Re: The Rogak Report: 16 Dec 2009 (Part 3) ** No Fault - Verification Request **
- I see that the court actually issued this decision back in May, even though it wasn't posted to the New York Reporter's website until today. That explains there being no reference to the Second Department's November 17 decision in Infinity Health Prods. v. Eveready Ins. Co.
I would agree that this decision is moot unless, of course, the plaintiff provided the requested verification responses in this case, AND the Second Department on Progressive's appeal in Alur Med. Supply draws a distinction between cases in which there was no verification response, as in Infinity Health Prods., and ones in which there were, as in Alur Med. Supply v. Progressive.
I don't think we can say, just yet, that the Appellate Division, Second Department, considers all "early" follow-up verification requests to be okay and inconsequential to the insurer's claim defenses. I think we'll get an answer on that issue when that court decides Alur Med. Supply. Judge Golia's dissent in this case provides some compelling reasons for a bright-line rule against preclusion. I foresee a lengthy quote in Progressive's appellate brief.
Other than Golia's "or at any time" and other references in his dissent, I can't tell from this decision whether the plaintiff ever provided the requested verification to Country-Wide. Perhaps someone involved in that case can let us know. If it didn't, the Second Department's ruling in Infinity Health Prods. ostensibly should control. If it did, then what?
--- In TheRogakReport@yahoogroups.com, "Lawrence" <insurancelawyer@...> wrote:
> SECOND VERIFICATION REQUEST MAILED ON DAY 30 IS DEFECTIVE, LOSES CASE
> FOR INSURER St. Vincent Med. Care, P.C. a/a/o Crystal Gore v.
> Country-Wide Ins. Co. 2009 NY Slip Op 29508 Decided on May 8, 2009
> Appellate Term, Second Department Edited by Lawrence N. Rogak
> In this no-fault suit, Civil Court, Queens County, granted summary
> judgment to plaintiff. The Appellate Division modified the award. The
> court granted plaintiff's motion for summary judgment on the ground that
> defendant's verification requests failed to toll the 30-day claim
> determination periods.
> "A provider generally establishes its prima facie entitlement to summary
> judgment by proof of the submission of a statutory claim form, setting
> forth the fact and the amount of the loss sustained, and that payment of
> no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary
> Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742
> ). In the instant case, any deficiency in plaintiff's moving
> papers regarding proof of mailing of the claim forms was cured by
> defendant's claim denial forms, and the affidavit of defendant's claims
> representative in which receipt of the claims in question was conceded
> (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]). In addition, a review of the
> record indicates that plaintiff's affidavit sufficed to establish that
> the annexed claim forms constituted evidence in admissible form (see
> CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc
> 3d 44
> [App Term, 2d & 11th Jud Dists 2006]). Consequently, the record
> establishes plaintiff's prima facie entitlement to summary judgment."
> "Defendant... opposed plaintiff's motion for summary judgment on the
> ground that its verification and follow-up verification requests tolled
> defendant's claim determination periods. However, since defendant mailed
> its follow-up requests for verification on the 30th calendar day after
> it mailed its verification requests, the follow-up requests were
> premature and without effect (see General Construction Law § 20;
> Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity
> Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1
> [App Term, 2d & 11th Jud Dists 2008]). Accordingly... defendant failed
> to timely deny same and is precluded from raising most defenses, with
> exceptions not here relevant (see Presbyterian Hosp. in City of NY v
> Maryland Cas. Co., 90 NY2d 274, 282 ). Thus, plaintiff was
> properly granted summary judgment as to the remaining claims. For the
> foregoing reason, defendant's cross motion for summary judgment was
> properly denied."
> Comment: There was a long and well-reasoned dissent by Judge Golia
> which explained why any premature second request is neither prejudical
> to plaintiff nor fatal to the insurer, but a dissent is purely academic.
> The fact remains, for now, that a Day 30 second verification request is
> defective and makes any subsequent denial late.
> Larry Rogak