OGC Opinion No. 08-06-01

The Office of General Counsel issued the following opinion on June 2, 2008, representing the position of the New York State Insurance Department.

RE: NF-2 Submission Timeframe

Question Presented:

May a No-Fault insurer deny a claim on the basis that an “Application for motor vehicle no-fault benefits” (NYS form NF-2) has not been submitted by a claimant?

Conclusion:

No. Section 65-1.1 of N.Y. Comp. Codes R. & Regs. (“NYCRR”) Tit. 11, Part 65 (Regulation 68-A) requires the submission of written proof of claim of a motor vehicle accident to an insurer within 30 days of the accident. Although timely submission of an NF-2 satisfies the written notice requirement, the notice need not be provided by way of a prescribed NF-2 form. See 11 NYCRR § 65-3.3(d). 11 NYCRR § 65-3.3(e) permits an insurer to issue a denial for failure to provide timely written notice of claim within 30 days of the accident.

Facts:

It is reported that XYZ Insurance Company denied the inquirer’s client’s No-Fault benefits on the basis that the NF-2 was submitted more than 45 days after the accident and therefore constituted late proof of claim. It is further reported that the insurer was provided with written notice, other than the NF-2, which was sufficient to meet the 30 day written notice of claim provision. The inquirer asks whether the insurer’s denial was lawful under the circumstances.

Analysis:

11 NYCRR § 65-1.1 is relevant to the inquirer’s query. That regulatory provision reads in pertinent part as follows:

Therefore, a claimant must provide written notice to an insurer within 30 days of the accident unless the claimant submits written proof of clear and reasonable justification for failure to comply with the 30 day rule.

11 NYCRR § 65-3.3(d) allows for satisfaction of the written notice requirement through the insurer’s receipt of an NF-2 or completed hospital facility form (NYS form NF-5).¹ Alternatively, 11 NYCRR § 65-3.3(c) contemplates that a “Department of Motor Vehicles Accident Report 104” (“MV-104), or other accident report indicating injuries to an injured person may satisfy the written notice requirement.

Pursuant to 11 NYCRR § 65-3.4(b), within five business days after notice (whether written or otherwise) is received by an insurer, the insurer shall forward the NF-2 to the claimant. If the insurer does not receive a response within 30 days of the original mailing, the insurer shall mail a second NF-2 within ten calendar days pursuant to 11 NYCRR §65-3.6(a).

11 NYCRR § 65-3.3(e) permits an insurer to issue a denial for failure to provide timely written notice of claim within 30 days of the accident. However, neither the Insurance Law nor the regulations promulgated thereunder authorize an insurer to issue a denial on the ground that the claimant failed to return a completed NF-2 to the insurer when the claimant has otherwise submitted timely written notice in accordance with 11 NYCRR § 65-1.1.²

The notice of claim provision is different from the proof of claim provision in 11 NYCRR § 65-1.1, which provides that “the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. The eligible injured person or that person’s representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the Company as soon as reasonably practicable, but, in no event, later than 90 days after the work loss in incurred or other necessary expenses are rendered.”

Under the facts presented here, the insurer had no lawful basis to apply the 45-day proof of claim submission limit to the written notice provisions under 11 NYCRR § 65-1.1.

For further information you may contact Associate Counsel Alexander Tisch at the New York City Office.

¹ Pursuant to 11 NYCRR § 65-3.5(f), an insurer “may require the submission of the prescribed application for motor vehicle no-fault benefits, the prescribed verification of treatment by attending physician or other provider of health service, and the prescribed hospital facility form.”

² Pursuant to 11 NYCRR § 65-3.5(b), an insurer may not prescribe or establish a time frame for receipt of additional verification requested after receipt of a prescribed verification form such as the NF-2. See Office of General Counsel (“O.G.C.”) Opinion No. 06-08-14 (August 22, 2006).