No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Archive for the ‘Uncategorized’ Category

This was just a thought as I read through the Appellate Term, Second Department, decisions that came out today.  I will confess that I was .5 for 3 in today’s appellate decisions, which should be some proof that this court is not as “defendant friendly” as too many practitioners urge the bar to believe.  I also am not ashamed to admit that sometimes, the chips do not stack up in your favor, even though you deep down believe they should.

That being said, the question is what happened?  I will try to give some insight in some of the subsequent posts that I will be posting today, August 19, 2010.

-JT

Meridan Health Acupuncture, P.C. v Auto One Ins. Co., 2010 NY Slip Op 51263(U)(Dis. Ct. Suffolk 2010)

In this case, the District Court allowed a Notice to Admit to satisfy a plaintiff’s prima facie burden.  It also found that a Defendant’s really cute, but completely inappropriate response, to the notice to admit to be deemed a nullity.  The net effect, in the eyes of the District Court, was to deem the allegations set forth in the notice to admit to be deemed admitted.

I would have no problem with the court’s findings of facts and conclusions of law, provided the District Court transplanted itself to the Grand Concourse from 1850 New York Avenue.  Thus, if the District Court, Third District, Huntington Part, sat in the hypothetical District Court, Third District, Bronx Part, then one should probably applaud this opinion.  Furthermore, if the Appellate Division, Second Department overturns, in effect, Art of Healing, which many of us think is probably going to happen, then this decision would probably be correct.  But, District Suffolk sits on Long Island, and cannot disregard the law as the Appellate Term in this Department has said it to be, viz, a prima facie case requires, among other things, a business record foundation for the entry of the bills into evidence.

But if you read this decision, note how the Court avoids citing Second Department precedent (when convenient), and even cites the one and only Appellate Division, First Department case that commented on what constitutes a prima facie case.

I was inspired by DG over at NFP to write something not no-fault related, per se. But then I realized people do not read this blog to find out my thoughts on politics and other societal issues.  At least I hope that is not the case.  Surprisingly, I do get many hits when I delve into issues that are only tangentially related to PIP issues, which is interesting.

But, since there has been a lot of talk about no-fault regulation and legislation, I thought I would mention the piece of no-fault legislation that passed.  That would be “no-fault” divorce.  A copy of the bill that passed both chambers and will be signed as a chapter law (A-9753A) – and it is a short one – is reproduced here:

1    Section  1.  Section  170  of the domestic relations law is amended by
     2  adding a new subdivision 7 to read as follows:
     3    (7) The relationship between husband and wife has  broken  down  irre-
     4  trievably  for  a period of at least six months, provided that one party
     5  has so stated under oath.  No judgment of divorce shall be granted under
     6  this subdivision unless and  until  the  economic  issues  of  equitable
     7  distribution  of  marital  property,  the  payment  or waiver of spousal
     8  support, the payment of  child  support,  the  payment  of  counsel  and
     9  experts'  fees  and  expenses as well as the custody and visitation with
    10  the infant children of the marriage have been resolved by  the  parties,
    11  or  determined  by  the  court  and  incorporated  into  the judgment of
    12  divorce.

Have a happy, healthy and safe independence day today.

It is nice to know that the top bloggers of the no-fault bar have been nominated for LexisNexis’s Top 50 Insurance blogs, as Dave reports to us today.  I agree that Dave should get a pullitzer prize for his on location photos.

There should be an award for the top commentators on our blogs.  I would nominate Sun Tzu and Zuppa – as long as Zuppa is not insulting me on here.

Speciality Surgical Servs. v Travelers Ins. Co., 2010 NY Slip Op 50715(U)(App. Term 2d Dept. 2010)

“At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint.”

There was also a discussion regarding the validity of an assignment of benefits, but this issue was foreclosed due to the failure to address it during the claims stage.

I am more intrigued by the summary reversal of the District Court’s decision, after trial, that the services lacked medical necessity.  Of course, we have no idea whether the reversal was on the law (CPLR 4404[a]), in the exercise of the appellate court’s broad discretion, or based upon the appellate court’s opinion that the trial court’s decision was against the weight of the evidence.  Also, it is interesting how the court made mention of a peer report which, in effect, bolstered the peer doctor’s testimony.

I would hope, for the plaintiff’s bar, that the District Court sat solely as a proverbial “13th juror”, which would render the reversal as based upon the decision being against the weight of the evidence.  If this decision was based on the law, then it would appear that as long as the testimony is not conclusory and supported by admissible evidence, a trial court is bound to find for the defendant absent rebuttal testimony.

I would like to see the appellate courts evaluate more of these unrebutted medical necessity trial cases, before I come to any conclusions.

I came across this trade industry group called “New York Fair”, who seems focused on modifying some of the provisions of the new proposed regulations and preventing certain legislation from becoming enacted.  Some of the things they say make sense, for instance, opposition to legislation that turns judicial proceedings into glorified arbitration proceedings.  Some of the things they say I find questionable, i.e., opposition to giving the insurance carriers more time to pay or deny claims, or opposition to preventing “bad faith” actions. The website of this group is worth a read, if only to see the opinions of others in our industry.

I took this description of me off of Ray Zuppa’s final post on his pit.  I am not sure it is true, but I will take it as a compliment.  Admittedly, I found the Pit informative, entertaining and educational.  Zuppa raised some good points, and his brand of iconoclastic and indecipherable thinking will be missed.  Yes, I was a covert Pit reader.

Williams v City of New York, 2010 NY Slip Op 02783 (2d Dept. 2010)

“Dr. Gutstein testified that the decedent’s hospital records for the 11-day period preceding his death indicated that the decedent was able to squeeze the nurse’s hand upon request, mouth words, open his eyes spontaneously and in response to verbal and visual stimuli, and respond to tactile and painful stimuli. The decedent responded to name calling by turning his head in the direction of the voice in addition to extubating himself. These records also indicated that during this time, the decedent was cognitively aware, able to control his motor and sensory movements to some degree and had residual brain function for several days after his seizure. Based upon his review of these records, Dr. Gutstein testified that it was his opinion that the decedent experienced pain during this time.

A jury’s determination not to accept expert testimony and opinion must not be arbitrary (see Calderon v Irani, 296 AD2d 778, 779). It must be supported by other testimony or by the cross-examination of the expert (id.; see Baker v Shepard, 276 AD2d 873). If the evidence presented during trial conflicts with the facts that form the basis of the expert’s opinion, or the expert equivocates on cross-examination, the jury may disregard the expert’s opinion (see Fazzone v Gourlay, 1 AD3d 678; Baker v Shepard, 276 AD2d 873). In this case, neither situation is applicable with respect to Dr. Gutstein’s opinion that the decedent experienced pain while in the hospital. Furthermore, the evidence established that the decedent had the requisite level of awareness to sustain a claim for damages for pain and suffering (see Ramos v Shah, 293 AD2d 459; Walsh v Staten Is. Obstetrics & Gynecology Assoc., 193 AD2d 672). Thus, an award of zero damages for the decedent’s pain and suffering was contrary to the weight of the evidence and not supported by any fair interpretation of the evidence (see Carter v New York City Health & Hosps. Corp., 47 AD3d at 663; see also Sescila v Garine, 225 AD2d at 685).”

The above bolded passage encapsulates the paths a fact finder may take when evaluating expert testimony.  It is definitely something to keep in your briefcase when you are challenging or defending, on appeal, a judge’s decision to credit or not to credit the testimony of a particular expert.

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (2d Dept. 2010)

“[t]he case law is somewhat more abundant as to what is not “documentary evidence.” As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court’s dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not “documentary evidence,” as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not “documents” within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not “essentially undeniable.”

In sum, to be considered “documentary,” evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as “documentary evidence,” particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as “documentary evidence” in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as “documentary evidence.” However, it is clear that affidavits and deposition testimony are not “documentary evidence” within the intendment of a CPLR 3211(a)(1) motion to dismiss.

*                        *                                 *                                *                              *

The essence of the defendants’ contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) “documentary evidence,” i.e., the defendants’ printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants’ position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital’s agents and employees. They clearly do not reflect an out-of-court transaction and are not “essentially undeniable” (see Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not “documentary evidence” within the intendment of CPLR 3211(a)(1).

Since the defendants’ printed materials were not “documentary evidence” and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties’ remaining contentions.”

The latest trend out there is to make pre-answer motions based upon EUO and IME no-show defenses.  I was always skeptical about these motions, since I always thought they had to be made as summary judgment motions.  It looks as though the Appellate Division has confirmed my skepticism.

Shady Grove v. Allstate

Dave Gottlieb has posted extensively on this case, and has some good insights on it.  This case represents a course in Civil Procedure and its effects on no-fault are minimal.  But I will sort this out for the non attorneys who read this, or the attorneys that forgot first year Civil Procedure in law school.

Shady Grove apparently filed a class action lawsuit in Federal court, arguing that Allsate failed to pay interest on numerous cases.  The action was based solely upon New York no-fault law.  Therefore, the federal court would only have jurisdiction to entertain this matter if there was diversity between any of the parties and $5 million in dispute. According to New York State law and, as is relevant to this case, a class action may not be brought when the damages solely consist of a penalty.  Statutory interest and the resulting attorney fees are clearly penalties.  Under the Federal Rules of Civil Procedure, a class action can be brought irrespective of whether the object of the action is to collect a penalty.  So, you would think that since this case was brought in Federal court, the Federal Rules ipso facto would apply.  This is not necessarily true.

In the last century, the Supreme Court held in the Erie and Hannah line of cases that where State substantive law applies, a Federal Court in a diversity matter must apply the state substantive law.  The Court, however, held that where the difference between state law and federal law only applies procedural rules, the Federal procedural rules would apply.

The question then is whether the New York class action statute is procedural or substantive.  The Second Circuit observed that it is, for the most part, hybrid and held that it is substantive to the extent that Shady Grove could not bring this action in Federal Court since it could not be brought in State Court.

The Supreme Court in a very divided opinion reversed the Second Circuit and held, as far as I am concerned, that the dispute is procedural.  Therefore, since the action may be brought in Federal Court in accordance with the Federal Rules of Civil Procedure, the Second Circuit was incorrect in allowing for this lawsuit’s dismissal.

This case now allows for massive forum shopping, for the minimal amount of class action litigation that no-fault has spawned.  However, it opens up the door to perhaps more class action lawsuits and the massive discovery, which is always advantageous to the plaintiff class members in this type of litigation.  Perhaps, we have entered a new era in no-fault litigation?  I do not think so, but as to issues involving interest and attorney fee disputes on a more global level, it is definitely possible.