To Infinity and Beyond, or Actually Before -- Kings Civil Rules that No-Fault Insurer Not Required to Wait 30 Days After Initial IME Letter to Send Second IME Letter

NO-FAULT – TIMING OF FOLLOW-UP VERIFICATION – INSURANCE LAW § 5106(A) – 11 NYCRR § 65-3.6(B)
Perfect Point Acupuncture, P.C. a/a/o Jocelyn Louis v. Auto One Ins. Co.
(NYC Civil Ct., Kings Co., decided 1/6/2010)

Just under two months ago, the Appellate Division, Second Department, held in Infinity Health Products, Ltd. v Eveready Ins. Co., 67 AD3d 862, that a health care provider which ignores the no-fault insurer's verification requests altogether is estopped from claiming that the insurer's early or premature follow-up verification request -- sent on Day 27 in that case -- precludes any defenses from being asserted, including the defense that the provider's action is premature because it did not respond to the insurer's verification requests.

In this case, the plaintiff provider argued that by not waiting 30 days from the mailing of its initial IME request letter to send the second IME letter -- that second letter having been mailed only 17 days after the first -- Auto One violated  11 NYCRR § 65-3.6(b), rendering its subsequent IME no-show-based denial defective.  In rejecting that argument, Kings County New York City Civil Court Judge Peter Sweeney cited Infinity Health Products and held:

The [Infinity Health Products] Court held that "inasmuch as the plaintiff did not respond to either of the verification requests, the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . and that . . . plaintiff's action [was therefore] premature" (Id.). The Court further held that "plaintiff was not entitled to summary judgment on the complaint, and the defendant's cross motion for summary judgment dismissing the complaint should have been granted . . .without prejudice to commencement of a new action" (Id. [citations omitted]).

In this Court's view, the holding in Infinity Health Products, Ltd. requires dismissal of the within action, without prejudice to its recommencement. Here, as in Infinity Health Products, Ltd., it would be inequitable to award summary judgment to the plaintiff, whose assignor ignored two verification requests, merely because the defendant did not strictly adhere to the time frames set forth in 11 NYCRR 65-3.6[b] for mailing out second requests for additional verification of a claim . It would be incongruous to conclude that 11 NYCRR 65-3.6[b] mandates a result that would penalize the defendant for its diligent attempts to obtain additional verification of the claims and reward plaintiff whose assignor ignored the requests.

This court recognizes that this case is not on all fours with Infinity Health Products, Ltd.. In Infinity Health Products, Ltd., the defendant sent its second written verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent. Here, the second written verification request was sent out 13 days before the expiration of the 30 day period referred to in 11 NYCRR 65-3.6[b]. Under the facts and circumstances of this case, however, this distinction does not warrant a contrary result.

When plaintiff's assignor failed to appear for the IME on September 6, 2009, the re-scheduling letter was mailed to her on the following day. Unlike in Infinity Health Products, Ltd., once plaintiff's assignor failed to appear for the IME, there is no legitimate reason why defendant should have waited a full 30 days from the mailing of the first letter to mail out the re-scheduling letter. Indeed, had defendant waited a full 30 days, it would have had acted in contravention of one of the primary policies underlying the "no-fault law"; which is "to promote the expeditious handling of verification requests and prompt claim resolution" (Infinity Health Products, Ltd., supra, 67 AD3d 862, 2009 NY Slip Op 08585 at 2). Further, the Court notes that when plaintiff's assignor failed to appear for the re-scheduled IME, 30 days had elapsed from the time that the first scheduling letter had been sent to her.

The absurdity of an argument can sometimes cause a court to favor the opposing position.  This "early" or "premature" follow-up verification argument has always seemed counterintuitive and contrary to the spirit of Regulation 68 to me.  Apparently it does to Judge Sweeney, also.