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The Rogak Report: 30 Mar 2010 ** No Fault - Exhaustion Of Benefits **

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  • Lawrence
    Message 1 of 1 , Mar 30, 2010


      Westchester Medical Center a/a/o Theresa Carrasco et al. v. Liberty Mutual Ins. Co., 2010 NYSlipOp 30649U (Supreme Court, Nassau County) (Index No. 

      018949/09) (Palmieri, j)

      Edited by Lawrence N. Rogak

      In this no fault suit, it was undisputed that assignor Clavijo was a patient at plaintiff's facility from June 22 through July 1, 2009. By way of affidavit of an account representative for the plaintiff, Peter Kattis, and associated documentation, the plaintiff demonstrated that a billing in the amount of$10,084.44, for this admission was mailed to the defendant on July 16 2009 and received July 17 2009. It was not disputed that Liberty neither denied, paid, nor sought any further information with respect to the claim and this action ensued.

      "The foregoing constitutes proof sufficient to make out a prima facie showing that the plaintiff is entitled to judgment as a matter of law for the balance stated, with statutory interest and attorneys ' fees, as it establishes that the defendant failed either to pay the hospital bil or to issue a timely denial within 30 days of receipt of the claim. Insurance Law 5106(a); 11 NYCRR 65- 8(a)(1); see, Hempstead Gen. Hosp. v. Insurance Co. of N. Am., 208 AD2d 501 (2d Dept. 1994). The burden thus shifts to Liberty to demonstrate that issues of fact exist with regard to plaintiff's right to the relief sought in its complaint." 

      "Defendant' s opposition to this motion and the basis for its cross motion is that (i) plaintiff has sued the wrong part because the owner of the bus upon which Clavijo was a passenger is self-insured, and Liberty is merely an administrator of the plan, and (ii) the 'policy limits' are $50,000 and have been exhausted for this assignor by reason of prior payments to other providers."

      "These defenses and cross motion are supported by an affidavit of a representative of Liberty and copies of print-outs of computer screens showing that from August 17, 2009 through November 2009 payments in excess of$50,000 were made by Liberty to Clavijo and that the insured is Academy Express LLC. One page of payments of approximately $2,369 does not show dates of payment."

      "The Court finds that the evidence submitted by Liberty is insufficient to create an issue of fact to defeat plaintiff's motion and fails to establish a prima facie showing of entitlement to relief on defendant's motion."

      "Initially, the Court notes that the basis for Liberty' s opposition and cross motion constitute affirmative defenses which were not pleaded as such by Liberty in its answer. A party shall plead all matters which, if not pleaded, would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading. CPLR 3018(b); Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3018: 13 et seq. There also is authority that affirmative defenses are deemed waived if not raised in the pleadings.  Butler v. Catinella 58 AD3d 145 (2d Dept. 2008); Rooney v. Slomowitz 11 AD3d 864 (3d Dept. 2004)."

      "However, an unpleaded defense may be raised on a summary judgment motion as long as it would not be likely to surprise the adverse party or raise issues of fact not previously apparent. Brodeur v. Hayes 305 AD2d 754 (3d Dept. 2003). Further, the Court recognizes that when a plaintiff moves for summary judgment, it is proper for the Court to look beyond the defendant' s answer and deny summary judgment if facts are alleged in opposition to the motion which if true, constitute a meritorious defense. Nassau Trust Co. v. Montrose, 56 NY2d 175 (1982). However, even when applying this generous standard in favor of defendant, its opposition to plaintiff's summary judgment motion lacks enough evidence to stave off a ruling in plaintiff's favor."

      "There is nothing in the record to suggest that plaintiff was suing the wrong party. Defendant has not presented proof sufficient to raise an issue of fact on its claim that it is merely an agent of a self-insured bus company. Where there is a disclosed principal-agent relationship, the agent will not be personally bound unless there is clear and convincing evidence of an intention to be bound. Ordinarily a disclosed insurance administrator or claim adjuster would not be held liable for the obligation of the principal. The corollary of this rule is that an agent for an undisclosed principal would be liable on an incurred obligation. JP Endeavors v. Dushaj, 7 AD3d 440, 442 (2d Dept. 2004); Peekskill Community Hospital v. Graphic Media Inc. 198 AD2d 337 (2d Dept. 1993); Demidova v. North Star Insurance Agency, 7 Misc 3d 130 (App. Term 2d and 11th Jud. Dists. 2005); Laxmi Diamond PVT Ltd. v. Doppelt Greenwald Diamonds, 2008 WL 1881565 (Sup. Ct. New York Cty 2008)."

      "That the defendant's alleged principal was self-insured does not alter the rights of the injured party. Richard Denise, MD. P.C. v. New York City Transit Authority, 25 Misc3d 13 (App. Term First Dept. 2009); Spring World Acupuncture, P. C. v. NYC Transit Authority, 24 Misc3d 39 (App. Term 2009). Further, in order to be deemed a self- insurer and in compliance with New York's Financial Security Act, a self-insurer must comply with certain requisites. VTL ~312, 316, 321; See, Alleviation Supplies, Inc. v. Enterprise Rent A Car, 12 Misc3d 787 (Civ. Ct. Richmond County 2006)."

      "Here, defendant has not established that its claimed principal, Academy Bus, has qualified as a self-insurer under New York' s Motor Vehicle Financial Security Act or that it was acting as a disclosed principal for a self-insurer. Defendant has not submitted evidence as to the self-insured status of its principal, has not submitted any agreement with its principal, has not explained how, in whose name, and in what capacity it paid the claims that it contends exhausted the policy limits and why on its computer screen Academy Bus is identified as the insured."

      "Defendant relies on the conclusory and unsupported statements of a Liberty representative and photocopies of computer screens to support both of the contentions of no liabilty and exhaustion of benefits. These deficiencies are not cured by Liberty' s reply which, even if considered, raises the facts of certain contracts between Libert and/or its subsidiaries and Academy Bus and/or its subsidiaries. None ofthese agreements have been authenticated, submitted or shown to be applicable to this case and claim. Because defendant's papers raise more questions than they resolve, they are not only lacking the capacity to make a prima facie showing of entitlement to relief, they also do not raise any question of fact that would require denial of plaintiff's motion."

      "The Court now turns to the defense of exhaustion of benefits. It is true that an insurer's defense that policy limits have been reached by payments to eligible providers is not waived by a failure to issue a denial. New York and Presby. Hosp. v. Allstate Ins. Co. 12 AD3d 579 (2d Dept. 2004); See, Nyack Hosp. v. General Motors Acceptance Corp. , 27 AD3d 96 (2d Dept. 2005)."

      "However, Liberty has not presented prima facie proof that its coverage limits have been exhausted. The Liberty representative has not placed into evidence any policy, certificate or document showing coverage limits. Neither the payment history from Liberty's computer screen nor the affidavit of its representative state the dates the claims were received, the dates services were rendered nor, importantly, does Liberty explain why they were all paid after the claim of NYHMC had been submitted to and received by Liberty if the policy limits were reached by that time. There also is no listing of checks used for payment and no copies of the claims upon which payments were made."

      "Finally, notably absent from the Libert evidence is any claim that it sought any verification or other information that would have tolled its obligation to make payment or permitted Liberty to make payments to other providers. Nyack Hospital v. GMAC, 8 NY3d 294 (2007)."

      "Based on the foregoing summary judgment is granted to the plaintiff and denied to defendant. This shall constitute the Decision and Order of this Court. Submit judgment on notice."

      Comment:  Liberty is probably not out of pocket for this loss because it should be entitled to reimbursement from Academy Bus -- at least for those amounts up to the $50,000 basic PIP limits.  However, if those limits truly were exhausted by prior payments, then Liberty may find itself in a position where Academy can say that Liberty bungled the defense of this suit and that it must therefore "eat" the loss.

      In my book, Rogak's New York No-Fault Law & Practice,  I state in the section on "Exhaustion of Benefits" that an insurer may have to pay more than its PIP policy limits if it does not defend suits correctly.  This case illustrates such a situation. And therefore, plaintiff's attorney Joseph Henig ate Liberty Mutual's lunch. Is this "justice"? Of course not. But New York no-fault is not about justice. It's a game (unfortunate, but true). And the side most skilled in the rules of the game is the one with the best chance of winning.

      Larry Rogak 


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