Med. Select, P.C. v. Allstate Ins. Co.
| Decision Date | 24 December 2013 |
| Citation | 42 Misc.3d 851,979 N.Y.S.2d 472,2013 N.Y. Slip Op. 23446 |
| Parties | MEDICAL SELECT, P.C. a/a/o Jose Repetto, Yolanda Menendez, Mestanza Repetto, Plaintiff(s), v. ALLSTATE INSURANCE COMPANY, Defendant(s). |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Garden City, Attorneys for Plaintiff.
Stern & Montana, LLP, New York City.
Defendant Allstate insured a vehicle owned by a non-party, Narciso E. Mestanza. On July 30, 2010, the insured vehicle was involved in an auto accident.
Plaintiff, Medical Select, P.C., provided medical services to three individuals who were injured in the accident. Following plaintiff's submission of timely assigned claims for no-fault benefits, defendant Allstate denied plaintiff's claims. It did so on the ground that plaintiff's assignors had not submitted a required written notice within 30 days of the accident date. The validity of that late notice defense was the sole issue submitted for trial.
Regulatory background
In pertinent part, applicable no-fault regulations provide that “no action shall lie” against an insurer for no-fault benefits unless certain “condition [s] precedent” are satisfied ( see11 NYCRR 65–1.1[d] ). They include two “independent” notice requirements:(1) receipt of “written notice ... given by, or on behalf of, each eligible injured person” regarding “the time, place and circumstances of the accident,” and (2) receipt of written “proof of claim” for health services expenses from “the eligible injured person or that person's assignee or representative.” See New York & Presbyterian Hosp. v. Country–Wide Ins. Co., 17 N.Y.3d 586, 589–90, 934 N.Y.S.2d 54, 958 N.E.2d 88 (2011), quoting11 NYCRR 65–1.1(d).
The two notice requirements are “separate and distinct.” New York & Presbyterian Hosp. v. Country–Wide Ins. Co., supra. Failure to satisfy either one can justify denial of a provider's claim. Id.
Different time limits apply to each requirement. First, the written “notice of accident” requirement generally mandates submission of that notice “as soon a reasonably practicable, but in no event more than 30 days after the date of the accident.” See11 NYCRR 65–1.1(d). The “proof of claim” requirement, in turn, generally mandates submission of a no-fault claim by the provider “as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered.” See11 NYCRR 65–1.1(d).
The current time limits for submission of no-fault claims were enacted in 2001, when the former time limits were drastically reduced. See New York & Presbyterian Hosp. v. Country–Wide Ins. Co., supra; see also Hempstead Pain & Med. Servs., PC v. General Assur. Co., 13 Misc.3d 980, 821 N.Y.S.2d 841 (Dist. Ct. Suffolk Co.2006). “Specifically, the notice of accident requirement was reduced from 90 days to 30 days, and the time to provide proof of claim was reduced from 180 days to 45 days ... in order to, among other things, prevent the fraud and abuse ... linked to the lengthy time frames.” New York & Presbyterian Hosp. v. Country–Wide Ins. Co., supra. At the same time, however, the standards for excusing late filings were “relaxed” to allow for consideration of “ bona fide claims which were subject to bureaucratic delay or mishap” or other “reasonable excuse” for a delay. See Hempstead Pain & Med. Servs., PC v. General Assur. Co., supra.
Accordingly, under presently applicable regulations, both time limits are subject to a significant “safety valve” provision. See Long Beach Med. Center v. Landmark Ins. Co., index no. 8924/11, decision dated February 16, 2012 (Dist. Ct. Nassau Co.). Pursuant to the plain wording of the current regulation (11 NYCRR 65–3.3[e] ), “[w]hen an insurer denies a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.” Furthermore, an insurer must “establish standards for review of its determinations that applicants have provided late notice of claim or late proof of claim” and must do so “based on objective criteria.” 11 NYCRR 65–3.5( l ).
Other provisions in the regulations serve to facilitate the insurer's receipt of timely written notice “whenever the insurer receives notice of claim by telephone” (11 NYCRR 65–3.4[a] ). The insurer in such a case “shall request the name, address and telephone number of the applicant ... along with reasonably obtainable information regarding the time, place and circumstance of the accident which will enable the insurer to begin processing the claim.” Id. Upon receipt of such information, the insurer must send out no-fault application forms (NF–2) to potential claimants, and if the forms are not returned within 30 days of the date of the accident, it must follow-up by sending the forms a second time ( see11 NYCRR 65–3.4[b]; 65–3.6[a] ).
The latter requirement obviously contemplates the frequent submission and consideration of late claims from injured parties. When considered together with the “safety valve” provision requiring late notice advisories and the application of objective standards for consideration of late claims, the current regulations strike a careful balance between the general time limits for claim submissions and the need for individualized consideration of injured parties' late claims for no-fault benefits.
Facts adduced at trial
According to the proof adduced at trial, Allstate initially received notice of the accident from its insured within one week of the accident date. It was apparently advised, at that time, that three other individuals (plaintiff's assignors) had been injured in the accident.
In accordance with applicable no-fault regulations (11 NYCRR 65–3.4[b] ), Allstate thereupon mailed out blank NF–2 applications for no-fault benefits to the three individuals on August 8, 2010. No responses were received within the first 30 days after the mailings.
The following month, on September 7, 2010, Allstate once again mailed out blank NF–2 applications for no-fault benefits to the same three individuals. This time, all three filled the forms out, listing details of the accident and their injuries. All three signed the forms, each one dated September 20, 2010. Allstate received the forms approximately two weeks later, on October 5 and 6, 2010.
Following receipt of the signed NF–2's, Allstate took no immediate steps to advise plaintiff's assignors that their NF–2's had been submitted too late, nor did it advise them that a late submission could be excused. Instead, it was not until Allstate began receiving assigned claims from the plaintiff provider that it first asserted, in its timely denials of the provider's claims, that it was refusing to pay for necessary treatments due to the assignors' failure to give written notice to defendant within 30 days of the accident. Each of the denials includes the following explanation: Using almost identical language, the denials added:
Defendant's proof at trial rests principally upon the undeniable fact that the NF–2s from plaintiff's assignors were not received within 30 days of the accident date (July 30, 2010). The NF–2s, in fact, were received in early October 2010—approximately five weeks too late. No explanation for the delay was provided by plaintiff's assignors as part of their late NF–2 submissions. Nor does plaintiff offer any excuse or explanation as part of the proof adduced at trial.
Nevertheless, it remains defendant's burden to establish its late notice defense in accordance with the regulations governing consideration of late...
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...care services provides are exempt from the written 30 day notice of accident requirement”). See also, Medical Select, P.C. v. Allstate Ins. Co., 42 Misc.3d 851, 852, 979 N.Y.S.2d 472 (Dist.Ct., Nassau Cty.2013) (the two “notice” requirements are “separate and distinct” and different time li......