Exoto, Inc. v Progressive Ins. Co., 2011 NY Slip Op 50329(U)(App. Term 2d Dept. 2011)
“A review of the record indicates that each of defendant’s requests for NF-3 forms states, in pertinent part, that “Every box must be fully completed, blank boxes will not be accepted.” It is uncontroverted that the box on the NF-3 form plaintiff provided in response to defendant’s initial verification request – – wherein the provider’s signature should be placed – – was left blank. [*2]Therefore, when defendant issued its follow-up request which, again, informed plaintiff that “Every box must be fully completed, blank boxes will not be accepted,” defendant clearly apprised plaintiff of why the submitted NF-3 form did not satisfy its request for verification.”
By the way, this is why the proposed regulations (if you read them) have clamped down on the verification process. In all honesty, is this really a proper reason to delay the payment or the denial of a bill? This just gives the plaintiffs bar fodder when submitting comments about the proposed regulations. And heaven knows, the proposed regulations – especially the EUO section – spells a doomsday scenario for us defense attorneys. Yet, this case is Exhibit “A” when the plaintiffs bar marches up to Albany this year.
But back to this case. At the end of the day, it is the appellant plaintiff that is to blame for the result herein Why couldn’t the plaintiff sign the bills and resubmit them? The Plaintiff knew (I think) the court that would be hearing this appeal.
6 Responses
Considering the fact that the blank box was the one for the provider’s signature, Progressive’s demand was not unreasonable, in my opinion. In some cases, the provider isn’t even in business any more or the principal might be in jail or otherwise unavailable, so the signature demand is legitimate. Of course, what’s sauce for the goose is sauce for the gander, too: how many times has an insurer lost a no-fault suit because a box on the denial was left blank?
Yes, the blank box paradigm. I think the court was probably correct in how they held. I am not sure I said otherwise; and if I did, my appologies. My point, and it really is more of an observation, is that these types of claims practices have already bit the defense bar as it relates to the crafting of the new regulations. As to the NF-10 “blank box” jurisprudence, I think the Appellate Division has been off its rocker on these types of cases lately. I know you said you recently got burnt on this type of case. I saw that NJ Manufacturers really got hit hard at the Appellate Division today. I am not pleased with what is going on from both camps on these hypertechnical issues. It is about as nauseating as what we saw with the “mailing issue” post contempt and prior to Delta Diagnostic. Perhaps Justice McKeon’s “time out” philosophy (Lenox Hill v. Tri-state) should be seriously examined.
This was my appeal. Anyone who knows me knows that I wouldnt appeal a bad record. I never appeal cases and this is why: there is no point.
Progressive pended for a signed bill. The verification request was responded to with a signed bill. Progressive was silent after the signed bill was submitted. The issue was that the signature was not in the box for signature, but was placed in a different location on the bill. If I remember right it was underneath the doctor’s name. The signature was on the bill. The underlying affidavits indicated that the verification request was complied with.
Why then was Progressive really delaying payment? And why is the Court complicit in this nonsense? Lets call a spade a spade.
Thats why I like Ray, he calls it like he sees it. The concept of prompt payment is a sham and the insurance industry is making billions off of it.
Sorry Eva. I did not wish to accuse you of appealing a case where the result was preordained. But I think your comment will only embolden the Plaintiffs bar. You do realize that you would have obtained a different result in the First Department. By the way, did you obtain a properly signed bill and “comply” with the verification request? Your case was only dismissed without prejudice as being premature…
This bill was only for a few hundred dollars. It was appealed purely for the sake of principle. The Defendant had a signed bill before the suit was commenced. The Plaintiff specifically sent the signed bill in response to the verification request. For the defendant to then argue that they needed the bill to be signed in a different box was patently rediculous. That the Court is willing to be a party to the game play, money grab that the insurance industry routinely utilizes the Court for is expected, but still disapointing. It is right up there with the prima facie trial, where the insurance company will subject you to an hour long trial wherein you have to prove that you mailed them the bill that is sitting in the file that their lawyer brought with them to court. The bill is sitting in their file right next to the interrogatory response that admits to having received it. Still, it is the Plaintiff’s bar that has to defend itself from the claim that we abuse the Courts.
But yes, the bill has been resubmitted. It is signed in two locations now. I like to call it a very verified bill.
And all is right with the world.
Did PROGRESSIVE really not have enough information to pay the claim?
Will EVA GASPARI get her court costs and attorney fees back when she “complies” with the verification request?
What ever happened to not treating the claimant as an adversary?