Island Life Chiropractic, P.C. v Country Wide Ins. Co., 2016 NY Slip Op 51378(U)(App. Term 2d Dept. 2016)
“While the affidavit of defendant’s no-fault litigation supervisor described defendant’s mailing practices and procedures with respect to claims processing, it did not describe the process involved where other correspondence, such as a notice of cancellation, is mailed. As a result, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in order to effectuate the cancellation (see generally Vehicle and Traffic Law § 313; Banking Law § 576).”
The affidavit needed to extend the process to notices of cancellation (in addition to form NF-10)
I am unsure what has changed at Allstate but there seems to be an issue proving anything is timely, properly or even close to mailed
Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51377(U)(App. Term 2d Dept. 2016)
Synergy First Med., P.L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51365(U)(App. Term 2d Dept. 2016)
K.O. Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 51367(U)(App. Term 2d Dept. 2016)
Ultimate Health Prods., Inc. v Allstate Ins. Co.. 2016 NY Slip Op 51353(U)(App. Term 2d Dept. 2016)
New Quality Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 50871(U)(App. Term 2d Dept. 2016)
Defendant’s contention that its cross motion for summary judgment should have been granted due to plaintiff’s failure to appear for duly scheduled EUOs lacks merit, as the Civil Court correctly found that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Since defendant failed to raise a triable issue of fact as to whether it had timely denied plaintiff’s claims (see 11 NYCRR 65-3.8 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 ), defendant’s contention that its papers were sufficient, at least, to raise a triable issue of fact as to whether plaintiff had failed to appear for the scheduled EUOs is irrelevant.
I have heard about the split in the courts regarding the Allstate mailing affidavit. Does this represent that?
Great Health Care Chiropractic, P.C. v Maya Assur. Co., 2016 NY Slip Op 50308(U)(App. Term 2d Dept 2016)
Gl Acupuncture, P.C. v Maya Assur. Co., 2016 NY Slip Op 50310(U)(App. Term 2d Dept. 2016)
Atlantic Radiology, P.C. v Maya Assur. Co., 2016 NY Slip Op 50316(U)(App. Term 2d Dept. 2016)
“Although the claims adjuster stated that, in May 2012, she had personally generated the denial of claim form and placed it in an envelope, affixed proper postage and placed the envelope in an outgoing mailbox, she also stated that she began working for defendant as a claims adjuster in July 2012. Consequently, her affidavit was of no probative value (see Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”
AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 00916 (2d Dept. 2016)
The reason I appealed
“Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.”
Triable issue of fact – medical necessity
The medical necessity issue (first tine the Appellate Division, Second Department actually dealt with a Pan Chiro issue)
“Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists]).
However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Lenox Hill Radiology & Mia, P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept]).
Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”
Partial summary judgment
“[f]urther proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”
I do not think I should have had costs awarded against me. I accomplished what needed to get done.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co., 2015 NY Slip Op 51625(U)(App. Term 2d Dept. 2015)
“In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant’s standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant’s motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff”
Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 2015 NY Slip Op 50565(U)
(1) “We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims”
(2) “The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure”
It is always interesting watching the “mailing v. non-receipt” battles.
Healthy Way Acupuncture, P.C. v One Beacon Ins. Co., 2015 NY Slip Op 50537(U)(App. Term 1st Dept. 2015)
This time, the Court does not focus so much on the jural relationship between the parties, but the court is focusing on when the person commenced employment with the entity at issue.
“The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 ), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant”
MML Med. Care, P.C. v Praetorian Ins. Co., 2014 NY Slip Op 51792(U)(App. Term 2d Dept. 2014)
“While the Civil Court held that the tracking numbers associated with the copies of the letters which had been sent by certified mail, return receipt requested, reflected that these copies of the EUO scheduling letters had apparently not been delivered to the assignor, such a fact, even if true, would not excuse the failure of plaintiff’s assignor to appear for the duly scheduled EUOs since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff’s assignor by first class mail had been insufficient.”
This case goes one step further beyond the argument that mailing the document via certified mail requires proof that the Claimant received the correspondence, despite the fact that there is proof that the mailing was done through first class mail. Rather, this case now says that proof of first class mailing is sufficient, even in the face of affirmative proof that certified mailing was mailed.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 2014 NY Slip Op 51766(U)(App. Term 1st Dept. 2014)
(1) The joy of mailing vendors
“In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 ), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery”
(2) On medical necessity
“Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate all triable issues regarding the medical necessity of continued acupuncture treatment.”
This one is interesting because the Court has finally held that an objective medical explanation is necessary to support a medical necessity defense or, contrariwise, prove that there is a medical rationale for further treatment in opposition to an insurance carrier’s examination.