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New York Appellate Court Denies Summary Judgment Motion


This proceeding involves a motion by Westchester Medical Center for summary judgment upon Progressive Casualty Insurance Company’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a).

The court denies the motion.

The antecedent facts are as follows:

On 31 October 2010, PV was involved in an accident for which he received medical treatment at Westchester Medical Center. PV was insured pursuant to an automobile liability insurance policy with Progressive Casualty Insurance Company.

On 2 November 2010, the date when PV was discharged, PV assigned his rights to no-fault benefits to the Hospital. On 4 November 2010, pursuant to Progressive’s investigation of no-fault benefits eligibility, Progressive requested certified copies of PV’s admission history, discharge summary, radiology and pathology reports, laboratory test results, consult reports, nurses’ notes, emergency room records, and specifically blood alcohol/drug results and any serum toxicology test results.

On 10 November 2010 a no-fault billing in the amount of $ 9,333.48 was mailed to Progressive, certified mail, return receipt requested. Progressive received the bill on 12 November 2010.

On 15 November 2010, Progressive requested an authorization from PV to obtain his blood alcohol level from the New York State Police and also requested from the police information regarding PV’s blood alcohol results at the time of the accident. Prior to that time, Progressive had obtained a copy of the police report which indicated that PV was arrested for DWI or Driving While Intoxicated.

On 26 November 2010, Progressive sent a verification request delaying the payment of benefits pending the receipt of PV’s authorizations, blood and alcohol levels, supporting deposition/ DWI bill of particulars and emergency room records including all laboratory tests and/or the police accident report.

On 6 December 2010, the Hospital mailed the complete medical records, including all laboratory and toxicology reports, to Progressive. This mailing, which was received by Progressive on 8 December 2010, also included a copy of the assignment of benefits.

On 29 December 2010, Progressive sent another “Verification Request: Follow-up Notice” seeking that which was sought in the 26 November 2010 verification request.

On 10 January 2011, Progressive acknowledged receipt of the hospital records but further requested from the Hospital the results of blood alcohol testing or a certified letter from the Hospital indicating that the testing was never performed.

By letter dated 4 February 2011, PK, a biller and account representative for Hospital Receivable Systems, an entity which represents the Hospital, informed Progressive that it had mailed the complete medical records and that the Hospital did not test for blood alcohol and drugs and, thus, did not have any serum toxicology test results. This letter was not certified.

Having been notified by the arresting officer that PV had refused to take any alcohol tests at the time of the accident, on 18 February 2011 and 23 March 2011, Progressive wrote to the police requesting a copy of PV’s condition report or supporting deposition-bill of particulars as is required when tickets are issued for alcohol involvement. The police told Progressive that there was an ongoing DWI or Driving While Intoxicated case against PV, that the case was going to trial, and that they would not be able to provide the requested documentation until the conclusion of the trial.

The Hospital thereafter moved for summary judgment based upon Progressive’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a), which states that: “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.”

In the case at bar, the Hospital established its prima facie entitlement to judgment as matter of law by demonstrating that the necessary billing forms were mailed to and received by Progressive and that payment of the no-fault benefits was overdue based on the ruling in New York & Presbyterian Hosp. v American Transit Insurance Co. Specifically, the Hospital submitted, in support of its motion, the requisite no-fault billing forms, the assignment of benefits form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of PT, a biller and account representative for the Hospital, indicating that Progressive failed to either pay the bill or issue a timely denial of claim form based on the rulings in Westchester Medical Ctr. v Progressive Casualty Insurance Co. and Hospital for Joint Diseases v New York Central Mutual Fire Insurance Co.

The burden then shifted to Progressive to establish whether an issue of fact exists as to whether the verification requests sent by Progressive would serve to extend its time to pay or deny the claim akin to Presbyterian Hosp. v Countrywide Insurance Co. Progressive argues that, until all timely requested verification has been received, the claim is not overdue and Progressive is under no obligation to pay or issue a denial.

Hospital for Joint Diseases v New York Central Mutual Fire Insurance Co. settled that an insurer’s 30-day period in which to deny or pay a claim may be extended where the insurer makes a request for additional information and, in doing so, the insurer is not obligated to pay or deny the claim until all the demanded verification is provided. Pursuant to 11 NYCRR § 65-3.8(g), if an insurer has reason to believe that an applicant was operating a motor vehicle while intoxicated, and such intoxication was a contributing cause of the accident, the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident. Proof of claim shall not be complete until the information which has been requested pursuant thereto has been furnished to the insurer in accordance with 11 NYCRR § 65-3.8[g]. Furthermore, 11 NYCRR 65-3.5(c) entitles an insurer to receive all items necessary to verify a claim directly from the parties from whom such verification was requested.

An affidavit by a personal injury protection litigation representative employed by Progressive demonstrated that there is requested verification outstanding and that such verification is needed to process the claim. Since all of the requested information was not provided, the 30-day period in which Progressive was obligated to pay or deny the Hospital’s claim did not begin to run as was held in Westchester Medical Center v State Farm Mutual Auto Insurance Co., Hospital for Joint Diseases v New York Central Mutual Fire Insurance Co, New York & Presbyterian Hosp v Countrywide Insurance Co. and Montefiore Medical Center v Government Employees Insurance Co.

In Reply, the Hospital argues that it has fully complied with Progressive’s verification requests by providing medical records and advising Progressive that the Hospital did not test PV for blood alcohol or drugs.

Contrary to the Hospital’s contention, the Hospital did not fully comply with Progressive’s request insofar as it did not provide to Progressive a “certified letter” from the Hospital that blood alcohol testing was not conducted. Neither the 4 February 2011 uncertified letter from a biller/account representative indicating that the Hospital did not test PV for blood alcohol or drugs, or the subsequent affidavit from SS, a secretary employed by Hospital Receivable Systems, indicating that PV was not tested for blood alcohol levels, was a proper response to Progressive request for a “certified letter” from the Hospital indicating that no blood alcohol testing was conducted on PV. Progressive is also seeking requested documentation from the police with respect to the DWAI investigation.

Based on the foregoing, the court denies the Westchester Medical Center’s motion for summary judgment.

New York DWI Lawyers or New York Driving While Intoxicated Lawyers work hand in hand with Stephen Bilkis & Associates to serve you better. If you find yourself similarly situated, do not hesitate to call our toll free number or visit our place of business so we can discuss the issues you are faced with.

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