Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51338(U)(App. Term 2d Dept. 2010)
Part I:
“[c]ontrary to the finding of the Civil Court, defendant established the timely mailing of the EUO scheduling letters with respect to plaintiff’s claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters. In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs,”
Part II:
“The first set of letters sent by defendant to plaintiff after defendant received plaintiff’s $334.14 claim (dates of service: July 24, 2006-July 31, 2006) and plaintiff’s $222.76 claim (dates of service: August 14, 2006 and August 15, 2006) merely stated that defendant was waiting for the results of an investigation by its special investigation unit as well as the scheduling of an EUO. Since it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]), defendant did not toll the statutory period within which defendant had to pay or deny said claims. While the rest of the letters sent by defendant in response to the remaining claims sent by plaintiff were in fact verification requests, the affidavit submitted by defendant’s no-fault specialist failed to establish that they were timely mailed (see New York & Presbyt. Hosp., 29 AD3d 547; Residential Holding Corp., 286 AD2d 679; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”
Part III:
“Notwithstanding the foregoing, defendant correctly asserts that plaintiff’s cross motion for summary judgment was premature under CPLR 3212 (f). Defendant established that while facts may exist that are essential to justify the denial of plaintiff’s summary judgment motion, defendant was unable to set forth such facts with respect to its non-precluded defense that plaintiff was fraudulently incorporated.”
As to Part I: These bills were probably received after the EUO defaults.
As to Part II: These bills were probably received prior to the EUO defaults and the EUOs were probably not scheduled within 15-30 days after receipt of the bills, so this makes sense. It appears that the the carrier said that the bills would be delayed until its counsel felt like setting up EUO’s.
As to Part III: “You can have it both ways”???
Now, here is something interesting. If you are conducting EUO’s to get information from providers based upon corporate structure issues, then aren’t you admitting that you do not have sufficient material to mount a meaningful defense? Yet in this case, the court held that even though the carrier admitted (through its actions of scheduling provider EUO’s) that it had insufficient evidence to mount a meaningful defense on the issue of corporate structure, the carrier’s papers were still sufficient to: (a) raise an issue of fact in answering a summary judgment motion; and (b) allow for broad discovery.
I think the carrier should have to elect its remedy. The carrier must: (a) seek an EUO and either deny for a provider’s default or conduct a more in depth investigation including denying for corporate fraud issues should the provider attend; or (b) deny based upon the information the carrier has and hopes it has enough information to survive summary judgment, trial or arbitration.
But, is it fair that an insurance carrier should deny for an EUO, which was improperly scheduled, and then get to defend on the basis for which the EUO was scheduled, i.e., corporate fraud?
I think summary judgment should have been granted to the provider on the second set of bills. Sorry for not towing the company line on this one – but fair is fair.
Lastly, this is why the District Court was wrong in Dynamic v. State Farm. The carrier, should it believe something is amiss, must schedule EUO’s, and the provider should attend or detail why the EUO’s are improper. These issues need to be developed pre-litigation.
Notwithstanding the above, if the carrier’s EUO demands are untimely, then all defenses including those that the EUO was supposed to expound upon should be precluded, as a matter of equity. Sloppy work on either the defense or the plaintiff side should not be tolerated.
