United States District Court, S.D. New York
July 9, 2004.
DEAJESS MEDICAL IMAGING, P.C., as assignee of ARSEN AIPAPETIAN and the other injured persons in the attached rider, Plaintiff,
TRAVELERS INDEMNITY COMPANY, Defendant.
The opinion of the court was delivered by: LOUIS STANTON, District Judge
Defendant moves to sever the different claims of this action
pursuant to Fed.R.Civ.P. 21 and, if severance is granted, to
dismiss this action in its entirety for lack of diversity
jurisdiction, as the individual claims do not meet the $75,000
amount in controversy requirement.
Plaintiff seeks to recover payment for medical imaging services
provided to thirty-three individuals. Each of those individuals
assigned their no-fault insurance benefits to plaintiff, in order
to get medical treatment. As the following examples offered by
the defendant demonstrate, the assigned claims were denied for a
variety of reasons:
8. For example, plaintiff seeks $1,757.34 as assignee
of Andre Creary (3rd cause of action). Creary was
reportedly injured in a car accident on July 3 or 4,
2002. There were six persons in the Honda driven by
Creary. He applied for no-fault benefits on July 5,
2002. He reportedly had an MRI of his back on July
26, 2002 at Deajess. On August 26, 2002 Deajess was
advised that its claim was delayed so that Travelers could
investigate the claim. Based on that investigation
and non-cooperation with same the claim was
subsequently denied. . . .
9. Plaintiff seeks $1,790.67 as assignee of Valeriy
Gaspanov (6th cause of action). Gaspanov was
reportedly injured in a car accident on December 24,
1999. After applying for no-fault benefits, she
reportedly had an MRI of her right shoulder at
Deajess on February 28, 2000. The claim was denied
and on September 13, 2002 referred by Deajess' former
counsel Rubin & Licatese, to arbitration. On August
27, 2003 the claim was withdrawn with
prejudice. . . .
10. Plaintiff seeks $2,666.17 as assignee of Alain
Mathieu (15th cause of action). Mathieu was
reportedly injured in a car accident on August 27,
2001. He applied for no-fault benefits on September
14, 2001 and November 1, 2001. On the first
application he stated he was a passenger in a 1990
Ford and sustained right knee and back injuries. On
the second application he stated he was a passenger
in a 1996 Honda and sustained head, neck and back
injuries. He reportedly had MRIs of his neck and head
and back at Deajess on September 15, 2001 and October
1, 2001, respectively. On November 8, 2001 Deajess
was advised that its claim was delayed so that
Travelers could investigate the claim. Based on
inconsistencies in information obtained from the
persons involved in the accident the claims were
denied and referred to the N.Y. State Insurance
Department Frauds Bureau. . . .
11. Plaintiff seeks $3,544.84 as assignee of Zinovij
Rapoport (19th cause of action). Rapoport was
reportedly injured in a car accident in New Jersey on
January 3, 2002. He applied for no-fault benefits on
March 25, 2002. He reportedly had MRIs performed at
Deajess. The medical necessity for these MRIs was
disputed and rejected by Travelers through a process
known as peer review. The peer doctor recommended "no
reimbursement". Accordingly, the claim was
denied. . . .
April 23, 2004 Affirmation of Michael Caulfield, Esq. at 3-5.
Establishing the propriety of each denial will require
different witnesses and documentary proof on such issues as
coverage, medical necessity, fraud, and cooperation on the part
of the insured. Each individual claimant applied separately for
no-fault benefits, and assigned the claim to Deajess. Thus, although facially presented as a single unit of similar claims,
the trial would require a jury to hear evidence from the
participants in thirty-three separate accidents, treatments,
claims and investigations. Plaintiff argues that many of the
claims may settle, but claims settle because courts are ready to
try them, and under the complaint the court must consider the
practicalities of thirty-three trials in one proceeding. That
Similar rulings have been made by three (out of five) judges in
this district. See Boston Post Road Medical Imaging, P.C. a/a/o
Josephine Abreu et al. v. State Farm Mut. Auto. Ins. Co. et al.,
Docket No. 03 Civ. 6643 (S.D.N.Y. 2004) (Hellerstein, J.);
Deajess Medical Imaging, P.C. a/a/o Richard Benbow et al. v.
Travelers Prop. Casualty Ins. Co., Docket No. 03 Civ. 6635
(S.D.N.Y. 2004) (Buchwald, J.); Preferred Medical Imaging, P.C.
a/a/o Senatus Cilvain et al. v. Allstate Ins. Co., Docket No. 03
Civ. 6638 (S.D.N.Y. 2004) (Marrero, J.). Only in one case has a
motion to sever been denied. See Boston Post Road Medical
Imaging, P.C. a/a/o Wilmore Allen et al. v. Travelers Prop.
Casualty Ins. Co., Docket No. 03 Civ. 6156 (S.D.N.Y. 2004)
(Baer, J.). Judge Scheindlin held in Boston Post Road Medical
Imaging, P.C. a/a/o Manuel Acevedo et al. v. Allstate Ins. Co.,
Docket No. 03 Civ. 6150 (S.D.N.Y. 2004), that plaintiffs could aggregate their claims but did not address the issue of
Defendant's motion to sever is granted, and this action is
dismissed without prejudice for lack of subject-matter
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