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No-Fault: From Both Sides Now: A Personal Odyssey
By: Heather Graziano, Esq.

FOR THE DEFENSE


No-Fault: From Both Sides Now
A Personal Odyssey

By: Heather Graziano, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York

“No-Fault defense attorneys do not do any work” is something that I used to hear all of the time when I was employed by one of the most prominent plaintiff’s no-fault firms in New York. I have since switched sides and now I defend the insurance carriers and I work harder than I ever did.

In order for plaintiffs to prove their case, they must show that they timely submitted the bills in question, that the defendant failed to pay or deny said bills within thirty (30) days and that the injured party assigned his or her rights to the medical provider by signing an assignment of benefits. In many courts today, however, the plaintiff does not even have to show there is an assignment of benefits, let alone that it is valid. That is it! The plaintiff, the party that allegedly provided these medical services, does not even have to prove the services were medically necessary until the defendant first demonstrates that the services were not medically necessary, thus shifting the burden back to the plaintiff. In order to ensure that the defendant even reserves its right to deny the claim based upon medical necessity, though, the defendant must first deny the claim within thirty (30) days of receiving the bills or within thirty (30) days of receiving duly requested verification.

There are thousands of medical facilities and durable medical equipment companies within New York State, all of which fall under the no-fault regulations. With all of these facilities allegedly treating thousands of patients, the number of claims submitted to the insurance carriers is staggering; legitimate claims will sometimes go unpaid, but many times claims slip through that should be denied because there were just so many. Given only thirty (30) days to go through them all, the time limits are often missed. Insurance carriers are then forced to pay these claims unless there is fraud (and only a certain type), which tolls the statutory framework.

For the plaintiff, no-fault is a game of numbers. How many medical facilities can they represent? How many lawsuits can they serve in one day? How many assignors can be joined together on one lawsuit? How many motions can be filed in one day? How many settlements can be logged in one day? A plaintiff’s firm is an assembly line of lawsuits. With the push of a button, twenty unrelated causes of action can instantly become part of one lawsuit just because all of the assignors just happen to have treated with the same medical provider. Serve the lawsuit. Wait one week and serve discovery responses. Wait one month and serve a Motion for Summary Judgment. Then the defense firm has to scramble to oppose this motion that involves multiple assignors, involved in multiple unrelated accidents that are handled by different claim representatives and were denied for different reasons, and they must do this all within the one month that plaintiff has allowed before it appears on the court calendar. What happens is that even if the defendant miraculously pulls together opposition papers prior to the return date, the plaintiff will still request an adjournment to put in a reply to the opposition papers. If you are really lucky, then you happen to be in a venue where the adjournment date is almost one year away.

Fast forward one year to when this motion is finally heard. An attorney from each side will appear before the Judge and argue from his or her respective side and then the Judge renders a decision. There are always cases that the plaintiff will win, but many times the motion is denied because there are questions of fact that only a fact finder can decide at the time of trial. This is of course, if the plaintiff does not withdraw their motion prior to the Judge denying it. “Well, Your Honor, since it looks like you are going to deny this motion, rather than having a negative decision, and after waiting almost one year to argue it in the first place, our office will just withdraw our motion.” Ok, so maybe those exact words are not used, but in essence this is what happens on a daily basis. So now, between the time it took to draft the motion and the time it took the attorneys to appear both times (and sometimes more than twice depending on the venue) the insurance carriers have spent hundreds to thousands of dollars opposing this motion and it simply gets withdrawn.

There has to be a better way!

Editor’s Note: Heather Graziano is a graduate of Hofstra University School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York

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