To Prove Staged Accident in Judge Velasquez' Courtroom, the Standard is Preponderance of Evidence

In Universal Open MRI of the Bronx, P.C. v State Farm Mut. Auto Ins., decided on May 11, 2006, Judge Velasquez at Civil Court, Kings County ruled evidence defendant presented insufficient to prove a staged accident. While unremarkable by itself, he goes into a detailed analysis as to the standard of proof required. He ultimately adopts the standard of preponderance of evidence. The decision is worth reading.

An Example of An Effective Peer Review Defense - Where Plaintiff Does Not Produce a Witness

In Expo Med. Supplies, Inc. v Clarendon Ins. Co., 2006 NY Slip Op 50892(U), decided May 15, 2006 in Civil Court, Kings County, Judge Delores J. Thomas held that defendant's Peer Review Doctor Ronald A. Csillag's testimony was sufficient to carry their burden to prove that the supplies were not medically necessary. Plaintiff did not produce a witness, but instead relied upon the report of Dr. Barshay. The court found that no evidence was presented to refute defendant's testimony.

Affidavit Re Proof Of Mailing Must Be Specific to be Sufficient

In A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 2006 NYSlipOp 50810(U), decided April 28, 2006, the appellate term second department vacated a judgment against defendant since among other things, plaintiff's affidavit was insufficient to prove mailing. In his affidavit, plaintiffs' "practice and billing manager" alleged that he "issued all of the billings," that he "personally billed out the claim," and that "[a]ll billing of plaintiff was sent to defendant." The court said this was not enough.

Amazing - IME No Show = No Pay

In two cases, Amaze Med. Supply Inc. v Allstate Ins. Co. and Amaze Med. Supply Inc. v General Assur. Co., the appellate department confirmed the viability of the defense that plaintiff's assignor failed to appear for IMEs. In the second case, the court also states that an affidavit by a supervisor with knowledge of the mailing procedures is enough to prove mailing of the IME letters.

Never Mind that the Regulation Requires the Endorsement, Prove to Us It's There

In yet another set-back for the defense bar, the appellate division second department held in Dilon Med. Supply Corp. v Progressive Cas. Ins. Co., 2006 NYSlipOp 50908(U), decided May 17, 2006 that requests for examinations under oath did not toll the thirty day rule as defendant failed to provide proof that the policy endorsements mandated by the new regulations were made a part of the applicable policy.

First, every policy issued or renewed is required by law to include the endorsement. Second, the claim involved appears to have arisen right when the new regulations went into effect, so it dealt with a situation where a plaintiff could call into question whether the new endorsement controlled. If plaintiff raised such an issue, defendant should have been afforded an opportunity to respond rather than ruling against them by fiat.

A Nurse's Peer Review Not Enough

In SZ Med. P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 26194, decided May 17, 2006, the appellate term second department held in part that a nurse's unsworn peer review was not enough to establish lack of medical necessity,absent some proof of the ability of that nurse to give a medical opinion. I think I know at least one nurse who would disagree with the latter part of the court's reasoning.

180 Rule Viable But You Need Proof

In Continental Med., P.C. v Travelers Indem. Co. , 2006 NYSlipOp 50841(U), decided May 11, 2006, the appellate term, first department reversed summary judgment for defendant on the 180 day rule, in effect saying that insufficient proof was put forward as to the date of receipt of the notice of loss.

Track and Confirm Receipt Alone Is Not Proof of Mailing

In New York and Presbyterian Hospital, a/a/o Richard Udland, et al., v. Allstate Insurance Company, (Index No. 6510/04), 2006 NY Slip Op 03558, the Appellate Division, Second Department upheld denial of summary judgment on a cause of action where plaintiff sought to prove mailing solely based upon a Track and Confirm receipt without adequate support. "Here, no presumption of mailing was created because the affidavit of the plaintiffs' billing service representative did not state that he actually mailed the particular claim alleged in the second cause of action to the defendant ... or describe his office's practice and procedure for mailing no-fault claims to insurers."

The Sunday Night Massacre

I am getting numerous reports via e-mail that the axe has been swinging far and wide tonight. I don't have definitive numbers right now, but after I pick through some more of the bloody bodies I will get back to you.

So much for Anita's claim that the May 12th deadline was nothing more than a bunch of hype. Check out what Anita made Sally write two weeks ago:

From: {Sally}
To: {Temp Attorneys}
Subject: Don't Believe the Hype
Date: Thu, May 4, 2006

CC: {Anita}

Hi All,

A number of you have advised me of a rumor going around that the project is ending on May 12. THIS IS NOT TRUE. There is a May 12 deadline, but {Anita} has been consistently very clear that the deadline does NOT mean the end of the project. There may be a lag between the May 12 deadline and June 1, but the project is continuing.

Thank you for letting me know about the rumor, and please always let me know any time something like this comes up, so we can address it right away.

Please let me know if you have any additional questions or concerns.

Thanks All! You guys are the best.

{Sally}

Sharpening the Axe

Today, Anita pulled half of the project into a meeting. Apparently, she informed the group that their portion of the project would be ending on Monday. She pleaded with the group not to worry, however, as the firm was planning on creating "special projects" to keep the group employed until the second phase of the project begins in early June.

As far as I am concerned, the following may be happening:

a) Anita could be telling the truth

b) Anita will fire the group at the end of the week. Firing the entire group without notice would lower morale for those remaining on the project. {Why work hard at a place that engages in mass-layoffs without notice? -- you could be next!} The "special projects" story could have been fabricated in order to make it seem like Anita was doing everything in her power to keep everyone around. It would ease tensions.

c) Anita is trying to keep everyone around until the second phase of the project begins. In order to keep people from jumping onto other projects, Anita is enticing people to stay on with phantom projects. By the time people realize that they are being jerked around (by only being allowed to bill 20 hours per week), it will be too late to find other work. At that point, people will decide just to suck it up and remain on for the second half of the project.

Student Loan Justice

Law Loans are often the chains of bondage that trap hoards of young people into years of crushing white-collar slavery. With non-dischargeable student loan payments often in excess of $1,000 monthly, one has little choice but to put up with the exploitive antics of Anita and Alfred Youngwood. There is a reason why people subject themselves to working with dead cockroaches and in sweatshops right out of the 19th century:

"Since 1997, student loans have become the most profitable, uncompetitive, oppressive, and predatory type of debt of any in the nation. This has occurred due to legislation that was paid for by the the lobbying machine of Sallie Mae, the largest student loan company in America. Vast personal fortunes are being made by both Sallie Mae executives, and others who paid for this legislation, at the expense of decent citizens who were not able to capitalize on their education. This has effectively crippled MILLIONS of decent citizens who want to repay their original debt, but are prevented from doing so by staggeringly higher amounts being demanded from them by both "non-profit", and for-profit student loan companies. This has truly created a swath of economic destruction across our land."

"According to Harvard Professor Elizabeth Warren in a Wall Street Journal piece by John Hechinger last year, "Student-loan debt collectors have power that would make a mobster envious."

Anyone who has the gumption to walk off Anita's project and anyone who dares to tell that abusive sidekick of hers to go to hell will have to contend with an angry mobster from the student-loan industry. Can anyone say leadpipe?

http://www.studentloanjustice.org/

An Iron-Will

"Crunch Time" continues. I apologize for not have written in the last couple of days. After 14 hours straight of staring into a dull, luminescent screen, the last thing I wanted to do was to go home and write on a blog. Frankly, I really think this job is starting to get to me. Walking out of work the other day, I felt faint, my vision became blurred, and I felt like I was going to pass out on the sidewalk. Many of my fellow co-workers and I are becoming worn-out. The level of after-hours drinking on the project has increased dramatically. Natalie's answer to this, by the way, is to throw an after the "crunch-time" drinking party. Personally, I think the money can be better spent in hiring an on-site AA counselor. Just a suggestion.

One particular individual on the project billed close to 95 hours last week! Talk about an iron-will! In order to accomplish this particular feat, he/she would have needed to stare into a luminescent screen in a tight, cramped work space for close to 13.5 hours a day (without any breaks) for seven straight days. If he/she was able to pull this off without the use of any chemical substances, my hat goes off to him/her.

And now for something off topic

Chanler v David Letterman Show

Who is suing David Letterman, and why? Does it involve no-fault?
Is Dick Schaefer involved?

Plaintiff's Affidavits Must Be Specific

In A.B. Med. Servs. PLLC v Allstate Ins. Co., 2006 NYSlipOp 50746(U) decided April 27, 2006, the Appellate Term, Second Department held that plaintiff's billing manager's affidavit was not specific as to which of the provider companies he was a billing manager, and denied plaintiff's motion for summary judgment.

No Summary Judgment Before Discovery Complete

Congratulations to Jeremy Kosin of Bruno Gerbino for his win in SK Medical v. New York Central Mutual, 2006 NY Slip Op 50721(U), decided April 5, 2006 in Civil Court, Richmond County by Judge Sweeney.

Judge Sweeney held that plaintiff was not entitled to summary judgment because discovery as to non-precluded defenses was still outstanding. Judge Sweeney expanded on a ruling in A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 2006 NY Slip Op. 26068[App. Term, 2nd & 11th Jud. Dists.]

Out of State Insurers Off the Hook?

If you have occasion to handle claims being made against an out of state insurer who has not filed with the insurance department to offer coverage in New York, you might want to check out Marshall v. Nationwide Mutual Company, 166 A.D.2d 852.

Thanks to Christopher A. Wong with Bruce Sommerstein & Associates for this tip.

Eat Your Wheaties

Anita has really cranked up the hours. Ideally, she wants us to work as many hours possible from 7 a.m. - 10 p.m. (9 a.m. - 8 p.m. on the weekends). Natalie, the lady from the agency, came down and told us that she knows how difficult it is to stare into a luminescent screen for 12 hours a day (right, I am sure she does!), but that we should try our best by eating our Wheaties in the morning. Wheaties? I am going to need more than Wheaties to get through a 14 hour day/7 days of week of document review. How about a valium?