N.Y.S.2d 68 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur [*2]  of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823, 699 N.E.2d 414, 677 N.Y.S.2d 55 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1).

Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 41 N.Y.S.3d 448, 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 926 N.Y.S.2d 342, 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011]).  [**2] Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.


Please Help

If you represent no-fault carriers and do not want the Second Department priority of payment rule to be the law of the State, file an Amicus with the First Department.  Your help is absolutely required.  Without your help, the wind may very well determine the outcome of this issue.  Is that what you want?

Note:  We all can live with Harmonic v. Praetorian.  For the most part, it is a fair balance and leaves everybody unhappy.  It balances priority of payment with reality.  That said,  we CANNOT live with Alleviation v. Allstate.
Unfortunately, I do not have the papers so I cannot even send them to you if you ask .  I assume you can obtain the papers from the New York County Civil Court’s clerk’s office.  Perhaps if you contact Ameriprise’s counsel, they will provide the same to you?
Since this appeal will be heard before the Second Department Alleviation battle, this case may become dispositive of the issue.