Thursday, June 12, 2008

No-Fault Attorney's Fees Awarded "Per Claim"

Fortune Med., P.C. a./a/o Eka Lowen v. New York Cent. Mut. Fire Ins. Co.
(App. Term, 2nd Dept., decided 4/3/2008)

The doctrine of stare decisis ("to stand by things decided"), and more particularly vertical stare decisis, requires a court of lower jurisdiction to follow settled precedents or case holdings established by courts of higher jurisdiction in their region.

It's no suprise then, that the Appellate Term, Second Department, REVERSED Queens Civil's reduction of attorney's fees in this $5,855.82 no-fault recovery matter to $850 and held, in accordance with the Third Department's December 2007 decision in LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., that attorney's fees were to be calculated on a "per claim" basis. The decision does not indicate how many "claims" comprised the principal judgment amount and whether each bill was pled as a separate cause of action in an effect to support a "per claim" argument for attorney's fees.


Larry Rogak said...

And yet the mysterious word "claim" has still never been specifically and definitely defined by any court. Since we know that each cause of action is not necessarily a separate claim, it has to be either each NF-3 or each bill. I am drawing the inference, though, especially from this new decision, that every "bill" is a "claim."

Roy A. Mura said...

From the 183 or so references in context to "claim" in Subpart 65-3, that is my inference, as well. Support for this comes from 65-3.8(c)(1), which provides:

(1) If the insurer denies a claim in whole or in part involving elements of basic economic loss or extended economic loss, the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate, and shall furnish, if requested by the applicant, one copy of all prescribed claim forms submitted by or on behalf of the applicant thereto. However, where a denial involves a portion of a health provider’s bill, the insurer may make such a denial on a form or letter approved by the department which is issued in duplicate. No form or letter shall be approved unless it contains substantially the same information as the prescribed form which is relevant to the claim denied.

"Claim" and "bill" seem to mean the same thing in this subsection.