Key Takeaway
Learn how IME no-show defenses trigger hourly attorney fee provisions in NY no-fault insurance. Court rules failure to attend IME is policy defense.
Kamara Supplies v GEICO Gen. Ins. Co., 192 AD3d 588 (1st Dept. 2021)
I find it offensive that a regulation states that an attorney should work for $70 an hour litigating a case, even a PIP case. It is wrong and, intrinsically, I hate to even acknowledge these minimum wage attorney fee disputes. But this case, which I subliminally ignored, raises the issue. Oh in Fla, they award between $500-$750 an hour for these cases. Hi DFS – how about $250 an hour on all cases, subject to a $10,000 cap, absent good cause shown?
(1) “We find that “policy conditions or exclusion” under which the injured person is excluded from coverage in the “policy issue” reason in box 4 of the NYS NF-10 form refers to the conditions and exclusions of the MPIPE (11 NYCRR 65-1.1 ), which include, as noted above, that an EIP must submit to IMEs as required by the insurer. We therefore conclude that an IME no-show defense is a box 4 reason for denial. An EIP who does not attend an IME fails to satisfy a condition precedent to coverage under the policy, voiding the policy ab initio (PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 ).”
(2) “Thus, an insurer who denies a claim [*2]for first-party No-Fault benefits on the basis of the injured person’s failure to attend an IME properly does so by checking box 4 on the denial of claim form, and therefore an injured person’s failure to attend an IME is a “policy issue” both according to the denial of claim form and for purposes of awarding attorneys’ fees under 11 NYCRR 65-4.6 (c).”
(3) “Moreover, statutes and regulations must be interpreted in a manner that does not render them meaningless, unreasonable, or absurd (see McKinney’s Cons Laws of NY, Book 1, Statutes § 145; Long v State of New York, 7 NY3d 269, 273 ). For this reason, we also reject the overly restrictive reading of 11 NYCRR 65-4.6 (c) urged by defendant, which would interpret “a policy issue as enumerated on the prescribed denial of claim form” (id.) as referring only to those specific justifications delineated on the form, and only as they are delineated on the form. That interpretation would both render some of the reasons on the denial of claim form meaningless and require the Department of Financial Services effectively to reproduce the MPIPE on the form to capture all the possible reasons for which a No-Fault benefits claim may be denied.”
Congratulations for minimum wage lawyering. At least when I worked at taco bell in the 1990s, I got to eat for free 😉
