You can't swear about things that happened at your job before you got there

South Nassau Orthopedic Surgery v Auto One Ins. Co., 2011 NY Slip Op 51300(U)(App. Term 2d Dept. 2011)

Where have we seen this before?

“Defendant did not raise a triable issue of fact in opposition to plaintiff’s motion or establish its entitlement to summary judgment on its cross motion. In her affidavit, defendant’s litigation manager stated that she had begun working for defendant after the claim denial forms at issue had allegedly been mailed by defendant. As defendant did not establish actual mailing of [*2]the claim denial forms or defendant’s standard office practice and procedure for the mailing of the claim denial forms during the pertinent time period, defendant failed to show that its claim denial forms were timely mailed”

Oh by the way, I am sure Plaintiff received the denial.  Yet, the difference between fact and fiction can sometimes be indistinguishable in this practice.


Mailing proof

Thibeault v Travelers Ins. Co., 37 A.D.3d 1000 (2d Dept. 2007)

“While it is true that an insured’s denial of receipt, standing alone, is insufficient to rebut the presumption (see id. at 829-830), here there is additional evidence that an omission in the address as stated on the Thibeaults’ policy application and used by defendant prevented delivery of the notice. There is no dispute that the address was incomplete, inasmuch as it left out the name of the Thibeaults’ business under which the post office box was registered. Because the Thibeaults submitted evidence that a mailing addressed solely to them, without the name of the business, would not be delivered to the post office box due to United States Postal Service practices, they succeeded in rebutting the presumption and raising a question of fact as to delivery of the notice”

Mailing turned on its head

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U)(App. Term 2d Dept. 2011)

“The affidavit of defendant’s litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The mere denial by plaintiff’s medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests.”

There is nothing I like reading more than when the Plaintiff cannot prove lack of receipt after a prima case of mailing has occurred.  It is vindication after the years of being trapped by the Contemporary precedent, which at the time was anything but contemporary – more or less antiquated.

DWI defense non-upheld: mailing, denials and affidavits gone awry

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (2d Dept. 2011)

If it could have gone wrong, it did.

“In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375).”

Venom from the First Department

Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 2010 NY Slip Op 20530 (App. Term 1st Dept. 2011)

I guess now starting to face the onslaught of appeals that it was shielded from in years past, the Appellate Term, First Department has shared some choice words with the no-fault bar.  One of the posters, I believe Sun, quoted the pertinent “observation” of the majority opinion at NFP.  I am not going to quote it here.  I would note that based upon the writing style, it appears that Justice Douglas McKeon authored that opinion.

What was nice is the reader, through an analysis of the majority and dissenting opinion, was given some details as to what the majority considered the bare minimum to establish the proper presumption of mailing.

The majority: “At trial, defendant presented the testimony of an experienced claims examiner, Jennifer Piccolo, who both personally prepared the initial and follow-up verification requests here at issue and possessed first-hand knowledge of defendant’s standard office mailing practice. The witness’s credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the work day, when it would “go out,” and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), “obviated the necessity of producing a witness with personal knowledge of the actual mailing” of defendant’s verification letters (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]). Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance.

By the way – I am putting the world on notice – if anyone cites to Contemp v. Geico on any papers that cross my desk, you are liable for Part 130 sanctions.  This is the written warning that the rules require.  If you make this argument, withdraw it.  If you want to make it, don’t.  If you practice no-fault, you will probably have crossed this blog so you are on notice.  Thank you.

The dissent (Schoenfeld, J.S.C.) is interesting, and illuminates what was missing from the witnesses’ testimony, yet in the eyes of the majority was sufficient to grant judgment to the defendant:

Q: Personal knowledge as in you observe them do their day to day job with respect to… receipt of mail returned?

A: No.

Q: Nor with any of their other responsibilities with respect to mailing, correct?

A: Correct.”

Justice Schoenfeld – who I had an interesting back and forth with at oral argument in A-Plus v. Mercury (as Plaintiff was counsel was probably smirking), seems to believe that the affiant or witness must observe, on some level, the day-to-day mailing activities.  Again, he is not advocating the “duty to ensure compliance” lingo.  But personal knowledge to him requires someone whose job title involves processing, sorting or observation of the mail procedures.

My observation – and it is only an observation – is that the majority is of the viewpoint that if the opponent of the “mailing” is not going to present evidence that the document was not received, then the Appellate Term does not want to hear it.  The Court seems to be telling us that Civil Court judges have better things to do than to pass on esoteric issues of mailing.  Again, this was just an interesting decision.

The Appellate Division weighs in on the mailing paradigm

People v Abelo,  2010 NY Slip Op 09567 (1st Dept. 2010).

“The evidence which gives rise to the trial error was the testimony of one Kimberly Shaw, a customer representative for the DMV, who was first employed in 2002. She testified to mailing procedures at DMV. Shaw testified that based on an abstract generated on November 23, 2005, defendant’s license had been suspended 57 times on 16 dates between 1983 and 1994 for unpaid tickets. Shaw testified that a driver’s license suspension is mailed to the address on file at the DMV, that such a mailing had occurred in December 1992, and that defendant’s license was suspended on January 4, 1993. The court admitted the 1992 notice of suspension. On cross-examination Shaw acknowledged that she did not work for DMV in 1992, and could not testify concerning standard mailing procedures during that year or those in place in 1993. She also acknowledged that procedures had changed. The court then refused to admit the 1993 suspension notices because Shaw was not familiar with the business practices in place at that time or earlier, but it refused to strike the already admitted 1992 notice.”

“The People here argue that, having produced Kimberly Shaw, they satisfied their obligation to produce a witness who was subject to cross-examination. While defendant acknowledges that it was clearly not necessary to produce someone who was employed at the time the notice was mailed, he argues that the People were obligated to produce someone who had at least familiarized herself with the procedures current at the time. Moreover, as defendant argues, the trial court’s refusal to admit the 1993 notices of suspension because Ms. Shaw was unfamiliar with the mailing practices in 1993 was inconsistent with admission of the 1992 notice of suspension. The witness made it clear that she was not familiar with the practice in either year.”

“A witness who on cross-examination denies knowing what procedures were used at the time of mailing does not satisfy the obligation to produce a witness who can be adequately cross-examined concerning notice to defendant. In essence, the notice of suspension was admitted without foundation, and under the facts of this case its admission constituted reversible error.”

I was employed with [BLANK] when the mailing activity occurred

Friendly Physician, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51770(U)(App. Term 2d Dept. 2010)

“Since the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish the actual mailing of the denial of claim forms or its standard office practices and procedures for the mailing of denial of claim forms [*2]during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed

There is no need to specify the particular date a denial was mailed on the affidavit

Point of Health Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51724(U)(App. Term 2d Dept. 2010)

Five bucks says I am going to see this argument again in one of the oppositions sitting on my desk.  Another five bucks says I will see it again next month…and the month after that…..etc.  I mean I still see Contemporary v. Geico cited as if it still represents good law.  So I digress.

Anyway, see below:

“The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that defendant had failed to specify the dates on which its denials were mailed.”

“Contrary to the conclusion of the Civil Court, the affidavit of defendant’s claims division employee was sufficient to establish that the relevant denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”

I applaud Geico because this rationale for denying summary judgment motions is one that comes up frequently, and is completely incorrect on the law.

Be careful what you ask for: Discovery by summary judgment motion

Elmont Open MRI & Diagnostic Radiology, PC v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 51588(U)(Dis. Ct. Nassau Co. 2010)

I would put this case in the “be careful what you ask for” category, because the insurance carrier got what it sought.  To briefly explain, the insurance carrier filed a summary judgment motion based upon the services lacking medical reasonableness in accordance with a peer review.  Plaintiff put in answering papers, bereft of an affidavit of merit.

District court ruled that the denial was timely mailed, but the submissions in support of the summary judgment motion were insufficient to prima facie establish a lack of medical necessity.  I will get to this point later.

Somebody filed a notice of trial, a demand for a trial de novo was somewhere filed, and now this matter is on for trial.  The insurance carrier seeks to have Plaintiff prove it mailed the claim forms, and to have Plaintiff lay a business record foundation for the admission of the bills into evidence.

At trial, District Court properly forced Plaintiff to lay a business record foundation for the admission of the claim forms into evidence, since Plaintiff never previously cross-moved for partial summary judgment and this issue was never adjudicated.  The District Court, however, properly found that the insurance carrier’s summary judgment motion rendered the mailing issue moot.  The fact is a summary judgment motion is the functional equivalent of a trial.  If an affidavit states a bill was received and was denied, then it is impossible for an insurance carrier to escape that element of a plaintiff’s prima facie case during a later proceeding, i.e., the trial.

But this brings me to the title of my post.  In a medical necessity case, an insurance carrier’s properly supported motion for summary judgment, includes the following: the denials, the affidavit of the claims representative indicating proof of receipt of the bill, the mailing of the denial, the IME or peer report and the underlying medical records.  This documentary evidence affords the medical provider or injured person all the discovery they need to proceed to trial, provided the summary judgment motion is properly defeated.  Furthermore, as seen above, this documentary evidence serves the exact function of verified interrogatories or an unanswered or admitted to Notice to Admit: admission of receipt of the bill and that the claim is overdue.

This now bring me to my last point.  Were the MRI’s referred and prescribed by the chiropractor?  If they were, then the case law seems to be that the medical reasonableness is determined through the shoes of the referring expert.  I discussed this issue in previous posts.  The point being that upholding the medical necessity based solely on Dr. Liguori’s medical records seems to be improper and an end around the chiropractor’s referral for the testing.  Also, were the reviewed documents provided for in the summary judgment motion?  If they were, then summary judgment should have been granted provided: the standard factual basis and medical rationale test was met and the said documents did not negate the peer review, i.e., Hillcrest MRI.

Perhaps this case should be appealed on the latter points?

Why don’t Defendant’s start to use the Notice to Admit to establish their Prima Facie? Am I missing something?

This was a comment from Jerry Maline, of Richard Lau’s office, State Farm’s in-house counsel.  This is a really astute comment, and got me thinking for a second.  Now, just follow me on this to see if my logic makes sense.

According to the Appellate Term, Second Department, Notices to Admit and Interrogatories cannot be used to establish a prima facie case.  This is because a party cannot admit the genuineness of another party’s documents, as well as use these devices to establish a complete prima facie case.  In practice, this translates to disallowing an insurance carrier to lay a business record foundation for a provider’s bills or an injured person’s bills.

The corollary to this rule is that a medical provider cannot lay a business record foundation for an insurance carrier’s denials.

In contrast to the above, we now have learned that at the Appellate Term, First Department, interrogatories and notices to admit may be used to satisfy a prima facie case, since the genuineness of the bills is not part of a provider’s prima facie case.

Now, in light of the Second Department’s  holding in Urban, viz, that a denial does not have to be “in evidence” in order to preserve the defense set forth on the denial, the only factual issue a denial presents is its timeliness.  We all know that denials, generally, are mailed on the date set forth on the denial or the next business day.  There are some variations out there, but that is the general industry standard.  In light of Central Nassau, it would seem that a provider could be charged with having sufficient knowledge to either admit or deny: 1) whether; and/or 2) when the provider received a denial.  Like anything else, this tactic will only work if the statements set forth on the Notice to Admit are properly drafted.

Since the only issue relating to an NF-10 at the Appellate Term, Second Department, involves the timeliness of the denial, it would seem to follow that a Notice to Admit can satisfy the underlying procedural issues, and allow the insurance carrier to go forward on its substantive defense.  Moreover, since an insurance carrier’s entire prima facie defense does not rest on the timeliness of a denial, it cannot be said that the Notice to Admit would go to the ultimate or heart of the disputed issue.  So, an insurance carrier can successfully use this device to demonstrate timely handling, in my opinion.

As for the Appellate Term, First Department, this is an open question.  Notwithstanding that Court’s holding that a Notice to Admit may itself satisfy a provider’s prima facie case, that court has never opined as to whether a denial must be in evidence, in order to preserve the defenses that are set forth on it.  I would imagine that the Appellate Term, First Department, would probably follow the Presbyterian v. Elrac rule and require that the denial be placed into evidence, before allowing a carrier to go forward on its substantive defenses.

In any event, the Appellate Term, First Department, at worst would only leave unresolved for trial the business record foundation issue involving the denial, besides the substantive defenses.  Admittedly, laying a business record foundation is a far easier burden than showing a document was timely mailed.

Thus, a properly drafted notice to admit should resolve the timeliness issue.  In the Second Department, this would resolve all issues involving the denial of claim form and allow the carrier to go forward on its substantive defense.  In the First Department, this would at a bare minimum eliminate the mailing issue, and possibly leave the business record issue open, as well as the underlying defense to the no-fault claim.