Aetna Health Plans,, Appellant,v.Hanover Insurance Company, Respondent.BriefN.Y.May 4, 2016APL-2015-00009 New York County Clerk’s Index No. 303241/12 Court of Appeals STATE OF NEW YORK AETNA HEALTH PLANS, as assignee of LUZ HERRERA, Plaintiff-Appellant, against HANOVER INSURANCE COMPANY, Defendant-Respondent. >> >> REPLY BRIEF FOR PLAINTIFF-APPELLANT SHAYNE, DACHS, SAUER & DACHS, LLP Attorneys for Plaintiff-Appellant 114 Old Country Road, Suite 410 Mineola, New York 11501 516-747-1100 Appellate Counsel to: HARRY I. KATZ, P.C. 61-25 Utopia Parkway Fresh Meadows, New York 11365 718-463-3700 Of Counsel: Jonathan A. Dachs Date Completed: May 8, 2015 To Be Argued By: Jonathan A. Dachs Time Requested: 15 Minutes TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I D E F E ND A N T -R E S PO N D E N T H A N O V E R ’S DEFENSES TO THIS ACTION ARE PRECLUDED AND, IN ANY EVENT, INVALID. . . . . . . . . . . . . . . . . . . . . . . . . . 3 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 -ii- TABLE OF AUTHORITIES Page CASES: 3105 Grand Corp. v. City of New York, 288 NY 178, 182 (1942) . . . . . . . . . . . . 10 A.M. Medical Services, P.C., v. Progressive Cas. Ins. Co., 101 AD2d 53 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12 Allstate Ins. Co. v Stein, 1 NY3d 416, 422 (2004) . . . . . . . . . . . . . . . . . . . . . 10, 16 Becerril v. City of New York, 110 AD3d 517, 519 (1st Dept. 2013) . . . . . . . . . . . . 3 Bua v. Purcell & Ingrao, 99 AD3d 843, 846 (2d Dept. 2012) . . . . . . . . . . . . . . . . 3 Byrne v. Ouster Trucking, Inc., 386 F.Supp. 2d 386, 391 (S.D.N.Y. 2005) . . . . . 16 Catskill Natl. Bank v. Dumary, 206 NY 550, 559 (1912) . . . . . . . . . . . . . . . . . . . . 4 Eagle Ins. Co. v. ELRAC, Inc., 291 AD2d 272 (1st Dept. 2002) . . . . . . . . . . . . . . 10 Fair Price Med. Supply Corp. v. Travelers Indem. Co. 10 NY3d 556 . . . . . . . . . 8 Fidelity General Ins. Co. v. Aetna Ins. Co., 27 AD2d 932 (2d Dept. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hartford Acc. & Indem. Co. v. CNA Ins. Cos., 99 AD2d 310 (1st Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Health Insurance Plan of Greater New York v. Allstate Ins. Co., 2007 N.Y. Slip Op. 33925(U), 2007 WL 4367045 (Sup. Ct. N.Y. Co. 2007) . . . . . . . . 12 Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168 (1st Dept. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 -iii- Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 (1975) . . . . . . . . . . . . . . . . . 4 Lichtman v. Grossbard , 73 NY2d 792 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Mas v. Two Bridges Assoc, 75 NY2d 680, 690 (1990) . . . . . . . . . . . . . . . . . . . . . 17 Nelson v. Times Square Stores Corp., 110 AD2d 691 (2d Dept. 1985) . . . . . . . . . 7 Peoples Commercial Bank v. Jerry Greene Distributing, Inc., 149 AD2d 774 (3d Dept. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Pierce v. City of New York, 253 AD2d 545 (2d Dept. 1998) . . . . . . . . . . . . . . . . 10 Scheemaker v. State of New York, 70 NY2d 985 (1988) . . . . . . . . . . . . . . . . . . 7, 13 Schwartz v. Merola Bros. Const. Corp., 263 AD 631 (1st Dept. 1942), aff’d. 290 NY 145 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Teichman v. Community Hosp. of Western Suffolk, 87 NY2d 514 (1996) . . . . . . 16 Viviane Etienne Med. Care, P.C. v.Country-Wide Ins. Co., 114 AD3d 33 (2d Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Westbank Contracting, Inc. v. Rondout Valley Cent. School Dist. 46 AD2d 1187 (3d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Winkelmann v. Excelsior Ins. Co. 85 NY2d 577 (1995) . . . . . . . . . . . . . . . . . . . . 16 STATUTES: 11 NYCRR §65-3.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14 TREATISES: 71 N.Y. Jur. 2d §2360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PRELIMINARY STATEMENT This Brief is respectfully submitted on behalf of the Plaintiff-Appellant, Aetna Health Plans (“Aetna”), in reply to the answering Brief submitted on behalf of the Defendant-Respondent, Hanover Insurance Company (“Hanover”). As has been demonstrated, and as will again be demonstrated herein, the doctrine of estoppel against inconsistent positions, otherwise known as “judicial estoppel,” bars Hanover from contending that Aetna lacks standing -- a position that Hanover has wholly failed to address, let alone refute, in its answering Brief. In addition, and in any event, by its admitted failure to issue a denial of claim within the requisite 30-day period -- or for that matter, at any time -- Hanover waived any defense it might have otherwise been entitled to assert, including the defense of standing. In addition, Hanover’s contention that only the insured or his or her medical provider assignee has standing to sue to recover the amount of No-Fault benefits that should have been paid by the No-Fault insurer, payment of which was not made despite being overdue, is patently incorrect. Under general principles of subrogation and/or indemnification, Aetna, which paid on behalf of its assignee/subrogee, Luz Herrera (“Herrera”), benefits that should have been covered and paid by Hanover, the No-Fault insurer, was and should be entitled to seek reimbursement from Hanover for such payments. This approach is the least burdensome and least wasteful method of ensuring that the obligations are paid -2- by the party legally responsible therefor, and is the best method of ensuring that the laudable goals of the No-Fault law, which include prompt and efficient recourse to medical care and prompt payment of claims are met. Accordingly, for the reasons set forth more fully below, and in Aetna’s initial Brief, the Decision/Order appealed from should be reversed, with costs, and summary judgment should be granted to Aetna for the amount demanded in the Complaint, plus interest and attorneys’ fees. -3- POINT I D E F E ND A N T - R E S P O N D E N T H A N O V E R ’S DEFENSES TO THIS ACTION ARE PRECLUDED AND, IN ANY EVENT, INVALID. Significantly absent from Hanover’s answering Brief (as it was from its Reply Brief, below) is any discussion, let alone refutation, of Aetna’s contention (at pp. 25- 27 of its initial Brief herein) that Hanover’s inconsistent position taken herein from that which it took in the prior arbitration proceeding as to who is the proper party to seek recovery from Hanover of benefits paid violates the doctrine against inconsistent positions, also known as the doctrine of “judicial estoppel.” That doctrine “prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed.” Becerril v. City of New York, 110 AD3d 517, 519 (1st Dept. 2013); see also, Bua v. Purcell & Ingrao, 99 AD3d 843, 846 (2d Dept. 2012); Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168 (1st Dept. 1998). As such, Hanover, which successfully contended at arbitration that Herrera lacked standing to make claim against Hanover because she had already been paid [by Aetna], and, instead, Aetna [inartfully referred to as “[t]he Applicant’s health care provider,” rather than “health care insurer”] was the proper party with standing to assert the claim for reimbursement of medical expenses incurred as a result -4- of Herrera’s motor vehicle accident, should be deemed to concede the validity of Aetna’s arguments, and should be estopped from contending otherwise. See Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 (1975). In a similar vein, Hanover, which previously successfully argued that this action was properly to be brought by Aetna rather than Herrera, ought not now to be able to argue that the action should be dismissed because Aetna is not in privity of contract with Hanover. In any event, as previously noted (at pp. 27-29 of Aetna’s initial Brief), Hanover’s lack of privity argument is erroneous and unavailing. It is well-established that privity of contract is not essential to the existence of Aetna’s implied right of indemnity (Schwartz v. Merola Bros. Const. Corp., 263 AD 631 [1st Dept. 1942], aff’d. 290 NY 145 [1943]), or under the doctrine of subrogation. Catskill Natl. Bank v. Dumary, 206 NY 550, 559 (1912) (“The right of subrogation . . . does not depend on privity, or is it confined to cases of strict suretyship”); Peoples Commercial Bank v. Jerry Greene Distributing, Inc., 149 AD2d 774 (3d Dept. 1989) (“In this case, plaintiff mistakenly discharged Santos’ debt to Greene and, therefore, plaintiff was entitled to be subrogated to the rights of Greene against Santos, even though there was no privity between the parties. . .”) -5- Hanover’s answering Brief is also noticeably reticent on the important subject of the consequences for the assertion of defenses of its failure timely and/or properly to deny the claims presented to it for payment. Hanover has not disputed -- and cannot dispute -- that it never issued a denial of claim herein. As previously noted in Aetna’s initial Brief, Hanover did not respond to Aetna’s initial request, through its representative, The Rawlings Company, for reimbursement of the medical bills Aetna had paid out, which were evidenced at that time solely by a list or chart of dates of service, names of providers, and billed amounts [63-68], and did not issue a denial of claim [13, 63-68]. After Aetna (by Rawlings) sent Herrera a lien letter, advising of its rights, under its ERISA-qualified plan, to recoup out of Herrera’s recovery in the underlying lawsuit the payments it made to her medical providers on her behalf [13], Herrera’s attorney submitted, first on January 6, 2010 [69-86], and then again, on February 6, 2012 [94, 26-52, 96-170], a series of documents, including a list of charges from Lawrence Hospital Center, and numerous Health Insurance Claim forms from various health care providers, for which he also sought payment from Hanover (in order to satisfy Aetna’s lien). Notably, counsel’s cover letters [69, 94] expressly referred to those documents as “outstanding bills” and presented them as such, and requested Hanover to either “pay these bills or issue us a denial within 30 days.” If Hanover had a problem with, or an objection to, the terms or content of the documents -6- submitted to it as bills, it was required to so note in the form of a timely denial. Again, however, Hanover failed to respond in any way to those submissions, and never issued a denial of claim with respect thereto [6, 14]. Hanover’s contention (set forth at pp. 26-28 of its Brief), that it was not required to assert a timely denial because it “never received bills seeking reimbursement,” is without merit and unavailing. As previously noted, and as supported by the Record, when Herrera’s counsel submitted the documents to Hanover, he characterized and presented them as bills. Indeed, not only did he call them “bills,” he specifically requested/demanded that they “immediately” be paid, or denied, within 30 days [69, 94]. Upon receipt of those documents and cover letter, Hanover had several available options: it could have informed Herrera’s attorney that the documents were not, in fact, “bills,” his characterization thereof notwithstanding, and, thus, denied the claim; it could have treated the claim as otherwise proper but untimely, and thus denied the claim on that basis; or it could have denied the claim on any other ground that it deemed appropriate (such as fees in excess of the No-Fault rates). Or, instead, it could simply have accepted the claim for what it obviously was -- a claim for reimbursement of medical bills paid by Aetna in lieu of Hanover’s duty to pay them. -7- What it could not do was simply ignore the submissions and fail to object to, reject, or deny them -- yet that is precisely what it did -- at its peril. While we acknowledge that the documents in question indicated on their face that “This is not a bill,” that statement must be placed in proper context. Herrera could, and did, submit only the documents she was provided by the health care providers, which were the Health Insurance Claim Forms. Those forms indicated that, as to Herrera, they were not bills because she was not being asked to pay them. As to Hanover, however, they were sufficient, in the context of a claim for reimbursement, to constitute bills/statements of services/requests for payment, or the equivalent, containing all of the pertinent information pertaining to dates of service, procedures and the costs thereof. Any doubt as to this was certainly eliminated by counsel’s accompanying letters clearly identifying the documents as “bills” for payment or denial, notwithstanding the notation thereon. Hanover’s collateral estoppel argument (Brief, at pp. 28-29) with regard to the “bills” issue is improperly raised for the first time on this appeal, and should, therefore, be disregarded. See Scheemaker v. State of New York, 70 NY2d 985 (1988). “A ground not stated in a motion before the trial court cannot be first urged on appeal . . . .” Nelson v. Times Square Stores Corp., 110 AD2d 691 (2d Dept. 1985); see also Lichtman v. Grossbard , 73 NY2d 792 (1988). -8- Thus, Hanover cannot escape its obligation to timely deny or disclaim. As the Second Department aptly observed in Viviane Etienne Med. Care, P.C. v.Country- Wide Ins. Co., 114 AD3d 33 (2d Dept. 2013), “An insurer that fails to pay or deny a claim within the 30 days following its receipt of the proof of claim is subject to substantial consequences. Fair Price Med. Supply Corp. v. Travelers Indem. Co. 10 NY3d at 563 [internal quotation marks omitted]. That insurer is generally precluded from asserting a defense against payment of the claim (Id. [internal quotation marks omitted]).” Hanover’s failure to issue a denial of Aetna’s claim precluded it from relying, inter alia, upon the defense of lack of standing. Contrary to Hanover’s contention (at p. 13 of its Brief) that this defense is non-waivable, in A.M. Medical Services, P.C., v. Progressive Cas. Ins. Co., 101 AD2d 53 (2d Dept. 2012), the court, citing and relying upon the decision of this Court in Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 (2007), held that a lack of standing defense is precluded if it is not timely asserted in a denial of claim. As the Court specifically held, after noting this Court’s admonition in Hospital for Joint Diseases, supra, that to hold otherwise would “frustrate[ ] a core objective of the No-Fault regime,” the defense of standing “is not exempt from the preclusion rule, which rule vitiates a -9- denial of coverage where the insurer fails, within the statutory time limit, to issue a denial of claim on the ground on which it purports to rely.” Hanover has failed to repeat and/or maintain its argument below that Aetna lacked standing because it had not sustained an “injury in fact.” Presumably, this is in recognition of the fact, pointed out at pp. 19-20 of Aetna’s Brief herein, that Aetna’s payment of a substantial sum of money to or on behalf of its insured that Hanover was primarily obligated to pay instead of it, clearly constituted the requisite “injury in fact.” In addition to the foregoing, as previously argued by Aetna, its standing in this action was derived, in part, from its status as an assignee of Luz Herrera. Notably, Hanover appears to have dropped the objection to the assignment [171] that it raised and relied upon below -- i.e., that it was “in improper form and undated” [179]. Presumably, this is in recognition of the validity of Aetna’s previously set forth argument to the effect that the assignment in question [171] was, in fact, in appropriate form and was not required to be dated (see Aetna’s initial Brief, at p. 19). In any event, as Aetna has repeatedly argued in this case, Aetna was and is not required to rely upon the validity of a legal assignment to validate its cause of action against Hanover. It is and remains Aetna’s contention that by virtue of paying on behalf of Aetna and Hanover’s mutual insured the amount that Hanover was primarily -10- obligated to pay, Aetna became subrogated to the insurer’s rights against Hanover. It is simply untrue that Herrera had nothing to assign and nothing to subrogate. Insofar as Aetna has asserted a lien to recover back from her the amount(s) of payments it made on her behalf, she has suffered and will suffer a loss if the benefits more properly payable by the No-Fault insurer (Hanover) are not obtained. There is no issue of double recovery herein; there is only an issue of the proper responsible party making payments to the extent they are legally obligated to do so. It is once again notable that Hanover, in its Brief, simply ignores and does not seek to distinguish or refute, the numerous cases cited by Aetna (at pp. 20, 22 of its Brief) to support its contention that under the facts and circumstances of this case, a valid and appropriate subrogation claim exists in Aetna’s favor against Hanover, and that such a claim is fully consistent with the general concepts of subrogation. See e.g., Pierce v. City of New York, 253 AD2d 545 (2d Dept. 1998) (insurer paying a loss is subrogated to insured’s right of action against any other person responsible for the loss); see also, Allstate Ins. Co. v Stein, 1 NY3d 416, 422 (2004); 3105 Grand Corp. v. City of New York, 288 NY 178, 182 (1942) (subrogation is a favored remedy, to be extended, not restricted, by the courts). And see, Hartford Acc. & Indem. Co. v. CNA Ins. Cos., 99 AD2d 310 (1st Dept. 1984); Eagle Ins. Co. v. ELRAC, Inc., 291 AD2d -11- 272 (1st Dept. 2002); Fidelity General Ins. Co. v. Aetna Ins. Co., 27 AD2d 932 (2d Dept. 1967); 71 N.Y. Jur. 2d §2360. Nor, indeed, significantly, has Hanover addressed at all Aetna’s contention (set forth at p. 23 of its initial Brief) that “Aetna’s cause of action also can be sustained on the basis of yet another theory, i.e., common law indemnity -- the notion, based upon simple fairness, that unjust enrichment is to be avoided by recognizing that a person who, in whole or in part, has discharged a duty that is owed by him or her but that as between himself or herself and another should have been discharged by the other. See Westbank Contracting, Inc. v. Rondout Valley Cent. School Dist. 46 AD2d 1187 (3d Dept. 2007). It again bears emphasis that, as noted at p. 23 of Aetna’s initial Brief, “Hanover, in its attorney’s Affirmation in Opposition to Aetna’s motion and in support of its cross-motion [174-188) did not deny that it was responsible for the payment of the bills submitted to and paid by Aetna had they been properly and timely submitted to it.” While the Insurance Department Regulations (11 NYCRR §65-3.11) allow the insured to assign his or her right to proceed directly against the No-Fault insurer to the health care provider (and not the insurer), nothing therein suggests that such right lies -12- exclusively with the health care provider and may not be created in another, historically legally recognized, manner, such as subrogation or indemnification. Hanover’s disagreement with this contention is based solely upon the unpublished decision of the nisi prius court (Deborah A. Kaplan, J.), in Health Insurance Plan of Greater New York v. Allstate Ins. Co., 2007 N.Y. Slip Op. 33925(U), 2007 WL 4367045 (Sup. Ct. N.Y. Co. 2007). Aetna respectfully submits (as it did below) that the suggestion to the contrary in Health Insurance Plan of Greater N.Y., supra, is just wrong. As conclusively demonstrated in Point I of Aetna’s main Brief, the ratio decidendi of that case, i.e., that the No-Fault Regulations allow assignments to be made only to the health care provider, is based upon an erroneous and overly broad reading of the Second Department’s decision in A.M. Medical Services, PC v. Progressive Cas. Ins. Co., supra, which held, inter alia, that “11 NYCRR 65.3.11(a) does not authorize direct payment to a medical provider which submits a bill identifying the treating provider as an independent contractor.” As the court there explained, the “important” reason for its decision, based upon an informal opinion of the Insurance Department’s General Counsel, was that to allow such direct billing “may facilitate fraud.” No such concern is implicated here, however, where Aetna is seeking to recover (only) that which it paid, but which Hanover should have paid on a primary basis. -13- At pages 21-24 of its Brief, Hanover raises additional arguments in opposition to Aetna’s subrogation/indemnity claim, which were not raised below and are improperly raised for the first time on this appeal. Those arguments should be disregarded by this Court. See Scheemaker v. State of New York, supra In any event, those arguments are ill-founded and without merit. Hanover’s argument concerning Aetna’s supposed alternative recourse to recoup the payments it made “directly from the medical providers,” who can/will then bill the No-Fault insurer, which “can then process and verify those claims in their ordinary course of business” ignores real-world realities and is illogical. Aside from the fact that the method contemplated by Hanover will result in an unnecessary and burdensome multiplicity of actions and proceedings, (Aetna against the providers, the providers against Hanover, and then when/if Hanover denies, the providers against Herrera), Aetna, which acted favorably, and in accordance with the No-Fault scheme, to its insured and her assignee medical providers, should not be subject to the vagaries of trying to recoup monies paid long ago, which may no longer be available for restitution. The doctor who received money in hand will certainly be reluctant to give up such money in contemplation of a less than definite attempt to recover the same amounts from Hanover. Yet, as Hanover itself implicitly recognizes, it would have available to it defenses to such a claim (including late notice and submission), which -14- could defeat such a claim -- leaving the medical bills unpaid and due and owing by the insured (Herrera). Although Hanover argues that in the context that Aetna seeks to impose herein, it is somehow unfairly prevented, upon receipt of the claim, from verifying, processing and/or defending the merits of the claim, in point of fact, Hanover has the same rights to investigate and deny the claim whenever it is first presented therewith. Indeed, for example, Hanover could have, it if acted properly and timely, denied Aetna’s claims herein on the grounds of late notice, lack of causal connection, or the like; unfortunately for Hanover, it failed to do so, with attendant consequences. Simply put, there is no prejudice to Hanover under the circumstances presented herein. Indeed, it matters not whether the claim is presented to it directly by Herrera, by the medical providers, or by Aetna. In all cases, the claims would be/are subject to the same defenses -- if raised by Hanover. Thus, contrary to Hanover’s bald assertion, its “hands” are not actually “tied” at all. Finally, with regard to “public policy,” Hanover’s contention that Aetna is seeking improperly to expand the scope of the No-Fault Regulations, especially 11 NYCRR §65-3.11, is without merit. As noted throughout Aetna’s Briefs in this case, both in this Court and the courts below, Aetna’s claim, based upon principles of subrogation and indemnification, is separate and independent from those Regulations. -15- Nor for the reasons previously explained, is Aetna seeking to create a right otherwise unknown in law or equity; it is simply attempting to pursue and enforce its right to reimbursement from the party properly responsible for the payment it made -- as have other similarly situated parties done for decades. Notwithstanding Hanover’s contentions to the contrary, the Decision/Order appealed from, rather than Aetna’s position herein, has detrimental implications for the No-Fault system and the guiding principles and goals supporting it. The Appellate Division’s Decision/Order effectively allows a No-Fault insurer to escape liability simply because the insured’s private health insurer paid the health care provider’s bills for treatment and thereby enabled the critically injured individual to continue to receive beneficial treatment for his or her injuries. That Decision/Order, taken to its logical conclusion, would also preclude recovery by all health insurers, including Medicare, Medicaid, ERISA self-funded plans and the like, which have, under varying circumstances, paid bills submitted by a health care provider or hospital unaware, perhaps, that they should have submitted to the No-Fault carrier. This is a fairly common scenario. In numerous situations where the No-Fault carrier initially denies the claim, the insured proceeds to submit the claims to the health insurer, which, acting in good faith and for the benefit and interests of its insured, makes the payment. As a result of the Decision/Order in this case, such providers of health insurance -16- benefits, alerted to the fact that they will now be unable to obtain reimbursement from the No-Fault carrier, which they believe should have paid the claim(s), will refuse to make such payments in the first instance. The health care providers, no longer able to assure themselves of payment, will then likely refuse to treat the patient, with obvious detrimental effects upon the patient. As Hanover, itself, has stated in its Brief (at p.3), “The purpose of New York’s No-Fault scheme was ‘to provide prompt resolution of injury claims, limit cost to consumers and alleviate unnecessary burdens on the courts.” Byrne v. Ouster Trucking, Inc., 386 F.Supp. 2d 386, 391 (S.D.N.Y. 2005).” None of those purposes is actually served by the Decision/Order in this case, and, indeed, the opposite result will more likely obtain going forward. As previously stated, contrary to Hanover’s assertion, it will not in any way be stripped of any defenses when it is actually presented with the claim -- as long as it timely and properly asserts them in a denial -- which it failed to do herein. The result of the Decision/Order in this case completely emasculates the equitable doctrine of subrogation, which “is based upon principles of equity and natural justice” (Allstate Ins. Co. v. Stein, supra), and which is intended to prevent unjust enrichment (Teichman v. Community Hosp. of Western Suffolk, 87 NY2d 514 (1996); Winkelmann v. Excelsior Ins. Co. 85 NY2d 577 [1995]). -17- A reversal of the Appellate Division’s erroneous Order, allowing recovery by Aetna or similarly situated health insurers under the facts and circumstances presented herein, would also be consistent with the principles of indemnity. Indemnity “may be based upon an express contract, but more commonly the indemnity obligation is implied . . . based upon the law’s notion of what is fair and proper as between the parties” (Mas v. Two Bridges Assoc, 75 NY2d 680, 690 [1990]). CONCLUSION For the reasons above set forth and in Aetna's main Brief, the Order appealed from should be reversed and Plaintiff's cross-motion for summary judgment on the issue of liability should be granted, with costs. Dated: Mineola, New York May 8, 2015 Respectfully submitted SHAYNE,DACHS, SAUER & DACHS, LLP BY:~NATHANAi)ACHS Attorneys for Plaintiff-Appellant 114 Old Country Road, Suite 410 Mineola, New York 11501 (516) 747-1100 j dachs@shaynedachs.com Appellate Counsel to: HARRY 1. KATZ, P.C. 61-25 Utopia Parkway Fresh Meadows, NY 11365 (718) 463-3700 harrykatz@hikpc.com -18-