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NY County Supreme Court Strikes Down Carrier's Fee Schedule Defense in Light of Untimely DenialPosted On Aug 30, 2011
Supreme Court, New York County (Saliann Scarpula, J.), Index no. 102610/2011
In this declaratory judgment action, defendant Encare, Inc.?moved to dismiss plaintiff Mercury Casualty Company?s (?Mercury?) complaint and Mercury cross moves for partial summary judgment.
??This action arose out of a December 27, 2007 motor vehicle accident, in which Encare?s assignor Robert Manley (?Manley?) was injured. Mercury, an automobile insurance liability carrier, issued non-party Nelson Rodriquez an insurance policy, which included a no-fault endorsement providing coverage to all eligible injured persons in the amount of $50,000. As a no-fault injured person, Manley was entitled to receive no-fault benefits for ?all necessary expenses.? Encare subsequently provided Manley with medical-treatment for his injuries and submitted a bill to Mercury for its skilled nursing services and home health care services in an amount totaling $23,760.00. To date, Mercury has paid $10,504.00.?
??After Mercury?s failure to pay all charged amounts, Encare submitted the matter to the American Arbitration Association (?AAA?) for adjudication. At a hearing, Mercury asserted that the amount paid to Encare was ?the usual and customary fee for a home health aide.? On November 3,2010, Arbitrator Lucille S. DiGirolomo ruled in favor of Encare and ordered Mercury to pay an additional $9,306.00 for services rendered by Encare to Manley, noting that Mercury?s denials of the amounts billed were not on?prescribed forms, missing the dates the billing was received by the insurance carrier, and untimely.?
??Further, the arbitrator noted that even if the denials were proper and timely, Mercury did not substantiate its claim that the reimbursement was made in accordance with the usual and customary fee for the specific services rendered. On November 19, 2010, via letter, Mercury filed a demand for Master Arbitral review. On February 1, 2010, the Master Arbitrator upheld the lower arbitrator?s ruling.?
??Thereafter, Mercury commenced this action seeking a judgment declaring that it did not owe Encare any additional monies for services rendered by Encare to its assignor Robert Manley, except for interest due on late payments and attorneys fees. In its complaint, Mercury asserted that it paid the ?reasonable geographic and customary value of the services . . .? in accordance with the Workers? Compensation fee schedule.?
??Encare now moves to dismiss the complaint, arguing that Mercury failed to state a cause of action under CPLR 3211(a)(7) because Mercury?s fee schedule defense is?precluded as a matter of law. Mercury cross-moves for partial summary judgment, arguing that it paid the usual and customary amount for services rendered in full satisfaction of its obligations and that it was not precluded from asserting a fee schedule defense.?
??Mercury alleges that Encare?s charges were excessive and inconsistent with the ?usual and customary? fees provided in the Workers? Compensation fee schedule. A no fault claim must not exceed ?the legally permissible fee.? Insurance Law 5108(c); see?Goldberg v. Corcoran, 153 A.D.2d 113 (2nd Dept. 1989); see also?Jamil M Abraham MD. P.C. v. Country Wide Ins. Co., 3 Misc.3d 130A (N.Y. App. Term, Sup. Ct. 2004).?
??To successfblly invoke a fee schedule defense for non-payment of charges, however, an insurer?s denial of a claim must be timely. See?P. L. P. Acupuncture, P. C. v. Travelers Indem. Co., 19 Misc.3d 126A (N.Y. App. Term, lst Dept. 2008). An insurer must either pay or deny a claim for no-fault vehicle insurance benefits within thirty days from the date an applicant provides proof of a claim. SeeFair Price Medical Supply Corp. v. Travelers Indem. Co.,?10 N.Y.3d 556 (2008);?Mount Sinai Hosp. v. Chubb Group of Ins. Companies,?43 A.D.3d 889 (2ndD ept. 2007). An insurer that fails timely to deny is precluded from offering a defense against payment of that claim.?Hosp. for Joint Diseases v. Travelers Prop. Cas. Inc. Co., 9 N.Y.3d 3 12 (2007).? (My emphasis added)
??A fee schedule defense does not fit into the narrow lack of coverage defense exception to the preclusion rule. See?A.B. Med. Sews. PLLC v. Prudential Prop. & Cas. Ins. Co.,?11 Misc.3d 137A (N.Y. App. Term, 2?d Dept. 2006);?Struhl v. Progressive Cas.?Ins. Co., 7 Misc.3d 138A (N.Y. App. Term, Znd Dept. 2005). A fee schedule defense, therefore, is only preserved if an insurer has complied with the thirty-day rule and issued a timely denial.?
??Here, the record shows that Mercury failed to issue a timely denial. Mercury does not deny that it failed timely to deny Encare?s claims. Instead, Mercury argues that its fee schedule defense should not be precluded because there is no First Department ruling on this specific defense. Mercury, however, has failed to demonstrate any reason for this Court to deviate from the current Appellate Term case?law in New York, which provides that a fee schedule defense is precluded if an insurer?s denial is untimely, As Mercury?s fee schedule defense is precluded, Encare?s motion to dismiss the complaint is granted.?
??As Mercury?s fee schedule defense is precluded due to a failure to comply with the thirty-day denial rule, Mercury has not asserted a valid cause of action and therefore Encare?s motion to dismiss is granted.?
2011 Medical Mileage Reimbursement Rate for New York No-Fault Accident VictimsPosted On Aug 29, 2011
Did you know that your New York No-Fault benefits will cover your travel to and from your health care providers? Because the fee schedules for No-Fault follow the New York Worker?s Compensation Board?s, the medical mileage reimbursement rates can be found on the Worker?s Compensation Website. For 2011, the mileage reimbursement rate has been set at 51 cents per mile. Make sure you are making your claim for mileage reimbursement and submitting it to your No-Fault insurance carrier each and every month.
IN ADDITION, don?t forget to record your mileage to and from any doctors the No-Fault carrier sends you for their ?Independent Medical Examination?. Yes, you are entitled to be reimbursed your mileage for those visits as well.
Don?t know how to file a mileage reimbursement claim? Don?t worry, our REQUEST FOR MILEAGE REIMBURSEMENT is free and available for you to download and use. Just click on the link below. If you have further questions, please feel free to contact us and we will be happy to assist.
Click here to view this file.
New York No-Fault OverviewPosted On Aug 27, 2011
If you or a loved one is injured in a motor vehicle accident, you may be entitled to economic benefits, commonly called ?No Fault?. The following is basic information on No Fault Benefits. If you have any questions, contact a lawyer experienced in handling No Fault matters.
What you need to know about No-Fault Claims:
New York State No-Fault is based upon Insurance Law, Regulations and the No Fault insurer?s governing policy. It is intricate and can be overwhelming.
No-Fault benefits are provided to all injured persons in a motor vehicle accident, no matter who was at fault. In general, No-Fault will cover anyone who is injured in a car, bus, or truck accident.
No-Fault coverage will not be provided in the following instances:
- If the injuries were caused as the result of an intentional act;
- if the accident occurred as a result of the injured person?s use of alcohol or drugs;
- if the accident occurred while the injured person was committing a felony;
- if the injured person was operating or was a passenger on a motorcycle;
- if the injured person or his or her spouse was driving an uninsured vehicle.
No Fault benefits include payment of medical expenses including ?medically necessary? hospital charges, surgery, dental, medical equipment, psychiatric and physical therapy. No-Fault benefits also include reimbursement for lost earnings up to a maximum of $2,000 per month. The most that will be paid in No-Fault benefits for expenses arising out of a single accident is $50,000 per person, unless the insurance coverage also provides for additional No-Fault benefits.
No Fault coverage in New York follows the vehicle. Therefore, depending on the type of accident, a No-Fault claim is filed with:
- The insurance company covering the vehicle which the injured person was driving or in which the injured person was a passenger,
- In the case of a pedestrian, the insurance company covering the vehicle that struck the pedestrian. A pedestrian struck by an uninsured vehicle may file a claim for No-Fault benefits with his own motor vehicle?s No-Fault, if the person owns an insured vehicle or, if not, from the insurance company that insures any vehicle owned by a relative living in the injured person?s household.
- The Motor Vehicle Accident Indemnification Corporation (MVAIC), if there is no other available No-Fault coverage.
To collect No-Fault benefits, notice of the accident, including injuries, must be filed within 30 days of the accident. Failure to file within this time period could result in a denial of benefits. It is important to note that just because an insurance carrier has denied your No Fault benefits it does not mean that the decision to deny your claim cannot be contested.
Other conditions must be met or benefits may be denied. These include notice to the insurer within 30 days of the accident and appearances at Medical Examinations or Examinations Under Oath, which may be requested by the insurance company.
Belil & Varriale, PC has the experience required for handling No Fault claims. We can assist you through every step of the process and answer any questions you may have. Contact me at 631-828-5552 for a free consultation.
Introduction to Healthcare ProvidersPosted On Aug 22, 2011
Do you treat No-Fault patients? Do you have stacks of unpaid or denied No-Fault claims? Are you tired of negotiating your unpaid bills and claim denials with the insurance companies?
I can help. Let my experience work for you. With over 12 years of experience representing insurance carriers, I can help you navigate through the No-Fault collection process. Call or e-mail now for a free consultation. You may be entitled to recover on denied claims that are up to six years old, including statutory interest.
- No-Fault collection legal services at little or no cost to your practice
- Representation in litigation or arbitration of your denied bills
- Tips on the top mistakes insurance carriers make in denying your claim
- Seminars on billing and claims processing
What is an IME or Independent Medical Examination?Posted On Aug 20, 2011
An IME is a medical exam (or exams) scheduled by an insurance company in order to make a determination of the nature and extent of your injuries following an accident.
If you have put in a claim against your own automobile carrier for No Fault Benefits, under your policy of insurance, the company has the right to schedule as many medical examinations as they feel is necessary.? Typically, the company will schedule you to see doctors who practice in areas similar to those doctors you are seeing.? For instance, if you are getting treatment from a chiropractor, the company will schedule you for an independent medical examination with a chiropractor.? If you have a broken bone, the insurer will send you to an orthopedist.? You must cooperate with the insurance company and attend these appointments.? If you do not, you may risk losing your No Fault benefits.
The same holds true for the insurance carrier for the person you may be suing in an accident case.? As you are claiming injuries, the carrier has the right to get an objective medical opinion in order for it to try to put a value on your claim.
It?s important to know that IMEs are not independent.? These doctors are hired through vendors contracted with the insurance company.? The vendors are like middle-men, who provide IME doctors to all of the different insurance carriers in New York. In many cases, the doctor?s sole source of income is performing IMEs.? Does that sound independent to you?
You should also note that these doctors are not going to treat you for your injuries.? In fact, just the opposite is true.? Since they rely on a stream of work from the insurance company, they will try to find ways to report to the carrier that you do not need further treatment or that your injuries are not as bad as you claim them to be.
Keep these items in mind if you are scheduled for an IME:
- Let your attorney know when and where your appointments are scheduled
- Write down all of your symptoms to take with you so you don?t forget.This list should? include your physical limitations and where your pain is.
- Ladies, refrain from wearing shoes with heels. Doctors will make note of what you wear to the examination.? You do not want the doctor to make a judgment call about your condition based upon what you decided to wear on your feet.
- Don?t exaggerate your symptoms to the doctor.? You risk damaging your claim.
- The doctor will ask you questions regarding the accident and your injuries.? Be brief and to the point.? No need to elaborate off topic.? Again, this doctor is not treating you.
- Take written notes of what time the examination starts and what time it ends.? Note what types of tests the doctor performed on you.? Give your attorney this information.
- Do not allow the doctor to give you invasive tests such as X-Rays or EMGs.
- Keep in mind that every move you make is being observed, including walking and getting on and off the examination? table.
If you have any questions, talk to your attorney.
Governor Paterson Vetoes Bill Providing No-Fault Coverage for Drunk DriversPosted On Aug 19, 2011
New York State Governor David Paterson has vetoed legislation to extend no-fault insurance benefits to drunk drivers who get injured in automobile accidents.
The bill, S.8294-A, would have repealed New York?s Alcohol Exclusion law, which allows insurance companies to deny this coverage to motorists who drive while under the influence.
Currently, New York?s basic no-fault coverage does not apply to anyone who drives a car while drunk if the insurer can prove that the accident was a cause of intoxication.? However, the intoxicated operator?s no-fault coverage will extend to passengers of DWI violators and pedestrian victims.
The Independent Insurance Agents and Brokers of New York, a trade group, had recommended that Paterson veto the bill, arguing that it would lead to increased premiums.
Collect These Documents to Give to Your Attorney after a Car AccidentPosted On Aug 15, 2011
If you have been involved in a car accident certain documents are important for your attorney to review in order to develop a full understanding of your case and your chance for a recovery. The following is a list of documents that your attorney will want to see during the course of your case.
1.? Your Insurance Declarations Page and Endorsements.? If you have an automobile insurance policy, your attorney will want to see a copy of it to determine the amount of No Fault benefits you are entitled to.? In addition, the Declarations Page will show whether you have Un/Underinsured Motorist Benefits available to you.
2.? Information Exchanged at the Accident Scene.? Typically, names and telephone numbers are exchanged between the parties to an accident while they are still at the scene. If you have this information, even if you have already contacted the other parties involved, make sure to provide it to your attorney.
3.? Information Provided by the Police at the Accident Scene.? In many cases, the police are called to a scene of an accident. In those situations, they will prepare a field report with a Central Complaint Number on it.? You will be given a copy of the field report.? An accident report will be drafted by the responding officer.? The accident report which often includes a diagram of where the various cars or pedestrians were at the time of the accident. The report will also include the on-scene officer?s initial impressions of the cause of the accident. This information is crucial in allowing your attorney to develop a total understanding of your case. Provide your attorney will a copy of the accident report or anything else drafted by the police. If you do not have a copy of the accident report, your attorney will be able to obtain one on your behalf.
4.? Tickets given to you related to the accident.? If you have been given a ticket in relation to the accident, make sure to give your attorney a copy.
5. Photographs.? If your car was damaged in an accident, it is a good idea to take pictures of the damage. If you did not take pictures, a representative of the insurance company may have. If you have pictures in your possession, provide them to your attorney.
6.? Statements.? There is a chance, when you are involved in a car accident, that you may be contacted by a representative of your automobile insurance company or the other vehicles insurance company. Often, the insurance adjuster will want you to give a statement from you about the accident. If you were contacted, you have a right to have a copy of any statement you gave. If you have a copy, give it to your attorney. If you do not have a copy, let your attorney know that you gave a statement so he or she can obtain a copy of it.
7.? List of Names and Addresses of all Medical Providers.? If you are involved in a car accident, and have sustained physical injuries for which you sought medical care and attention, your attorney will need copies of your medical records so that he or she can see what your diagnosis is and get a sense for how long it will take you to recover from your injuries. Provide your attorney with the names and addresses of all of your health care providers and if you have them, copies of any medical records that you have.? Your attorney will be able to obtain the records, once you have provided authorization, on your behalf.
8.? Pay Records.? If you have lost time from work as a result of a car accident, your attorney may be able to obtain compensation for your lost wages either through your No Fault provider or through the other vehicle?s insurance company. In order to do so, your attorney will need to calculate how much money you have ?lost? as a result of the car accident. Showing your attorney your pre-accident earnings and your post-accident earnings will help your attorney make this calculation.
AG Cuomo Goes After AIG Executive Compensation and Lavish Event ExpensesPosted On Aug 12, 2011
Thanks to the Insurance Journal?s Andrew G. Simpson for this article:
During recent Congressional hearings into the financial crisis at American International Group (AIG) and the resulting $85 billion federal bailout for the financial giant, Rep. Elijah Cummings, D-Md., asked former AIG CEO Martin Sullivan whether, given the firm?s troubles, he was interested in forfeiting any of the considerable compensation he received from AIG.
New York Attorney General Andrew Cuomo has begun an investigation that he hopes will force AIG?s board of directors to recover ?all past unreasonable expenditures? including some compensation paid to executives and any funds spent on expensive retreats. Cuomo alleges that payment of these sums while the company was on the brink of filing for bankruptcy violates a New York law on fraudulent conveyances.
?The party is over,? Cuomo said in New York. ?No more hunting trips, no more luxury resorts. They are not going to have the party and leave the hangover for the taxpayers.?
Cuomo has written to AIG?s board demanding that the company cease the ?improper and extravagant expenditures which exploit the taxpayers of this nation? and institute new policies to prevent future abuses.
?In the last several months, as AIG was teetering toward bankruptcy, and operating with unreasonable small capital, AIG nevertheless made numerous extraordinary expenditures in the form of executive compensation payments, junkets and perks for its executives,? Cuomo charged.
As examples, Cuomo cited a cash bonus of more than $5 million and a golden parachute worth $15 million ? on top of a $1 million annual salary? paid to former CEO Sullivan, who was ousted in March as losses on troubled credit default swap products sold by its London-based AIG Financial Products unit began to multiply.
Cuomo also criticized $34 million in bonuses paid to Joseph Cassano, president of the London operation and the person in charge of the credit default swaps that precipitated the company?s near bankruptcy. Cassano was fired in February but in addition to getting the $34 million, he was awarded a $1 million a month consulting contract when he left.
Cuomo further alleged that AIG has spent hundreds of thousands of dollars for ?luxurious retreats for its executives, including an overseas hunting party and golf outing? since the federal bailout.
Cuomo ordered AIG to ?review, rescind and recover all improper payments where appropriate? and provide his office with an accounting of all executive compensation including but not limited to ?bonuses, stock options, severance payments, gratuities, benefits, junkets, and any and all other perks? from Jan. 1, 2007 to date.
He warned that if the board does not take these actions, his office will do so.
?We believe these expenditures and payments, made in the absence of fair consideration, violated New York law,? Cuomo wrote.
In response, AIG issued a statement in which it vowed to fully cooperate with Cuomo?s office:
?On October 10, we issued a clear directive ending all activities that are not essential to the conduct of our business. We will continue to take all measures necessary to ensure that these activities cease immediately.?
The statement did not specifically address executive compensation.
In an Oct. 8, statement, Edward Liddy, current AIG CEO, pointed out that one expensive meeting that Congressional members blasted as an ?executive retreat? at a fancy California resort and spa was not actually for AIG employees or executives but for top independent life insurance agents. The meeting was planned months before the government?s loan to AIG, Liddy explained.
At that time, Liddy assured Treasury Secretary Hank Paulson that AIG is ?reevaluating the costs of all aspects of our operations in light of the new circumstances in which we are all operating.?
The man who succeeded Sullivan as CEO in March, Robert Willumstad, told Congress he thought such meeting expenditures were inappropriate under the circumstances and he would have stopped them had he known about them.
Sullivan came under heated questioning during the Congressional hearings when he acknowledged that his 2007 compensation was made possible despite the losses at AIGFP because he recommended that those AIGFP losses be excluded from consideration in calculating the bonuses for all top executives.
Sullivan also defended the $1 million a month consulting contract awarded Cassano after he was terminated. ?I wanted to retain the 20-year knowledge that Mr. Cassano had,? Sullivan told lawmakers.
Lawmakers dismissed Sullivan?s explanation. ?It appears to me that he (Cassano) single-handedly brought AIG to its knees and is the reason taxpayers had to step in,? said Rep. John Sarbanes, D.- Md.
Willumstad, the former board chairman who served as CEO from March until the government loan in mid-September, announced when he left that he would forfeit an estimated $22 million severance payment because he was unable to implement a restructuring plan he developed.
Meanwhile, AIG said it is focused on selling certain assets and taking other actions ?necessary to repay the Federal Reserve loan and emerge as a vital, ongoing business.?