Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)
In the approximately 10 years, since Unitrin brought the notion of the condition precedent DJ. And now, 9 years later, it has almost been destroyed on a less than stellar record. You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).
Point I
“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”
Two problems here. First this was a provider EUO. The record discloses, establishes and discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs. Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO). I don’t get it. the EUO process started before the received billing. Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.
Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days? I sense that discussion did not occur.
Point II
Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).”
It is like anything else – some cases need to settle. This was one of them – watch the argument and you will see what I mean. Luckily, Manoo settled or the First Department DJ as we know it would probably be dead. That was a complete disaster in motion.
I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.
Many issues here will await another fully contested appeal.
4 Responses
It should also be noted that July 1, 2013 is not 15 business days from June 17, it’s 14 calendar days (excluding the day of reckoning per GCL 20)
Why does it matter if any of the denials were good, bad, ugly. Once they found that there was a timely and proper denial of claim for one of the bills, does it not vitiate coverage under the other Unitrin? Is that not the real issue here? The discussion of the timeliness of early denials or EUO requests would seem unnecessary as once there is a timely and proper no show it fixes all the other untimely issues. I will point out that the issue of whether the patient EUO gave rise to the “NEED” of the provider EUO may be a continuation of the Neptune doctrine. You have 15 days from receipt of bill to request verification there is no piggybacking of verification extending time. Post-EUO verification arguably does not exist. Your point on the NYACK issue is spot on – I think we will be litigating the deminimis issue for a long time. Jason I beg you fix the capitals, I can barely write as it is.
My web guy swears there is no caps issue. He tells me it is everyone else’s fault. If I give you his email, can you show this to him? He does not believe me. I am waiting for an opinion/order from the First Department where they finally address the Unitrin DJ issues. I sense that is coming soon because the court is all over the place. I think applying Nyack may serve the main goal of the Court: keeping no-fault cases out of Supreme Court. The current roster of judges have sat through ATICS, Rubin Fiorella’s, mine, Bruno’s and everybody elses’ no-show DJ cases. I would gather to say they do not want these cases to take away from the Yellowstone injunction, LL 240 and commercial litigation for which York County Supreme is best known. Watch pragmatism replace genuine legal doctrine.
It’s clear now the App. Div. First requires timely and specific denials of nonappearance defenses and timely EUO/IME notices. The Unitrin vs. Bayshore Court erred by defining a policy condition defense a “coverage” defense. The Court refuses to directly address their error, but this new decision makes it all clear– the notice must be timely to at least one claim and the denial must always be timely and specific. In short, NOT a “coverage” defense.