Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U)(App. Term 2d Dept. 2010)
“Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).
Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.”
In St. Vincent Medical, P.C. v. Mercury (App. Term 2d Dept. 2009) and NY&P v. Elrac Inc.(2d Dept. 2004), it was held that the denials constituted business records despite the objections of the respective plaintiffs. Also, Dan Medical holds that a bill has to be placed into evidence to satisfy a provider’s prima facie case. So, I am confused by this one.
CORRECTION – See, St. Vincent Medical Care, P.C. v. Mercury Cas. Co. 23 Misc.3d 135(A)(App. Term 2d Dept. 2009)(“The affidavit of defendant’s claim representative set forth the affiant’s personal knowledge of defendant’s business practices and procedures, so as to lay a foundation for the admission of the documents annexed to the affidavit as business records (see CPLR 4518; Dan Med., P.C. v New York Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2007]”).
The second case I cited above should be: Hospital for Joint Diseases v. Elrac, Inc. 11 A.D.3d 43 (2d Dept. 2004)(“We expressly reject the argument of NY & P Hospital that the affidavit of a claims representative based on records maintained by an insurer in the ordinary course of business did not constitute admissible evidence sufficient to establish a valid defense (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]). Personal knowledge of such documents, their history, or specific content are not necessarily required of a document custodian (see DeLeon v Port Auth. of N.Y. & N.J., supra”)
There is another case: Montefiore Medical Center v. Liberty Mut. Ins. Co. 31 A.D.3d 724 (2d Dept. 2006)(“Contrary to the contention of the plaintiff Montefiore Medical Center, the affidavit of the defendant’s claims representative based on records maintained by the insurer in the ordinary course of business was sufficient to establish the defense (see Hospital for Joint Diseases v. ELRAC, 11 A.D.3d 432, 433, 783 N.Y.S.2d 612). Similarly, the documents submitted on the cross motion demonstrate that the insurer effectively canceled the policy (see Hughson v. National Grange Mut. Ins. Co., 110 A.D.2d 1072, 488 N.Y.S.2d 930″).
12 Responses
Just blatantly stupid. Just moronic. So idiotic.
The denial of claim form is being submitted to say the words contained in the denial of claim form — the very words that comprise the title. “Claim denied.” [“… that the claims were denied”]
So it is being offered for the truth of the matter asserted. That the insurer denied the claim. [this is not a verbal act exception — like “I accept.”] There is a bit more complexity involved — see infra.
How in God’s name does a denial of claim form prove that the form was mailed. If there is an affidavit that says that denial of claim forms are mailed the day they are dated, or the day after, then the denial of claim form is still used for the truth of the matter asserted.
The date on the denial is the truth of the matter asserted. That date was written by someone and constitutes an out of court statement made for the truth of the matter asserted.
Again the denial says “claim denied.” That’s hearsay. Someone wrote or typed your “claim is denied.” That is an out of court statement made for the truth of the matter asserted. Mailing does not constitute a hearsay exception.
Furthermore it is hornbook law that a denial must state the grounds for the denial with detail and specificity. [“lack of medical necessity”] Hearsay. So just the mailing of the denial without the contents in evidence constitutes an invalid denial.
So you can’t just send a denial that says “denied” even if the word “denied” was a hearsay exception.
No a D.J. is not a panacea for all that ails me. Skipping over a certain court to a real court is.
If Richardson came back and read this kind of nonsense he would never stop throwing up.
Ray,
I think another trip to Federal Court might be the elixir that the doctor ordered.
Hi JT, “confused” is a good word re Quality Health. A better one would be “irreconcilable.”
Sun,
I can say a lot on this issue, but I am not going to offer anything more, substantively, than what I said. My answer to Quality and Dan Medical and its progeny has always been that people need to read what they denominate a “brief”. The saying goes – “garbage in, garbage out.”
J.T. I do quite well there now. You scan things, file them electronically and write letters asking for permission to do things that you must do — like a 12(b)(6) motion. But I appreciate the humor so let me say this:
Maybe one day a case will last long enough for one of these white shoe no fault firms to actually try it against me. I hope a few times. Maybe once against you.
J.T. these are not your 25k policies or 200 dollar no fault bills. There’s pressure. You have to do crosses. Your witness gets crossed. See how a sting cite works on a jury during summation. Stuttering and spitting as you speak are no good. You have to project confidence … not arrogance. The audience may be hostile — not your no fault hating buddies. Also there may counter claims. If you lose your firm loses the client. Sleep well.
Figuratively speaking I think lawyers from a lot of these white shoe no fault firms are going to get to see their own beating hearts as they are ripped from their wimpy chests. I think by the time I am done some of them will have to reduce their rates to the point where they operate out of the second floor of a bait shop.
JT, if you have some scoop in support of your innuendo, plz advise as I want to know whose ass to kick.
Sun,
I have lots of those scanned in my computer. I think you know the answer to your own question. Key cite: 2009 N.Y. Slip Op. 51495(U).
Yes, I know about that case, not one of our cases, of course. Will prove slightly helpful for you in our upcoming battle, point taken.
Sun,
Yes, i know you are not responsible for that and every other adverse medical necessity case that has crept out of the AT2d. Your point is taken, and your frustration is quite understandable. You unfortunately have to live with the low lying fruit on your side who believed that nobody would seriously challenge their garbage papers up the appellate ladder, since they were “entitled” to win at the Civil Court. That is all for now.
For what its worth Sun J.T. said it better then I could say it. Well I don’t want to insult the man. He said it very well. I have seen some of the work from the Plaintiff’s bar. And not just my own. Goodness it’s horrible. Some of the writing is in a Russian accent.
J.T. is being somewhat fair here although I am constrained to state that this has not changed my position. It is not about plaintiff or defendant. Or No Fault. It is about the rules of evidence. The filter that makes sure that the finder of fact does not consider total nonsense.
We need to try these cases in front of juries. Imagine a Peer Review case. This would be my summation.
I would hold amorphous documents to my head like bills and police accident reports and other documents — could really be anything according to the term — used paper towels, magazine ads, etc. I would close my eyes and say: “Ohhmmmmm … Not medically necessary … pay the man.”
I would then sit down and win the case.
Flatery will get your everywhere.
Sun,
You know flattery is not my thing. If your papers fit within the “garbage in, garbage out” paradigm, I would let you know. I believe you are aware of that.
And Ray – thanks for the plug on DG’s blog. Your thoughts are usually welcome.