Some doors have swung open

Alleviation Med. Servs., P.C. v Hertz Co., 2017 NY Slip Op 50046(U)(App. Term 2d 2017)

(1) “In opposition, plaintiff did not proffer any proof, but merely speculated, in an affirmation of counsel, that defendant might have learned of the accident in another timely manner prior to its receipt of the untimely written notice. In support of its opposition, plaintiff cited 11 NYCRR 65-3.4 (a) but failed to demonstrate how this regulation would warrant a different result. Furthermore, despite plaintiff’s having been informed, in the denial of claim form, that it could provide reasonable justification for its failure to provide timely written notice (see 11 NYCRR [*2]65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity to do so.”

(2) “Plaintiff argues that its NF-3 form, which was for services rendered on September 15, 2011, and which defendant admitted to having received on October 5, 2011, constituted timely written notice of the July 31, 2011 accident at issue. However, since plaintiff’s NF-3 form was not submitted within the 30-day time period following the accident, it was untimely in any event, and we need not pass upon the question of whether the submission of an NF-3 form is sufficient to satisfy the 30-day written notice requirement of 11 NYCRR 65-2.4 (b).

This raises an interesting question.  First, the case presents the issue of contesting the disclaimer during the claims stage.  Again, a party who waits until litigation to establish a reasonable excuse in opposition to a 30-day denial will swiftly find the courthouse doors to close behind him or her.

Second, can an NF-3 be the document that places an insurance carrier on notice of a motor vehicle accident?  A police report stating there are injuries on it will serve as notice.  An NF-5 will serve as notice.  But a properly completed NF-3?  The court found the issue worth a look on a better record,

 

 

The prejudice rule in action

Castillo v Prince Plaza, LLC, 2016 NY Slip Op 06191 (2d Dept. 2016)

Nothing in the world of coverage is more exciting than the application of the prejudice rule regarding the failure to give timely notice of an event or occurrence.  So little has been written about it.

(1): The default judgment and irrebutable presumption of prejudice

In this case, a default judgment was obtained prior to notice being given.   As such: ” Insurance Law § 3420(c)(2)(B) provides, in pertinent part, that “an irrebuttable presumption of prejudice shall apply if, prior to notice, the insured’s liability has been determined by a court of competent jurisdiction or by binding arbitration; or if the insured has resolved the claim or suit by settlement or other compromise.”

Having found coverage after entry of the default,  Plaintiff vacated the default and allowed an answer to be interposed.  Defendant still argued that the irrebutable presumotion of prejudice should apply.  The Court said no (which is interesting) and held as follows:

“Here, contrary to Century’s contention, based on the plain language of Insurance Law § 3420(c)(2)(B), an irrebuttable presumption of prejudice did not apply in this case. Although a default judgment was previously entered in the main action against Prince Plaza, the default judgment was vacated more than a year before Century raised Insurance Law § 3420(c)(2)(B) as a ground upon which it was not obligated to defend and indemnify Prince Plaza. Thus, the Supreme Court correctly determined that Prince Plaza’s liability had not actually been “determined” by a “court of competent jurisdiction or by binding arbitration” (Insurance Law § 3420[c][2][B]; cf. Matter of Sportsfield Specialities, Inc. v Twin City Fire Ins. Co., 45 Misc 3d 1201[A], 2012 NY Slip Op 52509[U] [Sup Ct, Delaware County 2012]). The plain intent and purpose of Insurance Law § 3420(c)(2)(B), which is to prevent insurers which have continuously collected premiums to disclaim coverage based upon an inconsequential technicality, would be defeated if Century were allowed to disclaim coverage under the circumstances herein (see Insurance Law § 3420[c][2][B], New York Bill Jacket, 2008 SB 8610, ch 388).”

(2) Timely Notice

However, Prince Plaza was unaware of the accident because it was not present at the site and it was not informed of the accident by its general contractor or the injured plaintiff. The summons and complaint in the main action were served on Prince Plaza through the Secretary of State on or about August 26, 2011, but because Prince Plaza had failed to notify the Secretary of State of its new address, it did not receive a copy of the summons and complaint and did not initially appear in the main action. Thus, in the January order, the Supreme Court granted the plaintiffs’ motion for leave to enter a default judgment against Prince Plaza, which later received a copy of the January order on February 24, 2012. Upon receipt of the January order, Prince Plaza promptly notified Century of the accident and lawsuit, and this notice was received by Century on March 2, 2012.

MVAIC created issue of fact

VS Care Acupuncture, PC v MVAIC, 2016 NY Slip Op 50764(U)(App. Term 1st Dept. 2016)

“Our review of the record indicates that defendant failed to eliminate all triable issues with respect to whether plaintiff’s assignor filed a notice of intention to make a claim, since its own proof contains conflicting evidence (see Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]), specifically, a letter it sent to the assignor stating “we are in receipt of the Notice of Intention to Make Claim”

If the condition precedent to coverage is proof that the Assignor did not send a proper notice of claim, then why would a defendant introduce into their submissions  a notice of intention to make a claim, unless bolstered with evidence that it was untimely or unreasonable?  And to appeal the adverse decision just did not seem wise.

Written proof of loss is when it is mailed

Compas Med., P.C. v Fiduciary Ins. Co. of Am., 2016 NY Slip Op 26062 (App. Term 2d Dept. 2016)

“Defendant cross-moved for summary judgment, arguing that one ground upon which it had timely denied plaintiff’s claims was that no one on plaintiff’s behalf had complied with 11 NYCRR 65-1.1, which states that written notice of an accident must be “given” to the insurer “as soon as reasonably practicable, but in no event more than 30 days after the date of the accident” (11 NYCRR 65-1.1; see also Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [a claimant “must submit a notice of claim to the insurer as soon as reasonably practicable, but no later than 30 days after the accident”]). The affidavit of defendant’s no-fault claims manager, submitted in support of defendant’s cross motion, stated that defendant had first learned of the October 14, 2010 accident when it received an NF-2 form on November 15, 2010, thereby demonstrating that defendant had not received written notice of the accident within 30 days after it had occurred.

Plaintiff argues that mailing written notice of the accident to the insurer on or before the 30th day after the accident will satisfy the 30-day notice requirement of 11 NYCRR 65-1.1. We [*2]agree.

We note that 11 NYCRR 65-1.1 does not define what it means for a written notice to be “given,” and the Court of Appeals did not elaborate when it stated that a claimant must “submit” a notice of claim (Hospital for Joint Diseases, 9 NY3d at 317). However, 11 NYCRR 65-3.4 requires no-fault insurers to “forward to the applicant the prescribed application for motor vehicle no-fault benefits (NYS Form [NF-2]) accompanied by the prescribed cover letter (NYS Form [NF-1]),” and the prescribed cover letter included in Appendix 13 to Regulation 68 states that the NF-2 application for No-Fault Benefits (which satisfies the written notice requirement [see 11 NYCRR 65-3.3 (d)]) “must be sent to [the insurer] within 30 days of the accident date if your original notice to [the insurer] was not in writing.

We hold that mailing the written notice of claim to the insurer within 30 days of the accident satisfies the requirement that written notice be “sent” to the insurer, as instructed by the prescribed cover letter, and that written notice be “given” to the insurer, as required by 11 NYCRR 65-1.1.

Here, defendant did not demonstrate, prima facie, that timely written notice of the accident had not been mailed to it. Rather, the 30th day after the accident fell on a Saturday, November 13, 2010, making Monday, November 15, 2010, the date on which defendant alleges it first received an NF-2 form, the last date by which written notice of the accident could be timely mailed (see General Construction Law §§ 25, 25-a; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]; see also General Construction Law § 20 [providing, in pertinent part, that “[t]he day from which any specified period of time is reckoned shall be excluded in making the reckoning”]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.”

Chutzpah

Great Health Care Chiropractic, P.C. v Elrac, Inc., 2015 NY Slip Op 51223(U)(App. Term 2d Dept. 2015)

(1) “Defendant alleged in its cross motion that it had first received notice of the accident on July 7, 2010 from plaintiff’s assignor’s attorney, and that this was more than 30 days after the date of the accident, which had occurred on June 6, 2010. In opposition to defendant’s cross motion, plaintiff submitted an affidavit by Jean Claude Compas, who stated that he had personally timely mailed, by certified mail, an NF-2 application for no-fault benefits together with a notice of injury to defendant on July 6, 2010. He alleged, with regard to mailing, that he personally takes all envelopes in the office to the post office and presents them to the clerk to be weighed and to determine the correct postage, and that he purchases the postage at that point. Plaintiff also submitted a “Track & Confirm” search result indicating that the envelope had been delivered to defendant, but did not submit the certified mail receipt indicating the date on which the envelope had been brought to the post office

(2) “in further support of its cross motion, defendant submitted a photocopy of the envelope bearing a certified mail number which matches the certified mail number alleged by Dr. Compas to be the certified mail number under which the NF-2 and notice of injury had been mailed. Both the postage and the postmark are dated July 7, 2010.”

(3)  “In its brief, plaintiff concedes “the fact that the envelope was postmarked by the Post Office on July 7,” but argues that it was mailed on July 6, 2010. However, this is not a case where a mailing was timely because the envelope was timely dropped into a mail box, even though it was not delivered to the post office and postmarked until a date beyond the prescribed time period (seeCPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Rather, plaintiff’s own affidavit establishes that the NF-2 and notice of injury were delivered directly to a clerk at the post office for postage and mailing. Both the postage and the postmark are dated July 7, 2010, conclusively establishing that the documents were not mailed until that date. Therefore, they were not submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b).”

You see, they read the briefs.  Plaintiff should have written in his brief: “I know I have a problem but I do not have the courage to admit this is a loser and I should away”.  At least on this case (unlike the verification non-receipt cases), the court had the courage to call out chicanery.

Unitrin is now followed in the Fourth Department

Interboro Ins. Co. v Tahir, 2015 NY Slip Op 05378 (4th Dept. 2015)

LAW OFFICE OF JASON TENENBAUM, P.C., GARDEN CITY (JASON TENENBAUM OF COUNSEL), FOR PLAINTIFF-APPELLANT.

“Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.”

Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726).

An oral notice of claim is deemed sufficient notice?

Sky Med. Supply Inc. v Elrac Inc., 2014 NY Slip Op 24232 (Civ. Ct. Kings Co. 2014)

Court held that oral notification of claim was sufficient and seems to obviate the need the need to provide written notice of claim.  Therefore, the carrier loses.  I am not going to parse the decision because it is convoluted how it is written.

My first thought is why is a case like this going to “trial”?  My second thought is wouldn’t the better line of reasoning be that the denial was valid since there was not timely written notice of claim; however, the plaintiff can still prevail if they can satisfy as Judge Ciaffa called it in Medical Select v. Allstate (another case that should never have went to trial) the safety valve provision of the regulations regarding late notice?

Now, since you are at trial, wouldn’t the provider have to prove the applicability and reasonableness of the so-called safety valve through producing the assignor at “trial” to testify as to why he/she did not file a timely notice of claim?

The decision seems backwards to me.

A 30-day notice case that went to trial

Medical Select, P.C. v Allstate Ins. Co., 2013 NY Slip Op 23446 (District Ct. Nassau Co. 2013)

“According to the proof adduced at trial, Allstate initially received notice of the accident from its insured within one week of the accident date. It was apparently advised, at that time, that three other individuals (plaintiff’s assignors) had been injured in the accident.”

“Following receipt of the signed NF-2’s, Allstate took no immediate steps to advise plaintiff’s assignors that their NF-2’s had been submitted too late, nor did it advise them that a late submission could be excused. Instead, it was not until Allstate began receiving assigned claims from the plaintiff provider that it first asserted, in its timely denials of the provider’s claims, that it was refusing to pay for necessary treatments due to the assignors’ failure to give written notice to defendant within 30 days of the accident.”

“Each of the denials includes the following explanation: “Claim denied for failure to comply with written notice requirement. Notice must be given as soon as reasonably practicable, but in no event more than 30 days after the accident date, unless the eligible injured person submits written proof providing clear and reasonable justification for failure to comply with such time limitation…” Using almost identical language, the denials added: “reasonable justification not proven, for proof of claim. [T]herefore claim is denied.”

..

“Unlike the circumstances presented in SZ Med. PC v County-Wide Ins. Co., the insurer’s denials include language which partially tracks the language of 11 NYCRR 65-3.3(e). However, on balance, the Court concludes that the language employed fails to substantially satisfy the requirements of this section. At the very least, a valid denial must include some language indicating that the claimant “may submit additional information (such as justification for delay) and that reconsideration is possible.Hempstead Pain & Med. Servs., PC v General Assur. Co., supra. The denials, here, fail to do so.”

“Instead of containing the required advisory, the denials simply present a fait accompli conclusion that “reasonable justification” was “not proven.” Although plaintiff’s assignors were copied on the denials, they were never specifically advised, in the denials or otherwise, that they could or should submit additional information explaining why the NF-2 forms were submitted more than 30 days after the accident.”

“In the case at bar, such “explicit notice” is lacking. Moreover, defendant’s trial proof did not demonstrate that it had established “standards for review” of late claims, or that it had established “procedures, based upon objective criteria, to ensure due consideration of denial of claims based upon late notice or late submission of proof of claim … (11 NYCRR 65-3.5[l]).”

___________________

This case absolutely begs the question: why didn’t Allstate move for summary judgment?  First, the “prefatory language” part of the opinion would have been controlled in a pro-forma affidavit that on balance would have made a better record on appeal.  And make no mistake, the failure of the Assignor or the medical provider to seek reconsideration pre-suit renders this opinion wrong on the law.  The recent precedent suggests that to be the case,  In addition, 65-3.5(l) does not form a basis for evaluating these types of case, in accordance with the most recent pronouncements on the 30-day rule.

But to appeal these cases in the trial postulate, where uncontrolled testimony or “trial stips” can muddy the record is a dangerous game to play.

Claimant’s meritorious defense on 30-day notice DJ was insufficient to stave off SJ

American Transit v. Mercedes., Index #: 152414/13 (Sup. NY Co. 2013)

This one is notable because the Assignor’s meritoious defense in opposition to the motion for leave to enter a default was that she was not at fault for the accident.  The Judge was not too impressed.

Failure to timely submit written notice of loss: DJ granted over vigorous opposition

American Transit v. Owusa, Index #: 307454 (Sup. Ct. Bronx Co. 2013)(Barone, J.)

This was my 300th Unitrin type DJ victory and this as a nice one.  The Court, over vigorous opposition, granted our 30-day failure to give written notice of accident case.  Here’s to another 300 DJ victories.  I think we have probably cut down a few forests and put quite a few thousand of dollars into the government treasury and to the USPS during this whole process.