S M Supply Inc. v. State Farm Mut. Auto. Ins.

19 Citing cases

  1. Capio Med., P.C. v. Progressive Cas. Ins. Co.

    2005 N.Y. Slip Op. 50526 (N.Y. App. Term 2005)

    The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs "as may reasonably be required" ( 11 NYCRR 65-1.1 [d]). With regard to claims submitted on or after April 5, 2002, an insurer's request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules ( see 11 NYCRR 65-3.5 [b], [e]; S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]). Additionally, "[c]onsistent with the Insurance Department's interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect" ( S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra; see Star Med. Servs. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]).

  2. Eagle Chiro., P.C. v. Chubb Indem. Ins.

    2008 N.Y. Slip Op. 50525 (N.Y. App. Term 2008)

    This appeal by defendant ensued. The Endorsement, which was required to be included in automobile insurance policies issued or renewed after April 5, 2002, reduced the time within which claims were to be submitted to insurers after the date services were rendered from 180 days to 45 days (Insurance Department Regulations [11 NYCRR] § 65.12 [e], now Insurance Department Regulations [ 11 NYCRR] § 65-1.1 [b]; see S M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists 2004]). Pursuant to Insurance Law § 3425 (a) (8), the policy period for newly issued and renewed automobile insurance policies is one year ( see also Rosner v Metropolitan Prop. Liab. Ins. Co., 96 NY2d 475).

  3. A.B. Med. Servs. PLLC v. Allstate Ins. Co.

    2006 N.Y. Slip Op. 50474 (N.Y. App. Term 2006)

    However, in order to assert the defense of failure to appear for scheduled EUOs, the "insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect" ( S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130 [A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]; see also Capio Med., P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 129 [A], 2005 NY Slip Op 50526[U] [App Term, 2d 11th Jud Dists]; Star Med. Servs. P.C. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]).

  4. Careplus Med. v. Travelers Home

    2005 N.Y. Slip Op. 50648 (N.Y. App. Term 2005)

    Finally, it is noted that while verification EUOs are authorized by an amendment to the Insurance Regulations effective April 5, 2002 ( 11 NYCRR 65-1.1 [d]), because the Insurance Department "bases the revised regulations' applicability on the policy endorsement in effect when the claim is filed, to take advantage of the . . . [revision], an insurer must have the revised prescribed endorsement in new or renewed policies issued on or after that date" ( Ocean Diagnostic Imaging P.C. v. State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24498 [App Term, 2d 11th Jud Dists]; S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]). While plaintiff's claims were submitted subsequent to April 5, 2002, defendant's submissions failed to establish that the insurance policy, in effect when the EUOs were sought, contained an endorsement authorizing such verification ( see Star Med. Servs. P.C. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]; S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra).

  5. Eagle Surg. v. Progressive

    21 Misc. 3d 49 (N.Y. App. Term 2008)   Cited 19 times

    Although there were subsequent amendments to Regulation 68-C in 2004 and 2007, the deleted language was never reinstated. The Insurance Department's decision to delete the foregoing phrase and its subsequent decision not to reinstate such deleted language is a clear indication that such phrase's "exclusion was intended" ( Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285; cf. S M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists 2004] [decided under the April 5, 2002 regulation]; contra All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008]; All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 17 Misc 3d 950 [Civ Ct, Kings County 2007]). Notwithstanding the foregoing, insurers may not employ red tape dilatory practices and schedule EUOs in an unreasonable manner.

  6. Rigid Med. of Flatbush v. N.Y. Cent. Mut. Fire

    2006 N.Y. Slip Op. 50582 (N.Y. App. Term 2006)

    The revised insurance regulations, effective on April 5, 2002, which are applicable herein, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs "as may reasonably be required" ( 11 NYCRR 65-1.1 [d]). However, in order to assert the defense of failure to appear, "the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect" ( S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130 [A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]; see also Star Med. Servs. P.C. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]; Capio Med., P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 129 [A], 2005 NY Slip Op 50526[U] [App Term, 2d 11th Jud Dists]). In the instant case, defendant's submissions failed to establish that the insurance policy contained an endorsement authorizing EUOs.

  7. A.B. Med. Servs. PLLC v. State-Wide Ins. Co.

    2005 N.Y. Slip Op. 50785 (N.Y. App. Term 2005)

    Defendant, however, is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim ( see Matter of Metro Med. Diagnostics v. Eagle Ins. Co., 293 AD2d 751). In opposition to plaintiffs' motion for summary judgment, and in support of its defense of fraud, defendant submitted the affirmation of its attorney who lacked personal knowledge of the investigation ( Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92, supra), and unsworn investigative reports which did not constitute competent proof in admissible form ( S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]). While hearsay evidence may be admissible in opposing a motion for summary judgment, there must be an acceptable excuse for failure to tender the proof in admissible form ( see Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1068; Allstate Ins. Co. v. Keil, 268 AD2d 545), which defendant has failed to proffer.

  8. Ocean Diag. Imaging P.C. v. Commerce Ins.

    2005 N.Y. Slip Op. 50642 (N.Y. App. Term 2005)

    This court has repeatedly held that a letter "which merely informs a claimant that a decision on the claim is delayed pending an investigation and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period" ( A.B. Med. Servs. PLLC v. Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d 11th Jud Dists]; see e.g. Melbourne Med., P.C., 4 Misc 3d at 94). We further note that, while examinations under oath (EUOs) are available to an insurer under the revised regulations (effective April 5, 2002) which provide for them pursuant to the verification protocols, they are authorized only as to claims filed after that date and pursuant to a revised mandatory endorsement contained in new or renewed policies issued on or after April 5, 2002 ( e.g. S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th 10th Jud Dists]). Thus, under New York's No-Fault Law, defendant's EUO requests, which issued for claims filed before the revised regulations' effective date ( e.g. Capio Med., P.C. v. Progressive Cas. Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 50526[U] [App Term, 2d 11th Jud Dists]; SM Supply Inc. v. State Farm Mut. Auto. Ins. Co., 5 Misc 3d 128[A], 2004 NY Slip Op 51250[U] [App Term, 9th 10th Jud Dists]) were ineffective to toll the claim determination period.

  9. Star Med. Servs. P.C. v. Eagle Ins. Co.

    2004 N.Y. Slip Op. 24482 (N.Y. App. Term 2005)   Cited 2 times

    However, "[c]onsistent with the Insurance Department's interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect" ( S M Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130 [A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th 10th Jud Dists 2004]). In the instant case, defendant's submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs ( see S M Supply Inc. v. Lancer Ins. Co., 4 Misc 3d 131 [A], 2004 NY Slip Op 50695[U] [App Term, 9th 10th Jud Dists 2004]).

  10. Ocean Imaging v. State Farm

    9 Misc. 3d 73 (N.Y. App. Term 2005)   Cited 5 times

    Consequently, under the applicable prior regulations (11 NYCRR 65.12 [e]), defendant had no right to request an EUO ( see Kings Med. Supply Inc. v. GEICO Ins., 4 Misc 3d 138[A], 2004 NY Slip Op 50904[U] [App Term, 2d 11th Jud Dists 2004]) and, thus, such request did not toll the 30-day period in which an insurer must act upon a claim or be precluded. Even if the claim had been submitted subsequent to the effective date of the new regulations, "[c]onsistent with the Insurance Department's interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect (see Circular Letter No. 9 [2002])" ( SM Supply v. State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th 10th Jud Dists 2004]). Thus, an insurer may not, in any event, invoke the new regulations as a basis to defend the claim upon an assignor's failure to comply with its EUO requests where its opposition papers fail to prove that it had issued an endorsement, effective April 5, 2002, that contained the new regulation ( see SM Supply v. Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th 10th Jud Dists 2004]).