9 Assignees + 6 MVAs + 2 Defenses = 9 Separate Actions -- Severance Granted

NO-FAULT – MOTION TO SEVER – MEDICAL NECESSITY & FEE SCHEDULE DEFENSES  

Austin Diagnostic Med., P.C. v Mercury Cas. Co.
(App. Term, 2nd Dept., decided 11/13/2015)

Plaintiff provider commenced this action to recover first-party no-fault benefits as assignee of nine individuals. The complaint alleged separate causes of action for each assignor. Defendant insurer moved pursuant to CPLR 603 to sever the second through ninth causes of action into separate actions, arguing that the nine causes of action arose out of six separate motor vehicle accidents and that each of the nine causes of action involves different questions of fact and law. Civil Court denied defendant's motion.

In REVERSING Civil Court's order and granting Mercury's motion to sever, the Appellate Term held:

Defendant's answer clearly places at issue with respect to each assignor, among other things, the necessity and reasonableness of the particular medical services rendered and whether the amount sought to be recovered in each cause of action exceeded the amount permitted by the workers' compensation fee schedule. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman's Fund Ins. Co., 12 AD3d 185 [2004]). 

Fourth Department Rules on What Consitutes a Health Care Provider's Prima Facie Showing in a No-Fault Action -- 14 Different Assigned Claims Severed

NO-FAULT – PRIMA FACIE SHOWING – SEVERANCE OF CLAIMS
Sunshine Imaging Assn./WNY MRI a/a/o Carol Vancheri v. Government Employees Ins. Co.
(4th Dept., decided 10/2/2009)

In what may be the Fourth Department's first decision addressing what constitutes a plaintiff's prima facie showing in a no-fault action, the appellate court ruled that plaintiff MRI facility

made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were received by defendant and that defendant's payment of no-fault benefits to plaintiff was overdue  (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728)[.]

Defendant GEICO, however, raised a triable issue of fact by submitting its denial of claim forms setting forth that the services for which plaintiff sought to recover no-fault benefits were not medically necessary:

Contrary to plaintiff's contention, defendant is not precluded from denying the claims after the services were rendered on the ground of lack of medical necessity. Plaintiff's assignors were entitled only to reimbursement for medically "necessary" expense (Insurance Law § 5102 [a] [1]; see 11 NYCRR 65-1.1 [d]), and plaintiff assignee is subject to that lack of medical necessity defense (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765).

The appellate court also unanimously affirmed the motion court's severance of the amended complaint's 14 causes of action that were based on the plaintiff's billing for 14 separate patients-assignors:

Although this action was commenced "by a single assignee against a single insurer and all [causes of action] allege the erroneous nonpayment of no-fault benefits . . ., they arise from [14] different automobile accidents on various dates in which the [14] unrelated assignors suffered diverse injuries and required different medical treatment" (Poole v Allstate Ins. Co., 20 AD3d 518, 519).