SOME MORE

Liberty Med. Group, P.C. v New York Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51486(U) (App. Term, 1st, 2009)

Davydov v Progressive Ins. Co., 2009 NY Slip Op 29299 (App. Term, 2nd, 2009)

Alur Med. Supply, Inc. v Eveready Ins. Co., 2009 NY Slip Op 51492(U) (App. Term, 2nd, 2009)

563 Grand Med., P.C. v Nationwide Ins. Co., 2009 NY Slip Op 51493(U) (App. Term, 2nd, 2009)

AKS Med., P.C. v Progressive Ins. Co., 2009 NY Slip Op 51494(U) (App. Term, 2nd, 2009)

Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495(U) (App. Term, 2nd, 2009)

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co., 2009 NY Slip Op 51496(U) (App. Term, 2nd, 2009)

Proscan Imaging, P.C. v Lumbermens Mut. Cas. Co., 2009 NY Slip Op 51500(U) (App. Term, 2nd, 2009)

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 2009 NY Slip Op 51502(U) (App. Term, 2nd, 2009)

MORE DECISIONS

Bronx Expert Radiology, P.C. v Great N. Ins. Co., 2009 NY Slip Op 51474(U) (App. Term, 1st, 2009)

Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51475(U) (App. Term, 1st, 2009)

Choicenet Chiropractic, P.C. v Clarendon Ins. Co., 2009 NY Slip Op 51472(U) (Civ Ct City NY, Richmond County)

"Examinations Under Oath of Assignees"

The Insurance Department, Office of the General Counsel, recently issued an opinion letter regarding examinations under oath of assignees.

The short version:

Question:

May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?

Answer:

No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath.

Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?

AND ONE I MISSED

Found this over at No Fault Law - a defense attorney's perspective:

In a very interesting case, the Appellate Division, Fourth Department held that principles of collateral estoppel do not apply in arbitration.

Matter of Falzone v New York Cent. Mut. Fire Ins. Co. 2009 NY Slip Op 05423 (4th Dept. 2009)

Make sure to head over there to read the rest of his post.

AND MORE

Corona Comprehensive Med. Care, P.C. v Global Liberty Ins. Co. of N.Y., 2009 NY Slip Op 51432(U) (Civ Ct City NY, Queens County)

Media Neurology, P.C. v Liberty Mut. Ins. Co., 2009 NY Slip Op 51424(U) (Dist Ct Nassau County, Third Dist)

NEW DECISIONS

Matter of Okslen Acupuncture P.C. v Dinallo, 2009 NY Slip Op 31449(U) (Sup Ct, NY County, 2009)

Crossbridge Diagnostic Radiology v Encompass Ins., 2009 NY Slip Op 51415(U) (App. Term, 2nd, 2009)

SCALIA THINKS I'M STUPID

Justice Scalia and Brian Garner were in Texas last week to at the Texas Bar Association's annual meeting. The topic: legal writing. Long critical of most legal writing, Scalia spoke about some things he finds particularly irksome.¹

Never underestimate the power of a short sentence.

Treasure simplicity and clarity, Scalia said.

"You don’t get any credit for eloquence," Scalia said. "Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex."

Avoid using words you don’t know how to pronounce.

"You’re inclined to think this person is not the sharpest pencil in the box," Scalia said. "I’ve listened to lawyers who have sent five kids to college on nuclear power and still can’t say the name right. It’s nuclear. Nuclear."

Use italics sparingly.

"If you’re constantly italicizing words, it sort of reads like a high school girl’s diary," Scalia said.

Tex Parte Blog covered the talk as well, getting some more great quotes:

He regards as “hackneyed” the expressions “fatally flawed” and “Roe v. Wade and its progeny.”

Characterize cited precedents accurately: “When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief.”

I'm pretty sure I'm not eloquent and I don't think that I ever will be, so that's good. I use contractions (he isn't a fan). Blockquotes too (again, not a fan). My sentences are short and simple, which would be good, if they didn't read like Hemingway on meth.

In short, if Scalia ever managed to get his hands on anything I wrote, he would think that I am a high school girl, who was left back a couple of grades, writing in a diary.

Here's an interesting question: Does no-fault lend itself to good writing? With very few exceptions, unfortunately the answer is no². No-fault motions don't vary much. They can't. What I mean is that the underlying arguments don't vary. Writing about the same thing, over and over and over, you lose a little something. That little something tends to be research and writing. Does it matter? Probably not.³ Should it matter to you? Probably.

Most attorneys don't stay in this field long. They come straight out of law school, work a couple of years doing this, and leave⁴. And others stay. Whether you stay or go, you probably want to get ahead. One way to do that is to write well. It isn't easy, and it's a talent few possess. Not easy + rare = marketable. I don't hire people, but if I did, it would be something I looked for. It'd be pretty important to me. Whether it's important to your boss is irrelevant. That's a terrible excuse. Someone told me once, "complacency will kill you." It will. It will glue your feet to the floor.

For all I know, tomorrow I'll be sitting in court thinking about how trying to write well is a waste of time. Wasted effort having no effect affect effect on the outcome. So take all this with a grain of salt. Also remember, I am no expert. Not even close. I work on my writing when I have time. Sometimes I don't when I should. Sometimes I focus on my writing, ignoring the content. It doesn't come easy to me. Never did. Even when I try, I manage to screw it up. Hell, I don't bother to proof-read my posts.

Getting back to Scalia and Garner...

They have a book, you should read it. I've recommended it three times now, which must be some sort of record. Garner teaches CLEs on writing. You should go to one. I missed the one this year because it's expensive. Really expensive. Have someone else pay for it.

A good start.

____________________

1. The quoted section comes from Star-Telegram.com: http://www.star-telegram.com/dallas_news/story/1457100.html
2. That's an emphatic "no"
3. With a qualification. Research matters. You shouldn't be citing bad law or getting cute with your cites.
4. They leave for varied reasons. Sometimes it's the money. Other times it's the prestige (or lack thereof). Some people really hate going to Court. It really doesn't matter.

NEW CASES

Fiveborough Chiropractic & Acupuncture, PLLC v American Empls.' Ins. Co. Div. of Onebeacon Am. Ins. Co., 2009 NY Slip Op 51395(U) (App. Term, 2nd, 2009)

Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The affirmation of plaintiff's "primary doctor and principal shareholder" was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff's attorney's affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.

Crossbridge Diagnostic Radiology v Encompass Ins., 2009 NY Slip Op 29281 (App. Term., 2nd, 2009) Edit: Opinion withdrawn from publication in the Miscellaneous Reports by the State Reporter. This opinion will be published on-line only. See 2009 NY Slip Op 51415(U).

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it denied plaintiff's claim on the ground that no coverage existed since the policy benefits had been exhausted. In response, plaintiff argued that defendant failed to timely deny plaintiff's claim and, in any event, defendant did not present admissible evidence establishing that the policy benefits were exhausted because the affidavit by defendant's claims representative was executed before a Massachusetts notary public and there was nothing showing that it complied with CPLR 2309 (c). The Civil Court granted plaintiff's motion for summary judgment, holding that defendant failed to proffer evidence establishing a triable issue of fact. The instant appeal by defendant ensued. A judgment was subsequently entered.

A "defendant's failure to issue a denial of the claim within 30 days d[oes] not preclude a defense that the coverage limits of the subject policy have been exhausted" (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2005] [internal quotations omitted]; see also Presbyterian Hosp. in City of NY v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]). However, the affidavit proffered by defendant, in which defendant's claims representative asserted that the available coverage had been exhausted, was not in admissible form. Defendant's affidavit was not in conformity with CPLR 2309 (c), which fact was duly [*2]objected to by plaintiff in the Civil Court (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant's attorney's affirmation was of no probative value since she did not establish that she had personal knowledge that the coverage limits of the policy had been exhausted. Consequently, defendant's assertion of the exhaustion of available coverage was without any probative value.

Defendant's remaining contention is unpreserved for appellate review and, in any event, lacks merit (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate the order entered May 18, 2007 and deny plaintiff's motion for summary judgment, in the following memorandum:

The majority decision here places form over substance and does not comport with the entire body of law as rendered by the Court of Appeals.

One of the pre-eminent cases in no-fault law is the Court of Appeals' decision in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). The commonly held belief among many who are involved in no-fault law and litigation is that Chubb provides that a defendant will not be precluded from raising the defense of a "staged" accident despite having failed to deny the claim within 30 days. In actuality, however, there was no claim of a "staged" accident in Chubb. The defendant simply asserted that the assignor's injuries were the result of a work-related accident and were therefore not covered by the automobile insurance policy in question. The Court of Appeals specifically held that despite the fact that the assignor was a covered person who was involved in an otherwise "covered" accident, there was a founded belief that her injuries were due to some other cause and were therefore not covered by the policy of insurance.

Indeed, Chubb relied heavily upon the prior Court of Appeals' decision of Zappone v Home Ins. Co. (55 NY2d 131 [1982]). There, Mr. Zappone sent notice to the defendant Home Insurance Company that he had been in an automobile accident and was being sued by those injured in that accident. That notice sought coverage by the carrier in excess of the benefits being provided by the primary carrier. Home Insurance failed to disclaim coverage until some 15 months later, which unquestionably exceeded the mandates of subdivision 8 of section 167 of the Insurance Law.

The Court of Appeals was then confronted with applying a statute whose clear effect would result in directing an insurance carrier to provide coverage and reimbursement for which [*3]the carrier did not contract. The Court declined to do so and stated that,

"Literal interpretation of the words used will not be accorded when to do so will occasion great inconvenience, or produce inequality, injustice or absurdity. It is, moreover, always presumed that no unjust or unreasonable result was intended and the statute must be construed consonant with that presumption" (id. at 137 [citations omitted]).

Nevertheless, here the majority gives no weight to defendant's attorney's affirmation that effectively placed into issue whether, in accordance with the terms of the insurance contract, the assignor's benefits had "maxed out". Indeed, her affirmation refers to and incorporates certain documents pertaining to the fact that this claim is beyond the $8,000 monetary limit for no-fault benefits under the insurance contract at issue.

More specifically, that affirmation states that :

"The bill was denied because the policy benefits of $8,000.00 provided under the Massachusetts policy have been exhausted . . . [A]nnexed hereto as Exhibit B . . . [are] copies of the following:

Application for PIP Benefits indicating accident occurred in Massachusetts; printouts from carrier containing coverage information and portion of insurance policy providing for PIP coverage in the amount of $8,000.00; Payment History showing payout of benefits in the amount of $8,000.00"

These documents, coupled with the uncertified "affidavit" by Ms. Teixera, which was sworn to before a notary of our sister state of Massachusetts, in addition to the affirmation of the moving attorney, should certainly constitute a "founded belief" that this claim is not covered by the policy of insurance (see Weiss v Garfield, 21 AD2d 156 [1964] and the dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co, 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). Indeed, even if it does not reach that level, then the lessons taught by Chubb and Zappone should still have mandated that plaintiff's motion for summary judgment be denied.

Look for more later.

IN TODAY'S LAW JOURNAL

An important and somewhat novel issue has been decided in New Era Massage Therapy PC v. Progressive Casualty Ins. Co., CV-065009-08/QU, which is a decision of interest in today's New York Law Journal.

At trial, the parties agreed by stipulation to consolidate the above actions for decision. The issue effecting each case is whether the claimants' failure to appear for examinations under oath ("EUO") a proper basis for the defendant's disclaimer of benefits. The parties submitted briefs on the action bearing index number 065009-08 and agreed that this Court's decision in that case would be controlling in the remaining six causes of action.

The parties have further agreed that the actions bearing Index Numbers 065000-08 and 065005-08 involve an additional issue.

That is, whether the defendant properly preserved the fee schedule defense and, if so, whether the defendant has met its burden of establishing that an improper fee was assessed for the services rendered thus changing the amount defendant would be obligated to pay.

The first issue is whether the defendant properly denied claimant Ludmillia Jean-Francis' (Jean-Francis) no-fault benefits as submitted by plaintiff New Era Massage Therapy, P.C. ("New Era"). A review of the record reveals that New Era submitted bills for massage treatments performed upon Jean-Francis between September and December 2007. Defendant paid one bill in the amount of $578.80 and denied three bills for $578.80, $405.16, and $289.40. The denials were based upon Jean-Francis' nonappearance for EUOs that were scheduled on 10/26/07, 11/30/07, and 1/15/08.

New Era argues that the defendant failed to tender any evidence to prove that Jean-Francis' attitude constituted a pattern of willful and avowed obstruction. New Era contends that the defendant cannot meet its burden by merely showing that Jean-Francis adjourned two EUOs and failed to appear for one. New Era further argues that the defendant never asserted that it attempted to contact Jean-Francis or even ascertain the reason for her nonappearance at the January EUO. Plaintiff also maintains that the interaction between the parties is demonstrative of a cooperative rather than noncooperative relationship.

Defendant contends that Jean-Francis' appearance at the scheduled EUOs is a condition precedent to its liability on the insurance policy. Defendant maintains that multiple requests to adjourn EUO appointments do not negate Jean-Francis' failure to show on three (3) different occasions. Defendant also posits that New Era's argument runs afoul of the core objectives of no-fault law, because it would require insurers to reschedule EUOs for an indefinite period of time.

Under Insurance Law 5102 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault benefits within thirty (30) days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial (Mt. Sinai Hosp. v. Chubb Group of Ins. Cos., 43 AD3d 899-90 [2d Dept 2007]). An insurer may toll the thirty (30) day period by properly requesting verification within fifteen (15) days from the receipt of the proof of claim form or bill (11 NYCRR 65.15 (d)(1); Capio Medical, P.C. v. Progressive Cas. Ins. Co., 7 Misc3d 129(A) [App Term, 2d & 11th Jud Dists 2005]). The insurance regulations provide for IMEs and EUOs as part of an insurer's entitlement to additional verification following receipt of the provider's statutory claim forms (Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc3d 18, 19 [App Div, 2d Dept 2004]).

Failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath…is a material breach of the policy, precluding recovery of the policy proceeds (Argento v. Aetna Cas. and Sur. Co.,184 AD2d 487 [App Div, 2d Dept 1992]). However, in order for an insurer to prevail on a defense premised upon a claimant's failure to appear for a scheduled EUO, the insurer must show that the claimant's attitude was one of willful and avowed obstruction involving a pattern of noncooperation for which no reasonable excuse is offered (Unitron Advantage Ins. Co. v. Carothers, 17 Misc3d 1121(A) [Sup Ct, New York County 2007]). The burden of proving noncooperation is a heavy one (Thrasher v. United States Liability Ins. Co., 19 NY2d 159 [1967]; State Farm Mutual Automobile Ins. Co. v. Figueroa, 8 Misc3d 1011(A) [Sup Ct, Bronx County 2005]). The insurer must demonstrate that it acted diligently and its efforts were reasonably calculated to bring about the insured's cooperation and that the insured's attitude was one of willful and avowed obstruction after the cooperation was sought (Thrasher, 19 NY2d at 168). Under this standard, the insured need not have openly "avowed" the intent to obstruct the insurer; however, the showing must support the inference that the insured's failure to cooperate was deliberate (State Farm Automobile Ins. Co., 8 Misc3d 1011(A)).

Applying these principles, there is no evidence tending to show or even support an inference that Jean-Francis willfully thwarted New Era's verification process. The defendant scheduled three EUO appointments over a three-month period. Jean-Francis' attorney contacted the defendant to adjourn two EUOs and Jean-Francis failed to show for the third. It is well settled, however, that an adjournment may occur pursuant to an agreement between the parties, court order, or even unilaterally if a party decides to exercise a right to postpone a matter (see generally Shoff v. Taylor, 162 Misc 681, 685 [Sup Ct, Oneida Cty 1925]; Reynolds v. Cropsey, 241 NY 389, 394 [1925]). Therefore, this Court will not view the 10/26/07 and 11/30/07 adjournments as noncooperation or willful obstruction. In fact, the court can find no affirmative acts on the part of Jean-Francis or her attorney tending to demonstrate ill will or noncooperation. Neither is there any indication that the defendant exerted efforts to engage Jean-Francis in the verification process and that same was met with noncooperation. There is simply no evidence that Jean-Francis actively encumbered the verification process. The only affirmative acts to speak of are those of Jean-Francis' attorney who contacted the defendant to adjourn the October and November EUOs. Thus, the defendant's disclaimer based on its contention that Jean-Francis failed to cooperate is not supported by legally sufficient evidence.

...

Accordingly, this court denies that portion of defendant's argument that the plaintiff's claims should be denied due to the claimants' nonappearance for examinations under oath. That part of the defendant's claim seeking reduction of the amounts to be paid on claims submitted under Index Numbers 065000-08/QU and 065005-08/QU is denied. Defendant shall tender payment in full for each outstanding bill under Index Numbers 065002-08/QU ($1910.04), 065009-08/QU ($1273.36), 065000-08/QU ($3328.00), 065005-08/QU ($2868.00), 065006-08/QU ($863.54), 065004-08/QU ($2139.26), 065008-08/QU ($1234.24) together with statutory interest, costs, and attorneys fees.

For other posts on the Non-cooperation issue, Click HERE and HERE.

FROM THE APPELLATE TERM, FIRST DEP'T

New York Neurology Assoc., P.C. v MVAIC, 2009 NY Slip Op 51314(U) (App. Term, 1st)

Although preclusion is a drastic remedy, defendant's unexplained failure to comply with several discovery demands and a subsequent so-ordered stipulation, in which defendant agreed to respond to plaintiff's written discovery demands or "be precluded from offering such evidence at trial," warranted the preclusion of defendant's evidence (see Zapco 1500 Inv. L.P. v Wiener, 299 AD2d 206 [2002]). Defendant's purported response to the discovery demands, submitted in opposition to the motion for preclusion, amounted to no response since it objected to the questions as "irrelevant and overbroad," instead of providing the requested information.

On the merits, plaintiff made a prima facie showing of entitlement to judgment as a matter of law. In opposition, defendant failed to raise a triable issue. The proper preclusion of defendant's evidence rendered it unable to establish those defenses which were timely denied, and to which the precluded evidence related. Inasmuch as defendant, in opposing summary judgment, did not address, much less offer proof in support of its statute of limitations defense, it failed to raise a triable issue with respect to the timeliness of plaintiff's no-fault action.

Krishna v Liberty Mut. Ins. Co., 2009 NY Slip Op 51312(U) (App. Term, 1st)

Defendant's NF-10 form, which stated that plaintiff's no-fault claim was denied based on the results of an independent peer review, sufficiently apprised plaintiff of the factual basis for the denial (see 11 NYCRR 65-3.8[b][4]; New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 39 AD3d 832 [2007]). The initial peer review report relied upon by defendant, as amplified upon defendant's receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff.