Consolidated Attorney fee

EMA Acupuncture P.C. v Allstate Ins. Co., 2015 NY Slip Op 50348(U)(App. Term 1st Dept. 2015)

Good job James F. Sullivan and crew.

We sustain so much of the order under review as limited the amount of any recovery of attorneys’ fees to the sum of $850, the maximum allowable pursuant to Insurance Department Regulations § 65-4.6(e). Since this provision provides that attorneys’ fees in a no-fault action are to be calculated based on the “aggregate of all bills for each insured” disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 ), the $850 limit was properly applied to the claims at issue in this consolidated action, all of which involve the same parties and assignor, and arise from the same accident.”

So assume that you have a typical multisuit involving three providers and one assignor.  Can you now make the argument that the attorney fee should be on an aggregate basis?  Therefore, $60 minimum and $850 maximum regardless of the amount of Assignee medical providers?  With the new-new-new regs, I am unsure this will matter as the minimum has been removed and you need just north of $8100 in combined principle and interest to reach the attorney fee ceiling.  Maybe with consolidated NJ  surgery cases this can be relevant?

Legal Significance

The Appellate Term’s interpretation of Insurance Department Regulations § 65-4.6(e) clarifies that attorney fees in no-fault actions are calculated based on “the aggregate of all bills for each insured” disputed in any action. This language makes clear that the fee cap applies per assignor and per action, not per provider or per bill. When multiple providers consolidate claims arising from the same accident and involving the same assignor, the $850 maximum applies to the aggregate recovery, not to each provider’s individual claims.

This holding follows the Court of Appeals’ decision in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., which emphasized that attorney fees should be calculated based on the aggregate amount at issue in the litigation. The regulatory framework is designed to provide fair compensation for legal work while preventing attorneys from circumventing fee caps through creative pleading or case structuring.

The decision has important implications for how providers and their counsel approach case consolidation. While consolidation offers procedural efficiencies and reduces court congestion, it also limits the total attorney fee recovery available. This creates a potential tension between judicial efficiency and economic incentives for attorneys handling no-fault cases.

Jason Tenenbaum’s forward-looking question about multisuit scenarios demonstrates the practical complexity these regulations create. If three providers treating the same assignor each file separate actions, can the attorney later argue that fees should be aggregated across all three actions, resulting in a single $60 minimum and $850 maximum? The court’s reasoning suggests that this argument has merit when the same parties and accident are involved across multiple actions.

However, as Jason notes, subsequent regulatory amendments have changed the fee calculation structure. The removal of the minimum fee and the establishment of a new fee schedule tied to principal and interest amounts means that the specific dollar amounts discussed in this 2015 decision may no longer be accurate. The broader principle—that fees are calculated on an aggregate basis per assignor per accident—likely remains good law.

Practical Implications

For plaintiffs’ attorneys, this decision requires careful consideration when deciding whether to consolidate claims or maintain them as separate actions. While consolidation may reduce litigation costs and accelerate resolution, it caps attorney fee recovery at levels that may not justify the workload involved in prosecuting multiple claims.

For healthcare providers, the decision demonstrates why they may sometimes prefer to maintain separate actions rather than consolidating, even when judicial efficiency would favor consolidation. The fee structure creates economic incentives that may not align with procedural efficiency.

For insurance carriers, the ruling provides some protection against excessive attorney fee awards in cases involving multiple providers and multiple bills arising from the same accident. Carriers can cite this decision when opposing fee applications that seek to treat each provider’s claims as separately entitled to the full fee cap.

Related Articles

• Attorney Fee Requirements in New York No-Fault Insurance Cases
• LMK Attorney Fee Calculation Problems in NY No-Fault Cases
• Attorney fees for cases filed on or after February 4, 2015
• Third DCA refuses to apply 65-4.6(e) under abuse of discretion standard
• Interest and attorney fee calculations

Legal Update (February 2026): Since this 2015 post, New York’s no-fault attorney fee regulations under Insurance Department Regulations § 65 have undergone significant amendments, including changes to fee calculation methods, minimum thresholds, and maximum allowable amounts. Practitioners should verify current provisions of § 65-4.6 and related fee schedule regulations, as the specific dollar amounts and calculation formulas discussed in this post may no longer be accurate.