Callagy Law Arizona: June 2016

Monday, June 27, 2016

PIP Claims: Fee Shifting Allows for Arbitration at No Charge to the Medical Provider

The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.

The state-imposed fee schedules under the New Jersey No Fault laws, otherwise known as Personal Injury Protection or PIP, result in reimbursements to medical providers at levels that tend to be less than the usual and customary rates charged by those medical providers. This disadvantage, however, is offset, to some degree, by the fee-shifting provisions of the No Fault laws, which afford medical providers a tremendous benefit by enabling the provider to pursue arbitration without having to pay an attorney to do so. With very limited exception, discussed further below, the No Fault laws allow providers to pursue denied or underpaid claims at literally no cost to the provider—legal services and all.

PIP arbitrations are conducted before Dispute Resolution Professional or DRP’s. To bring a dispute before a DRP requires the payment of filing fees, in excess of $200 per claim. Although not mandatory, the hiring of legal counsel also accompanies the pursuit of a medical claim in arbitration. An attorney experienced with PIP and medical revenue recovery is almost a requisite to success in this arena. The good news is that most law firms that pursue PIP arbitration pay the filing costs for the provider and pursue the arbitration on the provider’s behalf without first having been paid anything. If the claim is successful and additional reimbursement is awarded to the provider, the insurance carrier pays the attorney separately for the expended filing costs and reasonable attorneys’ fees. If the arbitration fails, the provider pays the attorney nothing and the attorney is generally not reimbursed for the filing costs.

The one exception to this involves claims brought against PLIGA. PLIGA is the state-sponsored “fall-back” automobile “insurer” for those who do not have other automobile insurance. The fee-shifting provisions of the No Fault laws do not apply to PLIGA claims. Accordingly, law firms that pursue PLIGA claims for medical providers usually look to recover a contingent fee percentage, as well as the filing costs, from the provider’s awarded reimbursement.

We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $200,000,000 for medical providers, and that number grows daily. Our team of knowledgeable PIP Arbitration attorneys are ready to help you. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.

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PIP Claims: Fee Shifting Allows for Arbitration at No Charge to the Medical Provider

Tuesday, June 21, 2016

Callagy Law - Who We Are - What We Do

Callagy Law is fundamentally changing the way medical providers recover their money from the medical carriers, one case at a time.

We truly believe that providers need “an aggressive champion of the cause of proper reimbursement” on their side that fights for them with CARE, URGENCY and AGGRESSION and our amazing results are a direct reflection of this relentless pursuit.

Since 2006 we have recovered more than $200 million dollars and resolved more than 50 thousand claims for our providers such as physicians, hospitals and ASC’s as well as other types of medical providers. .

We take particular pride in the uniqueness of the Callagy law client experience in that we remain hands on with our clients through the

entire process of recovery.

From the introduction to our liaison members that assist the providers in gathering vital information for the litigation or arbitration process to our relentless settlement team that provide updates to the providers on regular bases through emails, calls, meetings and online database access.

We have created processes and set trends in the world of medical recovery over the years, specifically the PIP, Workers Compensation and the Commercial Insurance world while evolving into a successful multifaceted law firm, practicing business law, family law, wills, estates and trusts law and commercial / business litigation.

As published in the Star Ledger and The Record, Sean Callagy and the Callagy Law litigation team just returned home with their second 27 million dollar plus verdict in two years!

With “We believe good people deserve good things” as his motto, Sean Callagy shook the legal world. Despite of his visual impairment and being the underdog in this Arizona case, Sean and the Callagy Law team triumphed, making over 20 news publications.

Currently the Callagy Law family has nearly 80 professional and dedicated employees, operating out of New Jersey, New York and Arizona.

Whatever your situation, just know we are here to help. Please call us today: 201.261.1700.

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Callagy Law - Who We Are - What We Do

Thursday, June 16, 2016

Callagy Law – New Jersey, New York, Arizona | Lawyers Working For You!

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Visit Callagy Law’s website for full details: www.callagylaw.com

We are skilled attorneys in several different practice areas which include: Medical Revenue Recovery / Healthcare Recovery (PIP, Workers Compensation, and Commercial Insurance), Business Law, Commercial and Business Litigation, Family Law, and Wills / Estates / Trust Law.

We’ve received several awards from AVVO as well.

Please contact us today: 201-261-1700 | inquiries@callagylaw.com | www.callagylaw.com

We are headquartered in Paramus, New Jersey (Bergen County). We have offices in New York and Arizona as well.

We also offer FREE consultations! Call today.

Monday, June 13, 2016

Palliative Care Under New Jersey PIP Laws

As a claimant attorney in New Jersey PIP arbitration, I often seek reimbursement for treatment that was denied by insurance companies because the treatment was “palliative.” My response is, the palliative nature of the care is not ipso facto grounds to deny such treatment. Just like curative medical treatment, palliative care is compensable when medically necessary and reasonable.

What is “palliative care”? Palliative care is treatment that provides relief for the patient without curing the underlying cause of the symptoms. Dispute Resolution Professional (DRP) Fannan explained the standard to determine if palliative care is compensable under the New Jersey PIP laws in the Forthright Arbitration matter 1595197, as follows:

“Further, after treatment to effectuate a cure or rehabilitation has ended and the patient’s condition has plateaued, medical expenses for palliative treatment may continue, but only to the extent that such expenses are deemed reasonable and necessary. The reasonableness and necessity of palliative expenses must be evaluated in the context of the quantum of pain involved, plaintiff’s tolerance of pain and the overall effect of the pain on plaintiff’s life. Perun v. Utica Mutual Insurance Company, 280 N.J. Super 280, 285-86 (Law Div. 1994). The services must be shown by competent medical testimony to be such as are reasonable and necessary for the particular patient, taking into consideration his individual condition and need. Howard v. Harwood’s Restaurant Company Rest. Co., 25 N.J.

72 (1957). In determining what is reasonable and necessary, the “touchstone is not the (patient’s) desires or what he (sic) thinks is to be most beneficial. Rather it is what is shown by sufficient competent evidence to be reasonable and necessary to cure and relieve him (sic).” Squeo v. Comfort Control Corp. , 99 N.J.588(1995).”

By way of background, medical providers are expected to generally follow Care Paths, which are suggested general treatment paths to address injuries. For example, a Care Path may allow for a certain period of time of conservative care, and if the patient is still symptomatic, it may be time to “move up” the Care Paths to the next level of care. Perhaps injection treatment would be the next level of care following conservative care. There may be medical reasons to deviate from the Care Paths, and the treating doctor should explain the reasons for the deviation.

Let’s say the patient has been treated through all levels of the Care Paths for the injury at hand, but the patient is still suffering. Is palliative care still permitted and compensable under the New Jersey PIP laws. As noted above, generally palliative care is held compensable when it is medically reasonable and necessary. Elkins v. New Jersey Mfrs. Ins. Co., 203 N.J. Super. 695, 701 (App. Div. 1990). The PIP insurance carrier has a duty to provide payment for treatment which results in the alleviation of pain to the patient, even without regard to the curative aspect of that treatment. Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400, 413-414 (Law Div. 1984).

For example, Forthright DRP Miller ruled as follows in the Forthright PIP Arbitration matter 1337517:

“Medically necessary” is defined as treatment or a diagnostic test that is “consistent with the clinically supported symptoms, diagnosis or indications of the injured person”. In addition, that treatment is “the most appropriate level of service that is in accordance with the standards of good practice and standard professional treatment protocols including the Care Paths” and is “not primarily for the convenience of the injured person or provider”. N.J.A.C. 11:3-4.2.

The term “clinically supported” is defined in N.J.A.C. 11:3-4.2 and essentially means that there must be sufficient medical evidence and analysis to justify the performance of the requested treatment. This includes a physical examination, a review of both subjective complaints and objective findings, prior tests and a record of these observations and conclusions.

In addition, the treatment must be palliative or curative of a condition, not simply something that was provided for the patient’s personal comfort. See, Perun v. Utica Mut. Ins. Co., 280 N.J. Super. 280 (Law Div. 1994). See also, Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J. Super. 695 (App. Div. 1990); Miskofsky v. Ohio Cas. Ins. Co., 203 N.J. Super. 400 (Law Div. 1984); N.J.A.C. 11:3-4.2.

In sum, palliative care very well may be compensable under the New Jersey PIP laws. The treating doctor should explain the patient’s condition and the need for the medical treatment, whether curative or palliative.

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Palliative Care Under New Jersey PIP Laws

Friday, June 10, 2016

Divorce & Taxes | Callagy Law | Paramus, NJ | Bergen County

In the divorce context, all assets are not created equal and the Internal Revenue Service can alter what you thought were rather straight forward provisions for child support and alimony.

Consider the “child contingency rule” regarding alimony. IRS Publication 504 warns that if alimony payments are reduced or end around the same time as a child-related event, all alimony payments that were deductible to the payor and taxable income to the payee may be reclassified as child support instead of alimony. The payor would lose the deduction and pay retroactive taxes and the payee would receive a refund of taxes paid. A contingency relating to the child include (1) becoming employed (2) dying; (3) leaving the household; (4) leaving school; (5) marrying; or, (6) reaching a specified age or income level. This reclassification can be avoided if it can be established that any reduction in alimony was determined independently of a child-related contingency, which would be the normal circumstance. For example, if you can show that the period of alimony payments is customary in the local jurisdiction, such as a period equal to one-half of the duration of the marriage, you can overcome the presumption and may be able to treat the amount as alimony.

Also consider the income tax burden of certain assets that are being divided up as part of a divorce settlement. Investment accounts that hold stocks, mutual funds, etc., may carry different tax basis which may result in different unrealized gains or losses which can result in significantly different capital gains taxes. Investment assets must be viewed on a tax-neutral basis to assure an equal distribution and sharing of capital gains taxes. The $1 million dollar investment account, which may have unrealized gains that will subject to capital gains taxes is not equal to $1 million in cash and an straight up off-set would be an unequal distribution of the assets.

Your family lawyer should have a grasp and understanding of these tax concepts and be able to navigate you through such issues to assure that the distribution of assets is fair and equitable.

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Divorce & Taxes | Callagy Law | Paramus, NJ | Bergen County

Thursday, June 9, 2016

Attorney perseveres despite debilitating vision loss

BY BRETT CARROLL

STAFF WRITER |

PASCACK VALLEY COMMUNITY LIFE

Original Article Posted Here: http://www.northjersey.com/news/business/small-business/attorney-perseveres-despite-debilitating-vision-loss-1.1612645?page=all

Sean Callagy, owner of Callagy Law in Paramus, suffers from Retinitis Pigmentosa, a rare disease that causes certain cells in the retina to start to die; he has been slowly losing his vision over the past five years. According to the National Eye Institute, the disease progresses, impairing vision, when proteins in the cones that make up the retina stop producing and the cells die. Because of this, Callagy, a River Vale resident, has a hard time seeing important details of the things in front of him, and at this point can only see the blurry silhouette of them.

“It’s like looking through a straw,” Callagy explained. “My peripheral vision is a lot better, but things that are in front of me are usually very blurry.”

Callagy was diagnosed with the disease when he was five years old, but didn’t begin to notice problems with his sight until he was a teenager. Over time, the disease continued to impair his vision, and he is now classified as legally blind. But despite the heartache that comes with losing his vision, Callagy has learned not to take anything in life for granted, and pushes himself further to be the best he can be, and make a difference in other people’s lives – perseverance he said comes because of the hand he’s been dealt.

The disease progresses

The attorney has recently had to give up driving and can no longer read court documents without assistance. But he says the worst part of the disease has been the way his lack of vision has hurt his ability to watch his kids grow.

“It hurts when I’m trying to watch my kids play soccer,” Callagy said. “I have to just focus on them. If they kick the ball, I have no idea where it goes, so I try to just follow them. I tend to lose track of them with everything that goes on, but I try my best to keep up. To me, that’s been the hardest part. I can’t enjoy watching them grow up the way I would love to.”

Callagy also talked about how his vision has hampered his ability to scuba dive and some of the other activities that he does with his family. He praised his family for their understanding and patience, and expressed how much help they have been.

“Vacations can be rough too,” he said. “There might be 50 fish right in front of you, but I can only see five. My family is amazing though, they are just so understanding and supportive. I couldn’t do this without their support.”

Callagy grew up as a baseball player in Emerson. He played baseball for Columbia University in 1992 and was even told that he could be drafted in the Major League Baseball draft. During his senior year, however, the disease started to really affect his play, causing him to lose track of fly balls in the outfield. In a game against Army, Callagy dropped a fly ball with the bases loaded, causing his team to lose the game. The MLB took notice, and Callagy never got his chance to play in the majors.

“On a cloudy day, it was hard to track the ball,” Callagy explained. “I would drop like one of every 50 balls, but in the majors, that’s still too much.”

Callagy explained that sitting through the draft was one of the hardest things that he had to do.

“It was really rough,” he said. “Imaging sitting there by the phone for three days waiting for a call, knowing that you won’t ever get one, but you’re just hopeful you will. It was hard for sure.”

Inspired to take a chance

After his baseball career was over, Callagy went into banking, working for a bank in New York for a year. He then decided to go to law school, hoping that he would be able to use his law degree to help people. He started working for a big firm, but left shortly after starting because he didn’t like how the firm treated their clients. After leaving the firm, Callagy sought counsel from doctor and friend Dr. Charles Berg, who prompted Callagy to read “Awaken the Giant Within” by Tony Robbins. The book explains how we all have something special inside of us, and gives tips on how to bring that special something out of us.

“That book changed everything,” Callagy said. “It gave me the inspiration to start doing my own thing, and to take a chance.”

Callagy started his own law firm in 2003 and had 40 people working for him. He also started his own educational company that year, after he realized how much he loved coaching and teaching people. In 2006, he started Callagy Law, with the company’s foundation built around the principle of education.

Since the disease has really begun to take hold over the past five years, Callagy said he’s had to memorize everything from his trials, and credits his lack of vision for making him an even better lawyer.

“My situation created a sense of urgency for me,” he explained. “Despite my disability, I knew I was the best lawyer in the room. What’s even better is the fact that everyone in the room knew it as well. That’s how my situation has been a benefit. We’ve won some really big cases in the past few years, and it’s all thanks to the dedication of my entire staff. We’re all growing and learning from this, which is really great.”

Callagy Law has won over $27 million in verdicts during the past two years, during the same time that Callagy’s vision started to take a turn for the worst.

Retinitis Pigmentosa will skip the next generation, but one of Callagy’s daughters most likely carries the trait. If she has a son, he most likely will get the disease, just like Callagy and his grandfather, the lawyer said. According to the United States Library of Medicine, Retinitis Pigmentosa typically affects more males than females and males’ symptoms are usually more severe. Callagy explained that the disease has no cure, but researchers are making huge strides in three areas.

“Right now there’s no cure but there are options out there,” he said. “The three big areas where research is going towards are the bionic eye, gene research, and stem cell research. It’s all about continuing to spread the word about the disease and continue to get funding for it.”

Despite the disease, Callagy has stayed positive throughout his journey and thinks that the situation has led him to help people even more than ever.

“Every day I ask myself the same question,” Callagy said. “How can I do more? What else can I do to help? I’ve learned to appreciate the little things, and that’s always been my message to others. We always take things for granted. I don’t do that anymore.”

Email: carroll@northjersey.com

Attorney perseveres despite debilitating vision loss

Wednesday, June 8, 2016

FAA Wins Bergen County Charity Classic in Final Appearance

FAA Family,

The FAA Phoenix won the Bergen County Charity Classic 16u Club Division in its final all-time appearance in the tournament.

Thank you to all the people who run this great tournament that raised over 100,000 for charitable causes. As always, it is a ton of fun to play a quality tournament in our home county.

It wasn’t our most impressive offensive effort, but we finished the job with a 2-1 victory over the LIB Expos.

Missing four outstanding players last night, including Joey Parsons and Johnny Apogar, who had big days with a hit and rbi and a save respectively, to help Waldwick reach the state finals for the Group 1 State Championship.

Jordan Issakedes and Travis Byrne combined to give up 1 run over 10 innings and a suicide squeeze by Jordan brought home the winning run in the 10th as Travis scored.

The FAA offense that had been roaring through the tournament was quieted in the 2-1 victory, but we did enough. Truth be told, we threatened in almost every inning but our normally clutch hitters weren’t getting our normal big hits.

In total, the FAA outscored our opponents 59-10 in the tournament over a 6-0 run through the BCCC. In addition to the above named, Chris Liriano scored a ton of runs, Tyler Callagy, Logan Butler, Travis Byrne and Anthony Rota (overall hit leader) led in hits with 29 combined, Andrew Rodriguez had some key hits and made a huge pick in a key spot in the championship at first, Luca Poliandro had big hits in the playoffs and picked off a runner in a huge spot in the championship game, Mike Roll picked up 2 wins in the playoffs, dominating in the semi-final, Ricky Lutz patrolled center field with his usual grace and ease, Brock Lombardi and Luke Lombardi chipped in with offensive and defensive help,

Many of our players have been playing in the BCCC since they were 10 years old. It is bitter sweet to have this one be over. The championship was terrific, but knowing that our boys are getting older and will never again play in the BCCC as it ends at 16u, brings both feelings of nostalgia and a bit of sadness.

The FAA parents were as always, terrific and supportive last night and throughout the tournament. However, we do need to unleash the Faa’s one and only Peter Poliandro who seems to have mellowed a bit in the 2016 campaign. We need a few “legs go, go, go, boys!”

I for one will be cherishing every pitch of every game all summer long. As my dear friend Bob Perry loves to say, “it doesn’t have to be this way.” We are so blessed and fortunate in the crazy cut throat world of club baseball to have built our FAA family, and I am so thankful for it.

This week, we take the FAA traveling road show to LBI. Friday afternoon and Saturday a.m. it will all be about body surfing and the beach. Saturday afternoon we take on the CK Cardinals, who have a typically strong program. We took second in LBI in the Fall, and we will be looking to change that this weekend.

Of course, good luck to Johnny, Joey, and yes, I guess Waldwick (lol, which is tough to say coming from Emerson–who did beat Waldwick for the league title this year guys!). Seriously though, bring it home for your team, your family, yourselves and the FAA program. You’re making incredible lifetime memories, and I hope this one has the perfect happy ending.

See you down the shore, where everything’s all right….

Coach Callagy

FAA Wins Bergen County Charity Classic in Final Appearance

How To Get A Big Jury Verdict from a Guy That Got 60 Million Total in 2 Years

Lie, cheat, steal, swindle, manipulate and spin the facts. Yes, this is the picture most people have of lawyers and our legal system. Sadly, in many cases, those impressions are quite accurate.

However, that isn’t the way to truly win in our legal system. This article will briefly touch on the real keys.

My name is Sean Callagy, the founder and President of Callagy Law, a New Jersey, New York and Arizona law firm.

In 2014 I obtained a 33 million dollar verdict. In 2016 I obtained a 27.5 million dollar verdict. That puts me in a micro percentage group of attorneys who can make that statement.

Matt Damon, in the Rainmaker, makes a profound comment at the end of the movie when he decides to leave the law after an amazing victory of truth over lies. Essentially, Damon’s character muses that to keep doing it, he would likely need to become the evil he just defeated. The same evil he asked if he even remembered when he sold out.

Often, I feel that way in this profession. The amount of lies and gamesmanship that exist is enough to make any decent human being want to quit the human race. Then, you find your fair share of judges who let it go on, and even enable it.

So, if you can’t beat ’em, join ’em, right?

Wrong.

Integrity, authenticity and incredible hard work are the real secrets to success in our greatest system of lie detection on earth: the jury trial.

I believe that liars only win when they come up against the less skilled or hard working attorney.

The great benefit of dealing with liars in any case is that they don’t know when to stop lying. They lie so much that they begin to believe their own lies. Judges can become quite anesthetized to lying as well.

Juries, however, despise liars and lying. If you tell one lie as a lawyer, and the other guy approaches matters with integrity, then the liar is in huge trouble every time.

You see, juries, like all people, want to believe and find good in our system. They don’t expect to, but are very pleasantly surprised when they do. It restores their faith.

I believe that most attorneys don’t get this. They will try to hide, duck, dodge or flat out lie, to avoid problems in their cases. That may work for awhile, but it doesn’t work before a jury.

In both of these cases where I had the privilege of representing my clients, I believe the truth came shining through to the jury. That truth included acknowledging certain realities about the parties and the issues.

However, it is not enough to acknowledge a problem and gloss over it. Everyone says “draw the sting” from your problems. The real question is whether the jury believes what you believe. Your credibility, as a lawyer, is everything in front of the jury. Try to cheat on reality just a bit, and you are the lying lawyer they expected. Then, you better hope that the other man or woman is also seen as a lying lawyer and hope the jury believes you and your client is the lesser of two evils.

On the contrary, wouldn’t it be easier to be the voice of integrity, and therefore authority, in the court room?

It takes a ton of work to make this type of presentation. Like Matt Damon suggested though, would you want to do it any other way?

If you would ever want to discuss “how” to do this with a person who’s been blessed to do it, then please reach out and contact me.

By the way, the jury awarded 8 and 16 million in punitive damages in these two cases. How do you think the juries perspective on integrity and authenticity factored into those verdicts?

Sean Callagy, Owner / Founder of Callagy Law

“Fundamentally Changing the Way People Feel About Lawyers, One Client at a Time.”

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How To Get A Big Jury Verdict from a Guy That Got 60 Million Total in 2 Years

When Do Questions become Contests: Navigating Non – Contestation Clauses in Wills and other Testamentary Documents

The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, the court system, and other procedures within business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.

“No-Contest” clauses in wills are, in an ideal world, used by testators with the thought that they will limit post death litigation between the beneficiaries in their wills. These clauses, also called “in terrorem” clauses, provide that if one party or beneficiary in a will “contests” or challenges the will in some way that party will lose their inheritance. While some states do not enforce these clauses, New Jersey still does.

Occasionally, a situation will arise where the intentions of the testator are not clear, and one or more of the parties and beneficiaries will disagree as to how the will should be interpreted. For instance, a will may provide that all of the costs associated with funeral expenses be paid out of the estate before any distribution is made to the beneficiaries. The beneficiaries end up in a situation where one party claims that certain expenses are “funeral costs” under the will, and the other party disagrees. The will has a no –contest clause, which provides that if a party contests any part of the will in court, that party will lose their inheritance. Are both parties now stuck, unable to get the Court’s direction and help in interpreting this provision and risk losing their inheritance? The answer is no.

Obviously, one answer would be for the parties to work it out between themselves, but sometimes it is not possible to come to an agreement. Under New Jersey law, if a term in the will is unclear, a beneficiary who asked court to construe provisions of will which they and trustees interpreted differently does not forfeit their rights to benefit under a no contest clause. Morrison v. Reed, 6 N.J. Super. 598, 604 (Ch. Div. 1950). Fortunately for beneficiaries in New Jersey, no – contest clauses are to be construed strictly against a forfeiture and reasonably in favor of a beneficiary. Girard Trust Co. v. Schmitz, 129 N.J.Eq. 444, 20 A.2d 21 (1941). That beneficiary is not filing a caveat or otherwise challenging the will itself, but merely, as New Jersey Court have held, asking for guidance and interpretation while attempting to get what that beneficiary believes the testator, by their will, intended for them.

However, each Will is unique, and each “no-contest” clause must be carefully reviewed before any litigation is filed to insure that it does not otherwise run afoul of other potential pitfalls contained in the language of the will. Any beneficiary who is seeking to have the Court interpret a provision should have an attorney review the will prior to instituting any action.

See our blog post on CONTESTING A WILL IN NEW JERSEY.

We hope you found the information provided in this article helpful to your everyday life and business. Please free to reach out to Sean Callagy or the Callagy Law team at any time for questions you may have concerning personal and business matters. Callagy Law’s headquarters is located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of business legal practice and business coaching, if you need help with anything, please reach out to us by calling 201-261-1700 or by emailing us here. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.

Learn More About Callagy Law Here:

When Do Questions become Contests: Navigating Non – Contestation Clauses in Wills and other Testamentary Documents

Tuesday, June 7, 2016

DEFAULT JUDGMENTS IN NEW YORK | Callagy Law

Knowledge about particular portions of the legal process are starting or, or already have become, common knowledge. For example, most individuals know a civil suit commences with a Complain and in response a defendant files an Answer. This general knowledge impacts a plaintiff’s expectations when initiating the suit, and most do not anticipate the Defendant not answering. Yet, this happens all too often.

A non-answering Defendant can certainly stymie a plaintiff’s expectations to quickly resolve the dispute between the Parties. However, there exist procedural mechanisms to continue litigating a suit even when a Defendant does not answer. One of these procedural mechanisms is called default judgment.

In New York, the statute governing default judgment is the C.P.L.R. 3215. Since, there exist many possibilities of who is moving for default judgment, why and who they are moving against, a hypothetical plaintiff will demonstrate what to do in a particular scenario. To this effect, I will use John Smith. John Smith is moving for Default Judgment in a contract related case for exactly $10,000.00 and served the Defendant, James Doe, by way of personal service. Importantly, John Smith is moving for Default Judgment in less than one year since James Doe was supposed to answer.

John Smith would draft a motion covering the following points, (1) articulating the exact sum James Doe owes him, (2) stating James Doe defaulted by not answering less than one year ago, (3) attaching and describing the method of proper service of process, (4) a description of the facts of John Smith’s claim and (5) additional notice pursuant to C.P.L.R. 3215(g).

Concerning the additional notice of C.P.L.R. 3215(g), John Smith – moving for default judgment on a contract claim against a real person – would need to mail, at least twenty days before judgment is sought, a copy of the summons by first-class mail at James Doe’s place of residence bearing the legend “personal and confidential and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt.

It is important to note, that the process of default judgment is subject to change depending on who the defendant is, e.g. a real person or a corporate entity, and whether the plaintiff can articulate sum certain how much they are owed. Additionally, it is imperative the defendant in your action was served properly. A defect in service of process can be fatal to a motion for default judgment.

Regardless, default judgment is a plaintiff friendly procedural mechanism to propel litigation forward when a defendant fails to answer a complaint.

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DEFAULT JUDGMENTS IN NEW YORK | Callagy Law

Friday, June 3, 2016

The Definition of “Payment” When Calculating The Statute of Limitations in PIP Arbitration Matters

The question of what constitutes payment for the purpose of calculating the Statute of Limitations in a PIP Claim for Benefits was recently addressed by our office in the Context of a PIP Arbitration filed on behalf of one of our Medical Provider’s.

The issue our Provider faced, as presented by CURE Insurance, was whether the Provider’s Claim was barred by the application of the 2 year statute of limitations period in connection to the filing of a PIP Arbitration Matter.

In relation to the calculation of the Statute of Limitations time period when filing a PIP Claim for Benefits, N.J.S.A. 39:6A-13.1(a) states:

Every action for the payment of benefits payable under a standard automobile insurance policy pursuant to sections 4 and 10 of P.L. 1972, c. 70 (c. 39:6A-4 and 39:6A-10), medical expense benefits payable under a basic automobile insurance policy pursuant to section 4 of P.L. 1998, c. 21 (c. 39:6A-3.1) or benefits payable under a special automobile insurance policy pursuant to section 45 of P.L. 2003, c. 89 (c. 39:6A-3.3), except an action by a decedent’s estate, shall be commenced not later than two years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than four years after the accident whichever is earlier, provided, however, that if benefits have been paid before then an action for further benefits may be commenced not later than two years after the last payment of benefits.

(emphasis added).

Specifically, the facts of our matter showed that while there were no actual pip benefits paid by CURE, it was undisputed that CURE received the Provider’s Bill and processed the bill, applying the eligible amount (as determined by CURE) to the patient’s policy deductible.

Our office relied on the case of George C. Everett v. State Farm Indemnity Co., 358 N.J. Super. 400 (App. Div. 2002), wherein the Appellate Division found that the term “last payment of benefits” as used in N.J.S.A. 39:6A-13.1(a) is consistent with and includes the adjustment of a bill and application of that bill to the patient’s deductible.

Specifically, our office highlighted that in Everett, 358 N.J. Super. at 379, the Court found:

“since the bill was an expense caused by the accident, we conclude that the process of adjusting the bill to the fee schedule and applying the balance to the deductible constituted a ‘last payment of benefits’ under the Act, making the plaintiff’s complaint, which was filed within two years of that date, timely.”

Our office maintained that based on the determination of the Court in Everett, even though the adjustment/ processing of the Provider’s bill in this matter resulted in no more than a credit against the patient’s deductible, this was considered a benefit to the insured and therefore the date of processing of the bill sets the statute of limitations period once again.

In considering the above arguments, DRP Gary T. Lesser, Esq., in NJ-1644666 determined that based upon the Everett matter, the two-year statute of limitations commenced anew with the processing the bill and application of the payment against the patient’s deductible. As such, the Statute of Limitations period did not expire prior to the Provider’s filing of the PIP Demand for Arbitration. Therefore, as a result, the Provider had standing to Proceed with the underlying PIP Claim for Benefits.

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The Definition of “Payment” When Calculating The Statute of Limitations in PIP Arbitration Matters