EUO no-show from the First Department – lucky win by Mapfre?

Mapfre Ins. Co. of N.Y. v Manoo, 2016 NY Slip Op 04446 (1st Dept. 2016

This is an interesting one.  I believe (see below) the dissent was misconstrued.

“Plaintiff made a prima facie showing of its entitlement to summary judgment dismissing Active Care’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for EUOs to Manoo and that Manoo failed to appear at his initial and follow-up EUOs. The record establishes that plaintiff requested Manoo’s initial EUO by letter dated February 3, 2012. Although Active Care’s NF-3 form is dated February 7, 2012, plaintiff was entitled to request the EUO prior to its receipt thereof…..  The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of a claim form…

Once Active Care presented its claim dated February 7, 2012, plaintiff was required to comply with the follow-up provisions of 11 NYCRR 65-3.6(b)…Plaintiff established that it fulfilled its obligation under § 65-3.6(b) by rescheduling Manoo’s EUOs within 10 days of his failure to appear at each scheduled exam (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136(A) [App Term, 2d Dept 2012]). The second EUO scheduling letter was sent on February 23, 2012, which was just seven days after the February 16, 2012 nonappearance. The third EUO scheduling letter was sent on March 16, 2012, which was just seven days after the March 9, 2012 nonappearance.”

What is interesting here is that the Court I believe answered the question I thought was left open in the last EUO appeal from this Plaintiff’s law firm.  That is, remember where there were three EUO attempts (this was found in the record), the first two were appropriately scheduled and third EUO was scheduled more than 10-days after the second EUO?   Encompass Ins. Co. v. Rockaway Family Med. Care, P.C., 137 A.D.3d 582, 26 N.Y.S.3d 697 (N.Y. App. Div. 2016)

The Court now answered that the 10-day requirement applies to all follow-up EUO attempts.  Thus, Encompass (if decided today) would have been a loser.

What is also interesting is the Court again is distinguishing pre-claim and post-claim EUO protocols “after Manoo failed to appear at that EUO, and Active Care submitted its verification, plaintiff twice rescheduled the EUO in conformity with the requirements of 11 NYCRR 65-3.6(b)”  I do not understand the relevance of Active Care’s NF-3 forms as it relates to allowing the Assignor two attempts (and three here) to appear for an EUO.   This would be a red herring.

Finally, I think the majority mischaracterizes Justice Acosta’s dissent.  I read this dissent as saying that counsel for Mapfre failed to include in their moving papers an affidavit as to when Active Care’s NF-3 was received; and therefore, the motion was properly denied without regard to the lack of sufficiency of Plaintiff’s papers.  And I would say at this point, counsel for insurance carriers should know the contours of Unitrin.

It looks like Justice Acosta did not want to reward sloppy papers from an insurance carrier.  Legal papers before a Supreme Court should have more effort expended on them than that found in the value meal at the McDonalds drive-through.

“[p]laintiff failed to tender proof that it received Active Care’s verification. Thus, plaintiff did not demonstrate that it requested Manoo’s EUO subsequent to such receipt within the time prescribed in the Insurance Department Regulations (11 NYCRR) § 65-3.5[b] [“subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms”] [emphasis added]). Plaintiff’s argument that it submitted evidence showing that its request for Manoo’s EUO was made prior to the date of Active Care’s claim is unavailing in the absence of proof of when the claim was received

A lucky win by Mapfre

Motion to dismiss complaint reversed – the interest clock continues

High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027 (1st Dept. 2016)

(1) “Here, the complaint standing alone failed to apprise defendant insurance companies of basic pertinent information to put them on notice of the claims against them, such as the patients treated and the insurance policies issued by defendant, under which plaintiff submitted claims for treatment rendered. However, in opposition to defendant insurance companies’ motion to dismiss, plaintiff submitted an affidavit from its principal with an exhibit attached providing such information. Thus, the complaint and affidavit submitted in opposition sufficiently apprise defendant insurance companies of the “transactions, occurrences, or series of transactions” that form the basis of the complaint (CPLR 3013).”

(2) “Contrary to defendant insurance companies’ further contention, the complaint sufficiently alleges that plaintiff is the assignee of claims under the policies issued by defendant insurance companies. Defendant insurance companies’ further contention that plaintiff failed to appear for [*2]examinations under oath, which is a condition precedent to coverage (Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]), presents a factual issue not amenable to resolution on a motion to dismiss pursuant to CPLR 3211(a)(7).”

Two points to see in this case.  First, a motion to dismiss for breach of no-fault contract requires that the pleader allege the person on whose behalf the contract is breached.  Second, the propriety of an EUO no-show defense is inappropriate on a motion to dismiss.


Judicial notice of the Supreme Court file

IMA Acupuncture, P.C. v Hertz Co., 2016 NY Slip Op 50258(U)(App. Term 2d Dept. 2016)

This res judicata decision is interesting because it tests the outer of bounds of Judicial Notice.

“In any event, this court may take judicial notice of undisputed court records and files, including the judgment in the Supreme Court declaratory judgment action (see Renelique v State-Wide Ins. Co., ___ Misc 3d ___, 2016 NY Slip Op 50096[U] App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2016]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). In light of the Supreme Court’s declaratory judgment, defendant’s cross motion to dismiss should have been granted under the doctrine of res judicata”

The Court uses the word “may”.  May requires a request in your papers?

Unpreserved argument

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 50133(U)(App. Term 2d Dept. 2016)

This is really a good argument.  But, it fell outside the Rybak boilerplate as to why a declaratory judgment order is not preclusive as to his client.  On appeal, unnamed appellate counsel tried to resuscitate an omitted meritorious argument.   Court said this:

“Plaintiff’s contention on appeal, in essence, that defendant was not in privity with Kemper, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]; Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]).”

Irony here.  I have an appeal where a meritorious argument was omitted from Rybak’s boilerplate and unnamed appellate counsel is not raising it on appeal.  I think we know the answer.

Unsettled order fails to dismiss Civil Court action

Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 2015 NY Slip Op 51886(U)(App. Term 2d Dept. 2015)

“Upon a review of the record, we find that since the March 2010 Supreme Court order in the declaratory judgment action merely granted the entry of a declaratory judgment, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the instant no-fault action”

You know the order stated: motion granted, settled judgment.  Nothing else was decreed.  Defendant failed to settle a judgment and this is the result.

Unitrin citing that hits upon the Longevity factors

Easy Care Acupuncture P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51524(U)(App. Term 1st Dept. 2015)

“Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1 [an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”]; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [an insurer is entitled to request IMEs “before . . . or after the claim form is submitted” (emphasis supplied)]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

In American Transit v. Longevity, we learned for the first time that 65-3.5(d) plays into the calculus of whether an IME letter is timely relative to the claim.  It would seem to me that scheduling IME’s prior to receipt of the claim forms would be the best way of complying with this regulation and avoiding a Longevity issue.  This regulation and 65-1.1 come into disharmony when the IME is scheduled more than 30-days after receipt of the billing,  The timing element of 3.5(d) takes second fiddle to the notion that “an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”

So be it.  Disharmony is what keeps the law fluid and most of us employed.

Staged accident not proven – very sloppy papers

This just goes to show the attention to detail that is necessary in order to prevail on summary judgment on a staged accident.

Nationwide Gen. Ins. Co. v Linwood Bates III, 2015 NY Slip Op 06122 (2d Dept. 2015)

(1) The plaintiff asserted that several defendants failed to attend their scheduled depositions, which was purportedly a breach of Bates’s insurance contract with the plaintiff. The plaintiff, however, failed to submit evidence from someone with personal knowledge of the mailings of the deposition requests

(2) ” In addition, the uncertified police accident reports submitted by the plaintiff were not admissible”

(3) “Further, the unsigned and unsworn deposition transcript of the defendant Miguel Ortiz was inadmissible”

(4) ” The plaintiff submitted an affidavit of its investigator, but the investigator relied, mostly, on inadmissible evidence, and lacked personal knowledge of the facts surrounding the three collisions.”

It just does not get worse than this.  The Court pretty much stated that some people have no business filing staged accident DJ actions.  I almost imagine that if counsel had immaculate papers, a different result would arise.

Trial De Novo not tenable

Avenue C Med., P.C. v Encompass Ins. of MA, 2015 NY Slip Op 06101 (2d Dept. 2015)

“The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo”

The common rule is that the last layer of review prior to filing a trial de novo must be more than $5,000.00  Thus, if a master arbitrator reduces or awards less than $5,000, then there is no right to file litigation.

Declaratory judgment reversed on appeal

Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 2015 NY Slip Op 05891 (1st Dept 2015)

“The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs We note that defendant has not submitted opposition to the instant appeal.

We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med. P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143 [A][App Term, 2d Dept 2013]); Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A] [App Term, 2d Dept 2014]).”

If you looked at the affidavits in this case, you would note that there are unexecuted affidavits of service relative to the EUO letters and a general attorney affirmation of mailing.  Probably threw the Court off.

Court apparently finds CPLR 3211(a)(4) sufficient to dismiss part of DJ

American Transit Ins. Co. v. Figueroa (Index #: 150603/14)(Sup Ct. NY CO. 2015)

The Supreme Court here appeared to be angered at a declaration judgment action.  Part of the motion that Defendant made was to dismiss based upon CPLR 3211(a)(4).  As we all know, American Transit v. Solorzano addressed this issue and found this basis of dismissal to be without merit.  Well, apparently another judge felt otherwise.

Was Solorzano even argued? You be the judge here.