In our October 2013 No-Fault Insurance Law Wrap-Up column,1 we reported on Okslen Acupuncture v. Wrynn,2 and the reported failure, at the time, of the Department of Financial Services (DFS) to amend the attorney fee provisions of the No-Fault Regulations since 1988. Now, 16 months later, the DFS has indeed enacted an amendment of the attorney fee provisions,3 which amendment will likely have an impact on the filing and prosecution of future no-fault cases.
Insurance Law §5106(a) provides, inter alia, that a no-fault insurance “claimant shall also be entitled to recover his attorney’s reasonable fee…” The corresponding regulation, 11 NYCRR 65-4.6, provided, inter alia, that attorney fees were limited to 20 percent of the principal and interest recovered, subject to a minimum of $60 and a maximum of $850. The petitioner in Okslen Acupuncture brought suit for a declaration that the failure of the Superintendent of Financial Services (previously, the Superintendent of Insurance) to promulgate regulations so as to grant “reasonable” attorney fees to prevailing no-fault providers, and his failure to update the fees in place, was an abuse of discretion, and further to compel the Superintendent to review and amend the attorney fee provisions of the No-Fault Regulations.
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