Photo: kentoh/Shutterstock The IME and EUO No-Show Defenses Are 'Policy Issues' That Trigger Hourly Attorney Fees in No-Fault Insurance Cases
Insurers that seek to assert these defenses should remain cognizant of the fact that arbitration/litigation actions involving such disputes may expose them to higher attorney fees.
June 18, 2021 at 11:15 AM
10 minute read
Pursuant to Insurance Law Article 51, automobile insurers in New York are required to pay attorney fees when a no-fault action is resolved through settlement or as a result of a judgment or award in the health provider's favor. The provisions governing the amount of attorney fees to be paid are set forth in subsections 4.6(a)-(f) of 11 NYCRR 65 (the no-fault regulation).
Several years ago we wrote an article, "Policy Issues and Attorney Fees in No-Fault Litigation and Arbitration," concerning one of those attorney fee provisions—4.6(c). As we mentioned then, 11 NYCRR 65-4.6(c) states that "[f]or disputes subject to arbitration or court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney's fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400." 4.6(c) goes on to declare that "[i]n addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court." Therefore, while court and arbitration cases that do not involve a "policy issue" are generally subject 4.6(d), which calculates attorney fees as 20% of the sum of the principal and interest payable to the health care provider pursuant to award, judgment or settlement agreement, disputes that do involve a "policy issue" trigger the hourly fee calculations of 4.6(c). (There are also separate attorney fee provisions for matters involving appeals of arbitration decisions and master arbitration decisions, as well as for circumstances involving novel or unique disputes requiring extraordinary skills or services. See 11 NYCRR 65-4.10(j) and 4.6(e).) The no-fault regulations also stipulate that "[i]f the nature of the dispute results in an attorney's fee that could be computed in accordance with the limitations prescribed in both subdivisions c and [subdivision (d)]" then the subdivision with the higher calculations will apply. See 11 NYCRR 65-4.6(d).
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