OUTCOME: Judgment for Long Island Insurance Company
Israel Greenfield was an additional insured under an auto policy issued to his father, Morris Greenfield. Israel, a man in his 50s, was crossing a street when he was struck and seriously injured by a ...hit and run driver. During Israel's examination under oath (EUO), he was asked where his father Morris lives, and Israel gave an address a few blocks away. Investigators later discovered that Morris actually died 4 years before the accident and that Israel was renewing the policy every 6 months in his father's name. Long Island Ins. Co. brought this action to have the policy declared void. The Court held that an insurance policy cannot be renewed after the death of the named insured, and that Israel Greenfield committed fraud by renewing the policy in his father's name several times without notifying the insurer of the death of his father. In addition, it was fraud for Israel Greenfield to testify under oath that his father "lives" at a certain address when in fact he had been dead for 4 years.
Insurance
Adam Marigliano LMT a/a/o Jennifer Rivadeneyra v. State Farm Mutual Auto Ins. Co,
Jan 02, 2008
OUTCOME: Judgment for defendant
In this no-fault benefits suit, plaintiff, a licensed massage therapist (LMT) sued for massage therapy rendered to the assignor after an auto accident. At trial, an expert chiropractor testified for St...ate Farm that, based on an IME, the treatment was not necessary. The LMT took the stand and said massage was helpful for subjective complaints of pain, but that he could not recall treating this particular patient. The Court ruled that "A licensed massage therapist is not eligible to receive no-fault benefits," citing an Appellate Division, 3d Dept case. The Complaint was dismissed.
Insurance
Staten Island Chiropractic Assoc PC a/a/o Regina Bellamy v. Long Island Ins. Co,
Apr 19, 2006
OUTCOME: judgment for defendant
In this no-fault benefits lawsuit, plaintiff medical provider moved for summary judgment on a suit for
$8,388.13 in bills. Plaintiff's only proof that the bills were
mailed was an affidavit from the ...provider that "each of the claims
for payment were timely submitted in the ordinary course of business
to defendant."
The District Court of Nassau County denied summary judgment to the
plaintiff, and plaintiff appealed. The Appellate Term affirmed.
"Such an assertion failed to prove a standard office practice or
procedure designed to ensure that items are properly addressed and
mailed. Although plaintiff proved a claim denial form used by
defendant which denied 'all' of plaintiff's claims, the form admitted
receipt of no specific claim and cannot be construed to concede that
defendant received the specific claims herein at issue."
Comment: While I have not done an exhaustive search on the issue,
this is the first decision of which I am aware that specifically says
that an NF-10 which generally denies all bills does not constitute
proof that any particular bill was received.
Insurance
A.B. Medical Services PLLC v. Commercial Mutual Insurance Co.
Mar 27, 2006
OUTCOME: Judgment for defendant
This was a no-fault benefits suit originally brought in Civil Court, Kings
County.
We had opposed plaintiff's Motion for summary judgment on two grounds: (1) that the NF-
10s, denying the bills fo...r lack of medical necessity, created an
issue of fact which required a trial; and (2) that the insurance
policy had been fraudulently procured as part of a "rate jumping"
scheme using a false address to buy the policy at a lower premium.
The Appellate Term first found that the NF-10s were defective.
Although they were issued timely, they failed to set forth enough
details about why the treatment at issue was not medically necessary.
Then the Court turned to the rate-jumping defense. First the Court
explained the general rule that insurance policies cannot be
cancelled retroactively, even if it is later discovered that the
policy was procured through fraud or misrepresentation.
This rule, stated the Court, protects innocent third parties who may
be injured due to the insured's negligence.
However, the Court went on, the issue in this case is whether a
health care provider is an innocent third party in a case where the
policy was fraudulently procured.
"We hold," ruled the Court, "that only innocent third parties who are
injured are protected, and not a health care provider who deals with
the assignor-insured at its peril in accepting an assignment of the
insured's no-fault benefits."
The defense that an insurance policy was procured by fraud is not
waivable, is exempt from the "30 day rule," and "may be asserted as
against plaintiffs-providers in this action seeking to recover
assigned no-fault benefits."
The Court concluded by stating that to
the extent that its prior decisions may be inconsistent with this
ruling, they "should not be followed."
The decision of the three-judge panel was unanimous.
This is, to say the least, a watershed event in the defense of no-
fault fraud. Heretofore, insurance carriers were completely at the
mercy of medical providers who treated "innocent" victims in claims tainted by
fraud. Unless the insurer could prove that the assignor
was a party to the fraud, only those defenses based on medical issues
were available to the insurer, and then only if the denials were
timely and proper.
Car accident
Ponomarev v. Oates et al
May 05, 2005
OUTCOME: Other attorney disqualified
Plaintiffs, the driver and passenger of an auto involved in a
collision with defendants, were both represented by the same attorney,
Daniel Rausher. My firm, representing defendants, moved to disqual...ify
the plaintiffs' attorney and to preclude him from receiving any fees
for the work he had done on the case, on the grounds of an
impermissible conflict of interest.
Plaintiff Olga Ponomarev, the passenger, submitted an affidavit in
which she stated that she was told she had a right to bring a claim
against the driver, Vladimir Ponomarev, that she was told this created
a conflict, that she was advised to seek other counsel, that she
refused, and that she chose to waive the conflict because she did not
want to sue her husband. Vladimir submitted an affidavit stating that
he was a witness to Olga's choice to waive the conflict.
The Court ruled that "Representation by one attorney of both the
passenger and driver in suit involving a motor vehicle accident
violates the Code of Professional Responsibility Disciplinary Rule 105
(a) and in fact, creates a conflict of interest as a matter of law.
DR 105(a) states that a lawyer shall decline proferred employment if
the exercise of independent professional judgment on behalf of a
client will be or is likely to be adversely affected by the acceptance
of the proferred employment, or if it would be likely to involve
lawyer in representing different interests."
Even if the clients consent to joint representation despite the
conflict, "the law invalidates any consent given by clients, in cases
where a conflict of interest exists... if a disinterested attorney
would advise the client against giving consent to continued
representation..."
"By not suing the driver, a potential tortfeasor, who could have and
should have been sued, the passenger [runs] the risk of non-recovery
if there was a verdict in defendant's favor."
Further, "an attorney who violtes DR 105 is not entitled to legal fees
for any services rendered."
In this case, while Olga consented to joint representation, Vladimir's
affidavit does not state that he consented to the conflicting
representation, nor was his retainer submitted into
evidence. "Nothing indicates that he was advised of the risks and
benefits involved and the conflict created. The very same conflict
which Olga is subject to applies equally to Vladimir."
The accident report "indicates that at least one version of the
accident alleges that the accident was caused by Vladimir's sudden
lane change. Consequently, it appears that Vladimir at trial might
bear responsibility for this accident. Accordingly, a disinterested
attorney reviewing the accident report would have advised Olga to
assert a claim against Vladimir."
Our Motion was granted, plaintiffs' attorney was disqualified, and he
can't get paid regardless of the outcome.
Insurance
Cortez v. Manhattan Bible Church
Jan 27, 2005
OUTCOME: Summary judgment for defendant
In this automobile accident case, we defended the owner of one of the vehicles involved. We moved for summary judgment on the grounds that plaintiff's injuries were not serious enough to meet New York'...s no-fault threshold. The Supreme Court of Bronx County granted our Motion, and the Appellate Division, First Department, affirmed, holding that disc herniations, standing alone, without proof of disability, does not meet the no-fault "serious injury" threshold.
Insurance
Park v. Long Island Insurance Company
Dec 20, 2004
OUTCOME: Modification of judgment
The plaintiff Park was injured in a motor vehicle accident in a car insured by the defendant. The plaintiffs submitted a claim for no-fault benefits to the defendant. The defendant sought to examine th...e injured plaintiff under oath in accordance with the terms of the insurance policy, but he refused to submit to the examination unless his wife was allowed to be present. In response, the defendant denied the plaintiffs' claim for no-fault benefits on the ground that the plaintiffs failed to cooperate with its investigation. The plaintiffs commenced this action for a judgment declaring the parties' rights under the insurance policy. The Supreme Court concluded that the plaintiffs' failure to cooperate with the insurer constituted a material breach of the policy. The Appellate Division reversed, holding that
"The Supreme Court correctly concluded that the plaintiffs had “no right to be present at each others' examinations since the examinations were requested pursuant to an insurance policy and not as part of a legal action. Nevertheless, we conclude that the defendant failed to sustain its heavy burden of demonstrating that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation so as to warrant denial of the claim. Accordingly, the Supreme Court should have directed the insurance company to reschedule the injured plaintiff's examination under oath."
Therefore, although the insurance company was not permitted to disclaim coverage, it did uphold the insurance company's right to insist the the claimant submit to an EUO without having his wife present, as he demanded. The reason for this was to avoid collusion between the husband and wife by hearing each other's testimony.
Insurance
Westbury Medical Care v. Lumbermens Mutual Insurance Company
Aug 23, 2004
OUTCOME: Judgment for defendant
Plaintiff, a medical provider, sued defendant for no-fault benefits. In the course of discovery, plaintiff demanded to see the insurer's entire no-fault file. Defendant objected on the grounds that the... file contained confidential medical information about the patient, including records from other doctors not related to the plaintiff's claims. That Court held that the insurer's claims file contained confidential patient information protected by HIPAA, and that therefore the plaintiff must present a HIPAA-compliant authorization in order to see the entire file. This is an important decision which prevents medical providers from conducting "fishing expeditions" through an insurer's claims file.
Insurance
National Continental/Progressive Ins. Co. v. Allied Central Ambulance Service
Mar 29, 2004
OUTCOME: Judgment for plaintiff
Plaintiff, an auto insurer for defendant, disclaimed coverage for an underlying lawsuit in which a patient who was being taken out of his home in a wheelchair fell down a flight of stairs in his house.... Plaintiff disclaimed because its auto policy for the ambulance company does not cover accidents that do not involve the ambulance. The ambulance company argued that the "loading and unloading" language in the policy applied because the patient was in the process of being taken into the ambulance at the time he fell down the stairs of his house. Plaintiff won summary judgment in Supreme Court; the Appellate Division affirmed, holding that "Supreme Court correctly declared that the plaintiff insurer is not obligated to defend and indemnify it for injuries caused by the alleged negligence of its ambulette attendant, in causing or permitting a wheelchair-bound patient to fall down a flight of stairs inside her home since the accident was not related to the use of the appellant's ambulette."
Slip and fall accident
Molnar v. L.I. Sports World Ltd and Continental Properties
Nov 20, 2003
OUTCOME: summary judgment for defendant
Plaintiff fell on the surface of a roller hockey rink because, he
claimed, his skate wheel became lodged in an indentation in the
playing surface, causing his ankle to twist and break. He sued the
r...ink operator (our client) and the landlord. We moved for summary
judgment, as did the landlord.
Part of our summary judgment argument was based on the emergency room
notes, which quoted the plaintiff as saying that he was standing
still, having a conversation with a teammate when another skater
knocked him down. The Court rejected this argument because we could
not obtain an affidavit from the nurse who wrote the notes.
We also argued that plaintiff had no evidence whatsoever that there
was a defect in the rink surface, or that the operator had notice of
same. Plaintiff countered this with an argument that the operator
did not maintain its records of surface maintenance. But the rink
went out of business a year after the accident, and plaintiff did not
bring this lawsuit until 2 1/2 years after the accident. By then,
the operator had destroyed his records.
Plaintiff submitted the affidavit of an expert who speculated that
the rink was not maintained properly. But the Court rejected this
opinion as pure speculation, as the expert had never seen the rink,
did not know the details of the rink's construction and maintenance,
and had no basis to give an opinion as to whether the operator had
carried out the requisite maintenance.
Because plaintiff could not present any proof in admissible form as
to the existence of a defect in the rink, nor as to any negligence in
the operator's maintenance of the rink surface, the operator and
landlord were granted summary judgment.
