Wednesday, April 30, 2008

Fair Number of Questions on Fair Price Medical Oral Argument

If you've ever attended an oral argument of an appeal, you know that an assessment of "how it went" is sometimes gauged by the questions posed to respective counsel. With grateful appreciation to Coverage Counsel's two in-court observers and correspondents, Cheryl from AIG and Andre from Progressive, here's what they saw and heard this afternoon at the Court of Appeals in Albany:

Questions for Traveler's counsel (Appellant):
  • Did Travelers obtain an affidavit from the EIP? [No.]

  • Isn't it true that the EIP didn't speak English? [Yes, but an interpreter was used.]

  • What was with Travelers' use of a 200-question questionaire?

  • If the DMEs had been received, would Travelers have paid for them? [Yes.]

  • Where does it state that fraud is not subject to the 30-day preclusion rule? [BEL not incurred, therefore not "covered"; Insurance Law § 5109 and public policy require insurers to investigate fraud.]

  • Why didn't Travelers deny for 22 months? [It doesn't matter whether the denial is one day or 2 years late where the services or supplies have not been rendered.]
Questions for Fair Price Medical's counsel (Respondent):

  • Did Fair Price obtain an affidavit from the EIP? [No. Med providers are required only to prove the bill was mailed and not paid in order to make their prima facie case.]

  • Why shouldn't a defense of fraudulent billing be available to the insurer at any time? [If not discovered within 30 days, too bad.]

  • What recourse does a no-fault insurer have if it cannot deny a claim for fraud? [Insurer can commence a DJ action or sue for recovery.]
  • Wait, so if the provider sues for payment of the billings, the insurer can counterclaim for payment back? [Yes.]
Cheryl: "It is difficult to tell which way the judges will go on this." Andre: "It went better than I thought given the facts."

To one of the two observers, Judges Smith and Pigott seemed to be more skeptical of Fair Price's position, while Chief Judge Kaye seemed to be more bothered with Travelers' 22-month delay in denying coverage.

The Court of Appeals usually issues decisions in 4-6 weeks. Look for a decision on this case in that time frame. Any predictions?

June 5th -- Court of Appeals AFFIRMED. See Fair Price Medical -- Affirmed.

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