The verifications were not mailed

Learning from Legal Setbacks in No-Fault Insurance Cases

In the complex world of New York No-Fault Insurance Law, even experienced attorneys can inherit problematic cases from previous counsel. The case of Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co. serves as a valuable lesson about the importance of comprehensive affidavits and the critical difference between learning from mistakes versus repeating them indefinitely. Every litigation loss presents an opportunity for attorneys to analyze what went wrong and implement systemic improvements to prevent recurrence.

This case involved deficient verification affidavits that failed to address Additional Verification requests - a common but often overlooked requirement in no-fault practice. In New York no-fault litigation, insurers routinely send two types of verification requests: the initial NF-10 form requesting standard claim documentation, and subsequent requests for additional verification when the initial materials prove insufficient. Affidavits explaining non-receipt of verification must address both types of requests, or risk being deemed inadequate.

While the outcome was unfavorable, it demonstrates how legal setbacks can become learning opportunities when attorneys take proactive steps to improve their practice rather than simply accepting repeated defeats. The case also serves as a counterpoint to repeated failures by other practitioners who continue using deficient affidavits despite consistent judicial rejection.

Case Background

Daily Medical Equipment Distribution Center brought a no-fault action against Auto One Insurance Company seeking payment for durable medical equipment provided to an accident victim. The insurance company defended based on non-receipt of requested verification materials. In support of its case, the plaintiff submitted affidavits from employees explaining the office’s standard mailing procedures for NF-10 forms.

However, these affidavits contained a critical deficiency: they explained procedures for responding to NF-10 verification requests but did not mention Additional Verification requests. Since Auto One had sent requests for additional verification beyond the initial NF-10 forms, the affidavits failed to establish that those additional requests had been properly addressed. This gap in the evidence proved fatal to the plaintiff’s case.

Jason Tenenbaum’s Analysis:

Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co., 2016 NY Slip Op 51443(U)(App. Term 2d Dept. 2016)

These were affidavits I inherited from prior counsel. They explained NF-10s but did not mention Additional Verification requests. There was a residual catch all, but this did not work. But I mention this loss because after seeing it a few years ago, the affidavits were instantly fixed. This should be contrasted to all of the Alrof v. Safeco sightings we see where the court has already shot down certain affidavits and nobody attempts to fix, alter or ameliorate them. When people learn from their errors, they should be commended. Those that constantly repeat their mistakes are doomed to a life of mediocrity.

Legal Significance

The Appellate Term’s decision in Daily Medical Equipment highlights a fundamental evidentiary principle in no-fault litigation: affidavits must address all relevant issues, not just some of them. When an insurer sends both NF-10 verification requests and subsequent Additional Verification requests, a plaintiff’s affidavit must explain office procedures for handling both types of requests. An affidavit that addresses only one category of requests leaves a gap in the evidence that can defeat the plaintiff’s case.

This principle derives from the general requirement that parties establish their claims through competent admissible evidence. In no-fault cases where insurers defend based on non-receipt of verification, plaintiffs typically rely on affidavits establishing that their offices have standard procedures for responding to verification requests and that those procedures were followed. These affidavits must be comprehensive enough to cover all verification requests at issue in the case.

The reference to “residual catch all” language in the affidavits suggests they may have contained general statements about following office procedures for all mailings or communications. However, such general language proved insufficient when the affidavits did not specifically address Additional Verification requests. Courts require specificity in affidavits, particularly when technical regulatory requirements are at stake.

Practical Implications for Attorneys and Litigants

For healthcare providers and their attorneys, this case demonstrates the importance of careful affidavit preparation. Before submitting affidavits in support of summary judgment motions, counsel should review all verification requests sent by the insurer and ensure that the affidavits address each category. An affidavit template that works for cases involving only NF-10 requests will not suffice in cases where Additional Verification was also requested.

The case also illustrates the value of continuous practice improvement. When an affidavit template proves deficient, attorneys should immediately revise their forms to address the problem. This prevents repeated losses on the same issue and demonstrates professional competence. Creating a library of comprehensive affidavit templates that address various scenarios can significantly improve success rates in no-fault litigation.

The contrast drawn to Alrof v. Safeco cases is particularly instructive. In those cases, courts repeatedly rejected certain affidavit forms as insufficient, yet some practitioners continued using the same deficient forms in subsequent cases. This pattern suggests either failure to stay current with case law or willful disregard of judicial guidance. Either way, it reflects poorly on the practitioner and disserves clients.

For insurance companies, this decision confirms that careful review of plaintiff affidavits can reveal gaps that warrant denial of summary judgment. Defense counsel should compare the affidavits submitted by plaintiffs against all verification requests sent by the insurer, looking for instances where the affidavits fail to address specific categories of requests. These gaps can be grounds for opposing plaintiff summary judgment motions.

Key Takeaway

The most valuable aspect of this case wasn’t the loss itself, but the immediate corrective action taken afterward. By recognizing the deficiency in additional verification documentation and promptly revising their affidavit templates, the attorney transformed a setback into a practice improvement. This proactive approach stands in stark contrast to practitioners who repeatedly use rejected affidavit forms without making necessary adjustments.

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