Appellate Division, Third Department Recent Decision on Attorneys' Fees in No-Fault Context

Within the No-Fault context, how should the arbitrator or court award counsel fees where a medical provider seeks reimbursement on multiple claims?  Is counsel entitled to an attorney's fee in the amount of $60 or 20% of the amount of the bill, plus interest thereon, subject to a maximum of $850 per assignor or per claim?

The New York Superintendent of Insurance states in this opinion that counsel fees should apply per assignor, not per claim.  In Alpha Chiropractic P.C. v. State Farm Mut. Auto. Ins. Co., Civil Court, Queens County (Siegal, J.), parted ways with the Superintendent and held counsel fees should apply per claim.   Civil Court, New York County in Marigliano v. New York Cent. Mut. Fire Ins. (Hagler, J.), also parted ways with the Superintendent.

Just recently, the Appellate Division, Third Department in LMK Psychological Servs. v. State Farm Mut. Auto. Ins. Co. also held that attorneys' fees should be calculated on a per claim basis.  The Court concluded that the Superintendent's interpretation was not a proper one under Insurance Law sec. 5106 and, therefore, the Court did not give the Superintendent's opinion deference.

Dave over at No-Fault Paradise makes a very poignant observation about the impact of LMK (see post here).  Because the Third Department is the only appellate court in the state to opine on the issue, all trial courts throughout the state must follow the holding until an appellate court within their Department rules otherwise.

Thank you to Jon for bringing the opinion to my attention.

Comments

[Matt]

Thank you to Dave Barshay at Baker, Barshay et al. for gracefully pointing out my prior citation to the incorrect Marigliano decision and reference to Supreme Court and not Civil Court. Dave's post is reproduced below:

***DONT POST***

Matt,

"your post is incorrect. Sweeney's decision is civil, not supreme, and it AGREED with the DOI opinion letter. There is a second marigliano case from NY civil (hagler) that disagreed with Sweeney and DOI. However, the big decision was Aplha v. SF, 14 Misc.3d 673."
Dave

[Nelson Timken]

The first decision to address this issue, upon which Judge Siegal relied in her decision was A.M. MEDICAL SERVICES PC v. NEW YORK CENTRAL MUTUAL FIRE INS. CO., 030041/2002, published in the NYLJ, 7/24/06, decided by Judge Thomas D. Raffaele, for whom I work, which rejected the NYS Insurance Department's opinion letter fixing maximum fees in the aggregate at $800.00.