The IME and EUO No-Show Defenses Are ‘Policy Issues’ That Trigger Hourly Attorney Fees in No-Fault Insurance Cases

By On Jun 18, 2021

Article 51 of the Insurance Act requires motor insurers in New York to pay attorney’s fees when a no-fault lawsuit is settled by settlement or as a result of a judgment or arbitration in favor of the health care provider. The provisions regarding the amount of attorney’s fees payable are set out in subsections 4.6 (a) – (f) of 11 NYCRR 65 (Fault Regulation).

A few years ago we wrote an article entitled “Policy Issues and Attorney Fees in No-fault Litigation and Arbitration” referring to one of these attorney fee provisions – 4.6 (c). As we mentioned at the time, 11 NYCRR 65-4.6 (c) states that “[f]or disputes that are the subject of an arbitration or legal proceeding if any of the matters relates to a policy issue as set forth on the Mandatory Denial of Claim Form (NYS Form NF-10), subject to this section, the arbitration or litigation attorney fee for all of the expenses are up a charge of up to $ 70 per hour, subject to a maximum charge of $ 1,400. “4.6 (c) further states that”[i]In addition, an attorney is entitled to a fee of up to $ 80 an hour for each personal appearance in the arbitration or court. who calculates attorney’s fees as 20% of the sum of principal and interest payable to the healthcare provider under the arbitration award or settlement agreement will result in disputes involving a “policy issue” triggering the hourly fee calculation of 4.6 (c). (There are also separate attorney fee provisions for matters involving appeals against arbitral awards and major arbitration awards, as well as for circumstances involving novel or unique disputes that require exceptional skill or service. See 11 NYCRR 65-4.10 (j) and 4.6 (e). ) The no-fault regulation also provides that “[i]f there is an attorney’s fee due to the nature of the dispute, which may be calculated in accordance with the limitations of two subsections c and [subdivision (d)]“Then the subdivision with the higher calculations applies. See 11 NYCRR 65-4.6 (d).