New York Methodist v. Country Wide, Sup Ct. Nassau Co. Index #: 3676/11
Nassau has been all over the place on the DJ front regarding the confusion between Westchester/Lincoln and Unitrin. Yet, when the carrier is a defendant, it always seemed that Nassau County Supreme Court would apply Westchester/Lincoln.
Here is a very recent case where that Court found Unitrin to be controlling precedent. The best line of the case is as follows: “[p]laintiff’s simple argument that Defendant failed to prove that the notices were mailed to the assignor or that the assignor failed to appear at any of the scheduled IMEs is without merit.” I would use this language in all civil court opps.
4 Responses
You make a very valid point. However, upon a close reading of the case, I am not so sure that the Court was convinced that the denial was untimely. You could still read the case as saying that the insurer’s denial was timely, albeit the Court did not cite Weschester v. Lincoln General.
I am afraid we must part company. The verification for the IME failed the Arco v. Lancer test. The delay for the IME was more than 15-30 days post receipt of bill The denial was more than 30-days after the last IME. Now, there is a case, Park Slope v. somebody (it is on my blog), where the IME no-show denial is timely if disclaimed 30-days after receipt of the requested non-IME verification. So, maybe that occurred here?
In any event, there is no way that Henig and his Hospital Receivable DRG max machine is going to wait more than 9 months after a demand for verification to send it. Perhaps, there was a verification fight? But on this record, it appears taht the denial was late.
the words “of no moment” is a direct quote from unitirin.
Upon further analysis, I agree with JT that the denial was late. It also appears tht the IME request was late because ti was sent more than 15-30 days after receipt of the bill. In that case, the decsion by Judge Bruno is inconsistent with Unitrin. It is often overlooked that the Court in Unitrin specifically noted that the insurer’s IME requests were mailed in accordance with the time frames set forth in the regulations, to wit, 15-30 days after receipt of the bill. See also, the decision today by the Appellate Term, First Department in Dowd v. Praetorian, 2012 N.Y. Slip Op. 51160(U) where the Court, citing Unitrin, specifically noted that the insurer properly and timely mailed the IME notices. Although Judge Bruno cited Unitrin in support of his ruling that a denial based upon an IME no-show does not have to be timely, he nevertheless ignored that part of the holding in Unitrin which requires that the IME scheduling letters be mailed in accordance with the verification protocols. More broadly, this is why Unitrin is a bad decision. On the one hand you cannot say a denial based upon the failure to appear for IME’s is a lack of coverage defense exempt from preclusion and then later in the case also say that the scheduling letters must comply with the strict time frames set forth in the verification protocols.