Opinion
No. 046391/10.
2012-05-1
LENDER MEDICAL SUPPLY, INC. a/a/o Sharisse Harris, Plaintiff v. The HARTFORD INS. Co., Defendant.
Gary Tsirelman, P.C., Brooklyn, Attorneys for Plaintiff. Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, Attorneys for Defendant.
Gary Tsirelman, P.C., Brooklyn, Attorneys for Plaintiff. Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, Attorneys for Defendant.
KATHERINE A. LEVINE, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion
Papers Numbered
+-----------------------------------------------+ ¦Notice of Motion and Affidavits Annexed ¦1¦ +---------------------------------------------+-¦ ¦Notice of Cross–Motion and Affidavits Annexed¦ ¦ +---------------------------------------------+-¦ ¦Answering Affidavits ¦2¦ +---------------------------------------------+-¦ ¦Replying Affidavit of defendant ¦3¦ +---------------------------------------------+-¦ ¦Exhibits ¦ ¦ +---------------------------------------------+-¦ ¦Other: ¦ ¦ +-----------------------------------------------+
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:
This case presents raises a new twist to previous rulings that the notification requirements for verification requests, as contained in 11 NYCRR §§ 65–3.5 and 3.6, do not apply to examinations under oath (“EUOs”) that are scheduled prior to the insurance company's receipt of claim forms (“pre claim EUO”).
Defendant Hartford Insurance Co. (“defendant” or “Hartford”) seeks summary judgment based upon the assignor's failure to appear at both a pre-claim EUO, which was adjourned on consent, and an EUO noticed and scheduled subsequent to defendant's receipt of the claim which, under precedent, triggers strict regulatory time deadlines for compliance with verification requests. Plaintiff Lender Medical Supply, Inc. (“plaintiff” or “Lender”) opposes defendant's motion on the grounds that since the first scheduled EUO was adjourned on consent, defendant had to request that the assignor appear for two other EUOs, pursuant to 11 NYCRR § 65–3.6(b), before it could deny the claim, which it failed to do.
Lender provided medical equipment to its assignor on September 18, 2009. Hartford, by letter dated October 9, 2009, scheduled the assignor for an EUO to be held on November 10, 2009. On October 23, 2009, after it had sent the EUO request but prior to the scheduled date of the EUO, Hartford received the claim from plaintiff. Defendant granted the assignor's request for an adjournment by letter dated November 10, 2009 and rescheduled the assignor's EUO for November 17, 2009. After the assignor failed to appear at the rescheduled EUO, the defendant issued a denial dated December 8, 2009 based upon the assignor's failure to appear for both EUOs.
As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person ... shall ... as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same [11 NYCRR § 65–1.1(d) [Sec. I. Conditions, Proof of Claim (b) ]. Another condition to coverage under this section sets forth that an eligible person shall submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.”
11 NYCRR § 65–3.5 details the verification procedures to be followed after the insurer receives the completed application for no fault benefits (N.Y.S form N–F2). The insurance regulations provide for EUOs and IMEs as part of an insurer's “entitlement to additional verification” following receipt of a provider's statutory claim forms. Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc.3d 18, 19 (App.Term.2d Dept.2004), aff'd in pert part35 AD3d 720 (2d Dept.2006). See also, All–Boro Medical Supplies, Inc. v. Progressive Ins. Co., 20 Misc.3d 554 (Civil Ct., Kings Co,.2008); Lumbermen's Mutual Casualty Company v. Inwood Hill Medical P.C., et al, 2005 N.Y. Slip Op 51101(U), 8 Misc.3d 1014(A) (Sup.Ct., N.Y. Co.2005). An insurer may toll the 30 day period it has in which to deny a claim by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (11 NYCRR § 65.3.5). See, Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc.3d 723 (Civ Ct. Queens Co., 2004).
Where an EUO is requested as additional verification after receipt of the claim, the insurer must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc.3d 49, 51 (App.Term, 2d Dept.2008). See Bayside Rehab. & Physical Therapy P.C. v. GEICO, 24 Misc.3d 542, 546 (Civil Ct., Richmond Co.2009). If the “requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested., either by a telephone call or by mail. 11 NYCRR § 65–3.6(b). “A claim need not be paid or denied until all demanded verification is provided.” New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept.2004). See,Insurance Law § 5106(a); 11 NYCRR §§ 65–3.5(c), 65–3.8(a)(1).
Failure to submit a timely follow up request will void the tolling provisions of the time in which to submit a denial and will preclude a defendant from asserting the defense based on failure to produce requested verification, including failure to appear for a post-claim EUO. See, All–Boro Medical Supplies supra at 557; Kings Medical Supply Inc. v. Kemper Auto & Home Ins. Co., 2005 N.Y. Slip Op 51450(U), 7 Misc.3d 128(A) (App. Term, 2 & 11th Dist.2005). Therefore, in order for an insurer to predicate its denial based upon an assignor's failure to appear for a post-claim EUO, it must prove that it sent both an original and follow up request and that the injured party failed to appear for both scheduled EUOs. See, Advanced Medical, P.C. v. Utica Mutual Ins. Co., 2009 N.Y. Slip Op 51023(U), 23 Misc.3d 141(A) (App.Term, 2d Dept.2009).
The detailed and narrowly construed verification procedures contained in 11 NYCRR 65–1.1(d) and 65–3.5(d) governing EUOs that are requested after receipt of a claim do not apply to EUO demands prior to the submission of a claim form. See Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 7 Misc.3d 18, 21 (App.Term, 2nd Dept.2004). The right to an EUO prior to an insurer's receipt of the claim is “not afforded by the verification procedures and timetables,” but rather by the mandatory personal injury protection, “which is independent of the verification procedures.” Id at 21. Furthermore, these detailed verification procedures are “not amenable to application at a stage prior to the submission of a claim form.” Id, at 21.See, Prime Psychological Services, P.C. (Ortiz) v. Nationwide Property and Cas. Ins. Co., 24 Misc.3d 230 (Civil Ct., Richmond Co.2009) (an insurer not required to send EUO requests to the provider's attorney for a pre claim EUO); Bayside Rehab., supra, an insurer need not notify the assignee medical services provider of pre claim IME cut off notice).
Therefore, an insurer is not obligated to send out a follow up request after an assignor failed to appears for a pre-claim EUO.
Prime Psychological Services (Horne) v. ELRAC, 2009 N.Y. Slip Op 52579(U), 25 Misc.3d 1244(A) (Civil Ct., Richmond Co.2009). It can properly deny the claim, retroactive to the date of loss, for the assignor's failure to attend the one pre-claim scheduled IME so long as it mails the denial within 30 days of its receipt of the claim. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept.2006); Amaze Medical Supply, Inc., 2006 N.Y. Slip Op 50909(U), 12 Misc.3d 127(A) (App.Term, 2d Dept.2006); Prime Psychological (Horne), supra; All–Boro, supra.
Insurer could have properly denied plaintiff's claim upon plaintiff's failure to show up for a pre-claim EUO as a violation of a condition precedent to coverage. See Neomy Medical, P.C. v. American Transit Ins. Co., 2011 N.Y. Slip Op 50536(U), 31 Misc.3d 1208(A)(Civ.Ct., 2011).
Here, defendant cannot deny the claim based upon the assignor's failure to attend the EUO that was scheduled prior to defendant's receipt of the claim. By letter dated November 10, 2009 defendant's attorney confirmed that at the request of the assignor's attorney, the EUO was adjourned and that Hartford would provide his client with one final opportunity to appear for an EUO on November 17, 2009. Defendant's consent to the adjournment vitiated its right to count the assignor's failure to appear at the EUO as a no show. See Vitality Chiropractic, P.C. v. Kemper, 14 Misc.3d 94 (App.Term, 2d Dept.2006)(mutually agreed upon rescheduling of initial IME is not equivalent of failure to supply requested verification.)
Furthermore, once defendant received the claim from the plaintiff, it was required to adhere to statutory and regulatory scheme of verification for the processing of no-fault claims. All–Boro Medical Supplies, supra, 20 Misc.3d at 556–557. Thus, defendant was required to send a follow-up request for an EUO pursuant to 11 NYCRR § 65–3.6(b), once the assignor failed to appear for the scheduled November 17th date. Having failed to issue a follow up request, defendant could not assert, as a matter of law, the assignor's failure to appear for the EUO as its basis to deny the claim. See, All–Boro, supra at 557.
Accordingly, defendant's motion for summary judgment is denied and the case is to proceed to trial.
The foregoing shall constitute the Decision and Order of the Court.