Lenox Hill Radiology & MIA, P.C. v Government Empl. Ins. Co.
Annotate this CaseDecided on September 17, 2009
Civil Court of the City of New York, Bronx County
Lenox Hill Radiology and MIA, P.C. a/a/o REGINA ALSIS, Plaintiff,
against
Government Employees Insurance Co., Defendant.
8624/08
Plaintiff- Edward A. Cespedes, Esq. from Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC
Defendant- David H. Wahab, Esq from Law Offices of Teresa M. Spina
Elizabeth A. Taylor, J.
This matter was scheduled final for trial. The issue to be determined at trial is whether the defendant properly denied the plaintiff's request for no fault benefits for the subject automobile accident. Specifically, the parties stipulated to the facts and agreed that the sole issue to be decided is whether the defendant must produce proof that the subject insurance policy contained a Mandatory Personal Injury Protection Endorsement (hereinafter referred to as "endorsement") requiring claims to be submitted within 45 days after the date of service by the provider. The parties agreed to adjourn the matter to submit briefs on this critical issue of law, and stipulated to the following relevant facts:
1) plaintiff has established a prima facie case;
2) defendant has established that it timely mailed its denial; 3) plaintiff submitted its claim form beyond 45 days after the dates of service; and
4) the underlying insurance policy was issued subsequent to April 5, 2002.
It is undisputed that the defendant did not submit the subject insurance policy. Plaintiff argues that its claim was wrongfully denied because defendant failed to prove that the underlying policy contained an endorsement requiring claims to be submitted within 45 days of the date of service. Specifically, plaintiff noted the requirement that claims be submitted within 45 days is part of the revised regulations, which took effect on April 5, 2002. Plaintiff also noted that the 45 day requirement is part of the endorsement provided for by the revised regulations. The essence of the plaintiff's argument is that the defendant failed to establish on this record that the insurance policy contained an endorsement giving notice to the plaintiff's assignee that any claims must be submitted within 45 days after service. The plaintiff asserts that although no appellate cases in the First Department have directly addressed this issue, case law [*2]has clearly placed the burden on the insurer to establish that the insurance policy contains an endorsement requiring an eligible injured person or representative to appear for an examination under oath (hereinafter sometimes referred to as an "EUO"), before it can deny a claim based upon the injured's person failure to appear for an EUO. The plaintiff suggests that the 45 day rule at issue herein is analogous to the EUO cases that require an insurer to establish that the insurance policy contains an endorsement because both the 45 day rule at issue herein and the injured person's requirement to appear for an EUO are both contained in the endorsement provided by the revised regulations. The plaintiff presented a myriad of cases indicating that before an insurer can deny a claim based upon an injured party's failure to appear for such examinations, the subject policy must contain an endorsement authorizing said exams pursuant to 11 NYCRR § 65-1.1(d).
Plaintiff argues that this court is bound by the appellate cases in the First Department, which rule that the revised endorsement must be included in defendant's policy in order for defendant to avail itself of the benefits (i.e., an EUO) of the revised regulations. The appellate courts have addressed the issue of whether the insurance policy must contain the "new" right to an EUO, before the insurer can deny a claim based upon the policyholder's failure to submit to one.
Defendant argues that plaintiff's claim should be dismissed because the revised regulations, which took effect on April 5, 2002, govern this case; and as a result, plaintiff was to submit its claim form within 45 days after services were rendered. Specifically, the defendant notes that 11 NYCRR § 65-1.1 clearly requires the plaintiff to submit its claims "no later than 45 days after the date services are rendered." The defendant asserts that the plaintiff's attempt to analogize the facts herein with the EUO cases is misplaced. The defendant noted that precedent clearly establishes that an insurer is not required to prove that an automobile insurance policy contained the 45 day rule endorsement for policies that expired after April 2003. Defendant asserts that this court may not substitute its judgment for that of the Superintendent, who has determined that the revised regulations are the most effective means of advancing the legislative intent to provide prompt payment of benefits, while reducing rampant abuse.
It is noted that neither the First Department nor the Court of Appeals have had the opportunity to address the issue of whether defendant's insurance policy must include an endorsement which sets forth the 45 day time limit for the submissions of claims. In the only appellate case thus far, the Appellate Term, Second Department held that the policy in effect was issued after April 5, 2002, therefore the automobile insurance policy "was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (citations omitted) and the defendant need not prove that the instant automobile insurance contained such Endorsement." Eagle Chiropractic, P.C. v. Chubb Indem. Ins. Co., 19 Misc 3d 129(A) (App. Term, 9th and 10th Jud. Dists. 2008).
At first glance of the appellate cases on the issue of examinations under oath, plaintiff appears to have a valid basis for arguing that the First Department would hold that the 45 day rule must be included in the insurance policy. However a careful analysis of the EUO appellate cases in the First and Second Departments relied upon by plaintiff, suggest that they were primarily "transitional" cases that occurred at or near [*3]the time the revised regulations took effect. Clearly triable issues of fact existed during these transitional cases as to whether or not the policy in question was in effect prior to the effective date of the revised regulations. It is well settled that the date of the written policy's issuance determines if the endorsement is applicable, and not the date when the plaintiff submits its claims. SZ Medical P.C. v. State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139(A)(App. Term, 1st Dept. 2005). The courts were rightfully concerned with providing the policyholders with notice of the "new" regulations.
It has been stipulated on this record that the underlying insurance policy was issued subsequent to April 5, 2002. The defendant noted in its "Post Trial Brief" that the treatment period for the claim was February 4, 2003 - March 6, 2003, and that it received the claim on October 27, 2003. In light of the parties' stipulation, there are no triable issues of fact as to whether or not the new regulations were in effect at the time the assignor received treatment. Based upon this fact, the plaintiff's attempt to analogize the EUO cases to the case at bar is misplaced because there is no question that the revised regulations were in effect at the time the insurance policy was issued and at the time the assignor received treatment. As noted in Woolfson v. Government Employees Ins. Co., once it is established that the policy was issued on or after April 5, 2002, the new regulations must apply, and the defendant need not produce the endorsement. 20 Misc 3d 948, 950 (Civ. Ct., New York County 2008).
The plaintiff's suggestion that the Appellate Term, Second Department overruled Woolfson in Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc 3d 49 (App. Term, 2nd Dept. 2008), is also without merit. The fact that the Court noted that the defendant in Eagle Surgical Supply, Inc. established that the insurance policy in effect when the examinations under oath were sought contained an endorsement authorizing such verification, does not render it mandatory for a defendant to establish that the insurance policy contained the 45 day endorsement.
Finally, the plaintiff's argument that the court must first determine whether the defendant's policy contained more favorable terms than the endorsement is also without merit. There is nothing in this record to suggest that the plaintiff's policy extended the submission date of the claim beyond the mandatory 45 days as required by 11 NYCRR § 65-1.1. The fact that the defendant did not produce the endorsement does not suggest that the defendant extended or intended to extend the mandatory language of 11 NYCRR § 65-1.1. Accordingly, the court does not find that it must determine whether the policy may have provided terms more favorable to the assignor and plaintiff.
Since the First Department has yet to speak on the issue of whether the 45 day rule must be included in the subject insurance policy or whether the endorsement in the regulations must be complied with, regardless of whether the 45 day rule is in the policy, if it is shown that the policy at issue took effect after April 5, 2002, this court is bound by Eagle Chiropractic, P.C. "The doctrine of stare decisis requires trial courts ... in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or [the Appellate Division of this department] pronounces a contrary rule." Striver 140 v. Cruz, 1 Misc 3d 29, 31 (App. Term, 1st Dept. 2003), quoting Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 (2nd Dept. 1984). [*4]
It is noted that the legislative intent behind reducing the time to file claims from 180 days to 45 days from the date of service is to provide for prompt payment or denial of benefits.
Based upon the record presented herein, this court finds that the defendant did not have to establish that the subject insurance policy contained an endorsement requiring claims to be submitted within 45 days after the date of service by the provider. The revised regulations were unquestionably in effect at the time of the issuance of the insurance policy at issue, and case law continues to suggest that the defendant need not establish that the insurance policy contained such an endorsement once it has been established that there are no triable issues of fact as to whether the revised regulations were in effect.
Accordingly, the plaintiff's action is hereby dismissed.
The foregoing shall constitute the decision and order of this court.
Dated: _________________
J.C.C.
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