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Medical Select, P.C. v. Allstate Insurance Co.

District Court of Nassau County, First District

December 24, 2013

Medical Select, P.C. A/A/O JOSE REPETTO, YOLANDA MENENDEZ, MESTANZA REPETTO, Plaintiff(s),
v.
Allstate Insurance Company, Defendant(s).

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Attorneys for Plaintiff, Stern & Montana, LLP

Michael A. Ciaffa, J.

DECISION AFTER TRIAL

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 (see 11 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 (2011), quoting 11 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." See 11 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." See 11 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 (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 (see 11 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 ...


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