The six year statute of limitations period commences 30-days from receipt of the claim form

New Millenium Med. Supply v Clarendon Natl. Ins. Co., 2010 NY Slip Op 51820(U)(2d Dept. 2010)

“no-fault [action]…pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations  since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the claim — not the date of defendant’s untimely denial of the claim.”

It is nice to see the SOL rule clearly articulated, as the Appellate Term, First Department did in this case.  What I found interesting is the case Plaintiff argued in support of maintaining his tardy cause of action: Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]).  Admittedly, I was not intricately familiar with Taggart.  I probably came across it at one point, but not recently.  Here is the pertinent part of Taggart: “[d]efendant, pursuant to 11 NYCRR 65.15 (g) (2) (ii), sent plaintiff a denial of claim form, dated July 13, 1990, notifying her that her no-fault medical benefits were to be discontinued in light of medical examinations indicating that she was no longer disabled. From the date of the denial of claim, plaintiff had six years to challenge the denial as a breach of defendant’s agreement to pay her no-fault benefits and may not have the applicable statutory period extended until her commencement of this action in 1998 simply because she continued to submit bills for payment subsequent to her receipt of the July 13, 1990 denial notice.”

Taggart actually protects the insurance carrier who sends a global denial to the injured person, in that that the SOL commences upon receipt of the global denial, provided subsequent bills are not submitted (see below).  It also appears that the regulations as the courts have construed them strongly suggest that a carrier issue this type of denial based upon a physical examination terminating further benefits.

But Taggart probably is not good law because of the work of some attorney who prevailed in A&S Medical v. Allstate.  Simply put, the Appellate Division held in A&S that a claimant who continues to send bills to the insurance carrier following a negative physical examination has the statutory right (Ins. Law 5106[a]) to have that bill paid or denied within 30-days of the insurance carrier’s receipt of that bill, notwithstanding the prior denial terminating all subsequent benefits due to a physical examination.

Thus, the statute of limitations would actually commence upon the latter of 30-days following receipt of the bill or the date of the global denial, should subsequent bills not be submitted following the global denial.

Taggart might still be good law in the lost wage scenario.

For the record, I think the plaintiffs should either have “Domotor” or “A&S”.  They should not have it both ways.  To the extent I keep seeing the words “contract of insurance” next to the words “no-fault” in these court cases, I have to believe that A&S was improperly decided.

A short and sweet primer on how to save a case that has been brought outside the applicable statute of limitations

Last v Guardian Life Ins. Co. of Am., 2010 NY Slip Op 03416 (2d Dept. 2010)

“[t]he plaintiff, whose causes of action were asserted in a untimely filed complaint, as opposed to in an amendment to a timely filed complaint, in an intervenor’s complaint in a timely commenced action (see CPLR 1013), or in an untimely commenced action that could be consolidated with a timely commenced action (see CPLR 602; cf. DeLuca v Baybridge at Bayside Condominium I, 5 AD3d 533, 535), failed to demonstrate the applicability of the relation-back doctrine (see Buran v Coupal, 87 NY2d 173, 177-178; Mondello v New York Blood Ctr.-Greater N.Y. Blood Program, 80 NY2d 219, 226; Duffy v Horton Mem. Hosp., 66 NY2d 473, 476-478; Caffaro v Trayna, 35 NY2d 245, 249-250; CPLR 203[b], [f]). Accordingly, the Supreme Court should have granted the defendant’s cross motion for summary judgment dismissing the complaint as time-barred.”

This is how you save an action that is barred by the statute of limitations.  Find a pending case that was timely commenced, and piggyback off of it.

A second pre-answer motion to dismiss is alright if it is the first one to be decided on its merits

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 52598(U)(App. Term 2d Dept. 2009)

“On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e)”

By the way, I was Respondent on this case.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e)

Six year SOL

Spring World Acupuncture, P.C. v NYC Tr. Auth.
2009 NY Slip Op 29229 (App. Term 2d Dept. 2009)

Finally, someone convinced the Appellate Term that no-fault actions created by statute have a six year SOL. The lead case on this one, Elrac v. Suero, clearly held that a first-party action, created by statute but contractual in nature from the eyes of the injured person should trigger the 6 year SOL that pertains to contractual actions.

Whether or not one agrees with Suero, it is binding precedent. But until the Appellate Division or the Court of Appeals says otherwise, this is the law.

What seemed bizarre in the three years since Suero was that the Appellate Term, in actions against MVAIC, routinely held that the SOL was three years, based upon the portion of the CPLR which states that actions pursuant to a statute have a 3-year SOL. Yet, if a self-insured entity that is forced to provide first-party benefits by statute is bound by the contractual 6-year SOL, why should MVAIC be any different?

Good job to the Plaintiff’s attorneys on this one.