Thursday, December 23, 2010

Appeal Outcome of a Mallela-esque Trial

Over in No-Fault Paradise, Dave Barshay reports on the recent appeal outcome of the 2008 trial of 30 consolidated cases of Dr. Herbert Rabiner of Metroscan Imaging, P.C., Belt Parkway Imaging, P.C., Diagnostic Imaging, P.C., and Parkway MRI, P.C. no-fault notoriety.  Those of you who fancy yourselves no-fault dorks (Barshay's moniker) should head over to No-Fault Paradise and read Dave's post and the Appellate Term's December 20th decision

Among the Mallela-esque issues before the Appellate Term was whether a Mallela defense must be proven by clear and convincing evidence, as the trial judge Bernice Daun Siegel had ruled, or a preponderance of the evidence, as defendant State Wide Insurance Company contended.  It is important to note that the Appellate Term did not reach and decide that issue, finding that "the evidence adduced at trial was insufficient to establish,  even by a preponderance of the evidence, that plaintiffs were operated in violation of state licensing requirements."

The Appellate Term also found that the trial court properly determined that because State Wide never issued any denial of claim forms to the providers, the accrual of compound interest (the contested dates of service were before the April 5, 2002 amendment of Regulation 68) was never tolled and commenced from 30 days after the claims were submitted to State Wide for payment.  Over at his No Fault Defender blog, Jason Tenenbaum notes that this decision could cost State Wide millions in compound interest.

1 comment:

Larry Rogak said...

I sat in on that trial as an observer because I represent other insurers defending claims brought by Dr. Rabiner's now-defunct clinics. The trial presented a lot of very interesting evidentiary issues, as well as the burden of proof issue that the Appellate Term declined to resolve.