Ever since the seminal decisions by the New York Court of Appeals in 1997 in Presbyterian Hospital in the City of New York v. Maryland Casualty Company1 and Central General Hospital v. Chubb Group of Insurance Companies,2 the contours of no-fault law have been relatively clear: With the “exceptional exception”3 of a narrow category of defenses classified as “lack of coverage defenses,” all other potential defenses to a no-fault claim, including that of lack of medical necessity, had to be asserted by a no-fault insurer in a timely denial of claim, to wit, within 30 days after the insurer’s receipt of the bill.4 Should the insurer fail to pay or deny the claim within 30 days or send a timely request for verification, it would be precluded from defending the claim.
As articulated by the Court of Appeals in Fair Price Medical Supply Corp. v. Travelers Indemnity Company, 5 the fundamental inquiry in determining whether a specific defense is subject to the sanction of preclusion or exempt therefrom under Chubb is whether “there was an actual accident and actual injuries.”6 If the answer to the latter question was in the affirmative, any defense to the claim would be subject to preclusion if not asserted by the insurer in a timely denial. However, a defense predicated on the grounds that the accident was an intentional event7 or that the alleged injuries did not arise out of the subject accident or were not causally related to the accident8 would be non-precludable and, thus, exempt from the 30-day rule.
