Hertz Vehicles, LLC v Best Touch PT, P.C.,2018 NY Slip Op 04854 (1st Dept. 2018)
(1) “Plaintiff failed to meet its burden of filing “proof of the facts constituting the claim” for a default declaratory judgment (CPLR 3215[f]) against the medical provider defendants, i.e., proof establishing that the notices of examination under oath (EUO) that it served on those defendants complied with the timeliness requirements of 11 NYCRR 65-3.5(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; Natl. Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). An insurer must request any “additional verification . . . to establish proof of claim” within 15 business days after receiving the “prescribed verification forms” it forwarded to the parties required to complete them (11 NYCRR 65-3.5[a], [b]). As none of the motion papers, including the affidavit by plaintiff’s claims adjuster, annexes or gives the dates of the prescribed verification forms or other proofs of claim submitted by the medical provider defendants, it is not possible to determine whether the EUO notices were sent to them within 15 business days of plaintiff’s receipt of the form”
What was interesting is in the last appeal of a lost DJ, the Court appeared to walk around 65-3.5 and 65-3.6 when the issue involved a default. The rationale could be found in the dissent of Longevity and sub silentio set forth in the majority opinion in the same. This case now applies the summary judgment standard to defaults.
(2) “Plaintiff’s argument on appeal that the providers’ bills are “prescribed verification forms” and its attempt to relate the deadlines applicable to one defendant’s EUO requests to another defendant’s submission of claims documentation or appearance for an EUO are unpreserved and, in any event, unsupported.”
Certain defense attorneys have tried to use the bootstrap method to establish timeliness. I never bought it.
(3) “The court erred in denying plaintiff’s motion for a default judgment against Bellevue on the ground that the motion did not contain any letter reflecting that Bellevue’s EUO transcript was sent to her for signature. The motion does contain such a letter, dated March 14, 2016, as well as a follow-up letter, dated April 20, 2016, and accompanying affidavits of service. As the [*2]failure to submit to an EUO and “subscribe the same” violates a condition precedent to coverage (see 11 NYCRR 65-2.4[c]), plaintiff provided adequate proof of its claims against Bellevue (see DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op. 32467[U], *5-6 [Sup Ct, NY County 2011]”
This should worry anyone because I highly doubt that DFS (absent a Thrasher showing) ever advocated for a voiding of the policy due to the failure to sign a transcript. I see a circular letter coming on this issue, similar to when DFS issued a circular letter to overturn Soundshore.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2018 NY Slip Op 50864(U)(App. Term 2d Dept. 2018)
“Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [*2]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.”
The unanswered question is assuming that the provider sets forth valid reasons for not attending the EUO and a disclaimer is issued, what is the remedy? Does the insurance carrier always prevail? Or, is the disclaimer without prejudice to compelling the entity to appear for an EUO? I think the new Fourth Department case of Progressive v. Elite and the older Second Department case of Park v. Long Island call into question the remedy for this discreet type of breach. But that is a discussion for another day.
Parisien v Maya Assur. Co., 2018 NY Slip Op 50771(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling examinations under oath (EUOs) had been properly addressed and mailed”
Parisien v Maya Assur. Co., 2018 NY Slip Op 50766(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”
Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2018 NY Slip Op 50775(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed ”
Mind & Body Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50779(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed””
Remedial Med. Care, P.C. v Park Ins. Co., 2018 NY Slip Op 50769(U)(App. Term 2d Dept. 2018)
“With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed”
Active Care Med. Supply Corp. v Metlife Auto & Home, 2018 NY Slip Op 50772(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at an initial and follow-up EUO “
Healthway Med. Care, P.C. v American Commerce Ins. Co., 2018 NY Slip Op 50733(U)(App. Term 2d Dept. 2018)
“However, plaintiff correctly argues on appeal that defendant failed to demonstrate that it [*2]was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims”
No matter how many times you try to appeal the same issue of law, the same result happens. Yet, under First Department precedent (Unitrin v. All of NY), the failure to mail the EUO letter within 15-calendar days of receipt of the bill is fatal.
Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)
In the approximately 10 years, since Unitrin brought the notion of the condition precedent DJ. And now, 9 years later, it has almost been destroyed on a less than stellar record. You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).
“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”
Two problems here. First this was a provider EUO. The record discloses, establishes and discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs. Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO). I don’t get it. the EUO process started before the received billing. Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.
Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days? I sense that discussion did not occur.
Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).”
It is like anything else – some cases need to settle. This was one of them – watch the argument and you will see what I mean. Luckily, Manoo settled or the First Department DJ as we know it would probably be dead. That was a complete disaster in motion.
I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.
Many issues here will await another fully contested appeal.
Hertz Vehs. LLC v Significant Care, PT, P.C., 2018 NY Slip Op 00456 (1st Dept. 2018)
The affidavit of the Hertz claims handler personally assigned to this claim, as corroborated by the NF-10 denial of claim form (Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC, 47 AD3d 549, 549 [1st Dept 2008]; see also American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015]), stated that the date Pavlova’s bill was received by the insurer was July 18, 2014. Hertz therefore established its compliance with 11 NYCRR 65-3.5(b) by generating the first EUO scheduling letter within 15 days of receipt of the provider’s bill, and compliance with 11 NYCRR 65-3.6(b), by generating the second EUO scheduling letter less than 10 days after the first nonappearance on August 7, 2014.
Hertz also established proof of mailing because it included an affidavit of service, which was executed by the person who mailed the EUO notices and who attested that each was mailed by regular mail to the address provided on the claimant’s claim form, as well as to claimant’s attorney, in a “postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York” (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]; see also Deluca v Smith, 146 AD3d 732, 732 [1st Dept 2017]).
Pavlova’s argument, raised for the first time on appeal, that the second EUO nonappearance date was not a non-appearance because the claimant’s counsel was present, and because there was a statement on the record which not only acknowledged claimant’s nonappearance, but also agreed to reschedule the EUO, is unpreserved and unavailing.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co., 2017 NY Slip Op 50939(U)(App. Term 2d Dept. 2018)
I think I failed to specifically comment on this case. In light of Atlantic Radiology, we now have a difference of opinion between the courts.
Recover Med. Servs., P.C. v Ameriprise Ins. Co., 2017 NY Slip Op 51892(U)(App. Term 2d Dept. 2017)
Upon review of my blog, I failed to note this case.
Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51764(U)(App. Term 2d Dept. 2017)
“While plaintiff’s owner asserts that, upon receiving the EUO scheduling letters, he called defendant’s investigator and left a message asking to reschedule the EUOs, plaintiff nevertheless failed to raise a triable issue of fact, since the person plaintiff’s owner allegedly called was not the investigator identified in defendant’s EUO scheduling letter as the person to be called in case of any issue, and the phone number allegedly called was not the same as the phone number set forth in defendant’s EUO scheduling letter.”
Had the affidavit listed the person who should have been called, then a triable issue of fact would have been established?