Fee schedule defense not preserved abesent a timely denial

17 Responses

1. You could not win this case under any circumstances. You know all too well that a fee schedule defense is not a lack of coverage defense and must be asserted in a timely denial. Although, I agree with your article that establishing the correct fee should be part of a plaintiff’s prima facie case.

   1. Let’s see what the Appellate Division says.

2. The App Div issued Unitrin. Neither law nor stare decisis seems to apply before that Court. Worth a shot JT.

3. The next time anyone complains about the following I am going to refer them to this case:

   1. the volume of no-fault litigation
   2. providers utilizing litigation instead of arbitration

   As this case shows, the insurers deserve some (if not most) of the blame.

   1. Oh Mr. Slick. This case is an anomaly. I think I have gone through with less than 3 trial de-novos in my career, and I have handled many arbitrations that are in excess of $5,000.

      As to the Unitrin based declaratory judgments, your clients should be enforcing the liens they have in the bi cases against the defautlitng injured persons. But since this is not the case and many Civil Court judges due to the sheer volume of cases on the calendar do not read the motion papers, the carriers have been forced into a venue where matters are taken on submission. This means – and this is a shock to many in the no-fault bar – the papers are read.

4. Mitch I totally agree with you on the law — what’s more law is the law. But right now the First Department is the bastion of industry and loves to crush the little guy — so anything can happen. They don’t even support what they do.

   Look for huge gaps between the First and Second.

   Note the Court of Appeals is an extension of the First Department.

   Jason has a knack for knowing his Courts. It has inflated his win/loss record tremendously. In reality J.T. is like a Mike Tyson. Beating on people but who has he beat.

   1. Don’t forget, as a Plaintiff, I also can chose the court and the defense firm.

5. Keep us posted on this one, Jay. I don’t see where you are going with this. But I am curious to see how it pans out. Good luck.

6. I get it. You are looking to tilt at a few windmills. I’ve done it myself, and I’m not the only one.

   However, it’s the arbitration system that allowed you a chance to fight this particular battle. Even the fact that it allows you a DJ action after arbitration is decided (and appealed to master arbitrator) is enough to put a lot of providers into litigation.

   1. Except if I lose, the attorney fees are New Jersey and Florida style… read the regulations… The Supreme Court could have 325(d) the case – I actually asked the Court during argument to retain jurisdiction so I could follow through on my plan.

7. I don’t understand any of this. You guys are the only people in this business that talk law. Law is all about venue.

   Look at O.J. Acquittal. New venue — responsible. Las Vegas — conviction for killing Ron and Nicole; nothing to do with stealing back his own stuff.

   Not that the this gross injustice bugs me. I don’t think we will ever see O.J. again except in the Obits –“died in the clink.”

8. I have a fantasy about Casey Anthony becoming a New York no-fault claimant and I get to take her EUO, and go head to head with Jose Baez.

   Kinda sad, that I’ve reached that stage in life where these are my fantasies.

9. “As to the Unitrin based declaratory judgments, your clients should be enforcing the liens they have in the bi cases against the defautlitng injured persons. But since this is not the case and many Civil Court judges due to the sheer volume of cases on the calendar do not read the motion papers, the carriers have been forced into a venue where matters are taken on submission. This means – and this is a shock to many in the no-fault bar – the papers are read.”

   I agree. There will be no blow back regarding the corporatist Unitrin ruling until the insured’s eat the medical expenses and are informed that this is required because the insurer denied coverage due to an alleged condition violation. Guarantee most these folks never received fair notice of the examinations, given carriers are already gaming this, with 9 pnt notices, English notices going to spanish speakers, notices going to the wrong address, etc.

10. I understand Rogak’s comment 100%. Sun I cannot understand what you and J.T. are saying.

    I am profoundly disturbed by this.

    Have Casey Anthony go out on a date with me. That’s far worse then capital punishment.

11. “Have Casey Anthony go out on a date with me. That’s far worse then capital punishment.”

    Something tells me her dance card is open.

    But I hope you do not plan on having children.

12. I have plans. Normal Zuppa date plans. But plans nevertheless.

    We better just leave it at that.

    And no children should ever be born out of vengeful lust and depraved acts of a sexual nature — so no worries there.

13. “vengeful lust and depraved acts of a sexual nature”

    Maybe you can get this worked in as a condition of her probation for check fraud.