Who Bears the Burden of Proving Verification Compliance at a No-Fault Trial?

Key Takeaways

• In Right Aid Med. Supply v State Farm, the only trial issue was whether the provider had supplied requested verification — and the Appellate Term confirmed that burden sat with the plaintiff provider, not the carrier.
• Plaintiff’s counsel rested without calling a witness, betting that the carrier first had to prove non-receipt. The bet failed and the complaint was dismissed.
• Under 11 NYCRR 65-3.5 and 65-3.8(a), a claim is not overdue — and no cause of action accrues — until outstanding verification is provided.
• The case is a trial-strategy warning: when the court frames the issue and assigns the burden, present your proof; do not stake the case on a burden-shifting argument alone.

Understanding Burden of Proof in Additional Verification Cases

In New York no-fault insurance litigation, disputes over additional verification requests frequently hinge on procedural requirements and burden of proof issues. These cases demonstrate how technical legal standards can determine the outcome of otherwise straightforward claims disputes. The additional verification process serves as a critical gatekeeping mechanism in no-fault insurance, allowing insurers to request additional documentation before paying claims.

When healthcare providers fail to properly establish their compliance with verification requests, courts will dismiss their claims regardless of the underlying merits. This principle reinforces the importance of maintaining detailed records and understanding procedural requirements in no-fault litigation.

The Decision

Jason Tenenbaum’s Analysis:

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51409(U)(App. Term 2d Dept. 2015)

“At a nonjury trial held on February 26, 2016, the Civil Court noted that the only issue to be determined was whether plaintiff had provided the requested verification, stated that the burden was on plaintiff, and directed plaintiff to call its first witness. Plaintiff did not call any witnesses, arguing that the burden was on defendant to first establish that it had not received the requested verification. With no testimony having been presented, the Civil Court found for defendant on the ground that plaintiff had failed to demonstrate that it had provided the requested verification. Plaintiff appeals from a judgment entered March 21, 2016, dismissing the complaint.”

This is at most the follow-up to the Travelers case of last week.

The Verification Framework

A short refresher explains why the burden allocation mattered so much. Under 11 NYCRR 65-3.5, once a carrier receives a claim it may demand “any additional verification required by the insurer to establish proof of claim.” Under 11 NYCRR 65-3.8(a), the carrier’s time to pay or deny does not begin to run until all requested verification is received. A claim that is not overdue is not actionable — the provider has no ripe cause of action.

The practical consequence: when a carrier defends on outstanding verification, the dispute is not about the merits of the underlying bills at all. It is about whether the verification loop was ever closed. If the requests went out (properly mailed, with the follow-up the regulation requires) and the responses never came back, the suit is premature.

That framework drives the burden at trial. The provider is the party asserting that its claim ripened — so when the court isolates “did plaintiff provide the verification?” as the sole issue, the provider must come forward with proof of mailing or delivery of its responses. Resting on the theory that the carrier must first prove a negative — non-receipt — inverts the structure of the regulation.

Why the Strategy Failed

Plaintiff’s trial counsel made a calculated choice: call no witnesses and argue that the defendant had to open the proof on non-receipt. There is surface appeal to the argument — carriers do bear burdens on their own defenses, and non-receipt disputes often turn on the carrier’s incoming-mail procedures.

But once the Civil Court announced the issue and placed the burden on plaintiff, the gamble had no safety net. With no testimony in the record, there was nothing for the appellate court to weigh. The Appellate Term affirmed the dismissal. Whatever the merits of the bills, the case ended on an empty record.

Why This Matters for Providers and Carriers

For medical providers and their counsel, the lesson is blunt: maintain and be ready to prove a verification-response file. That means a witness who can describe the office’s standard practice for mailing verification responses, plus the documents themselves. Even if you believe the burden framing is wrong, make your record — you can argue burden on appeal far more comfortably with proof in the transcript.

For carriers, the decision validates the verification defense as a complete trial answer. A carrier that can show duly mailed initial and follow-up verification requests, with no response, has placed the claim in permanent abeyance. The companion battleground — proof of mailing — is covered in depth in the firm’s materials on mailing and proof of service.

For everyone in the no-fault space, the case sits within a larger paradigm: verification is the carrier’s most durable procedural tool, and the appellate courts have continued to refine it — most recently in the 120-day rule and Chapa line of cases.

Practice Pointers

• Never rest without proof when the court assigns you the burden. Preserve the burden objection, then put on your witness anyway.
• Providers: respond to every verification request in writing, keep proof of mailing, and if you believe a request is improper, say so in writing — silence stops the clock indefinitely.
• Carriers: issue the follow-up request the regulation requires; a verification defense is only as strong as the second letter and the mailing proof behind both.
• Trial counsel on both sides: pin down the issue framing at the pre-trial conference. Right Aid shows the framing can decide the case.

Frequently Asked Questions

Who has the burden of proof on verification at a no-fault trial?

When the issue is whether requested verification was supplied, the provider-plaintiff bears the burden of showing it responded. The carrier’s claim-determination clock does not run — and the provider’s cause of action does not accrue — until the verification is provided.

What happens if a medical provider never answers a verification request?

The claim remains in abeyance. Under 11 NYCRR 65-3.8(a), the carrier’s obligation to pay or deny never matures, so a lawsuit on the claim is premature and subject to dismissal.

Can a provider argue the carrier never really mailed the verification requests?

Yes — proof of mailing is a frequent battleground, and a carrier must establish its requests (including the follow-up) were properly mailed under its standard office practice. But that challenge requires a record; it is not a substitute for the provider’s own proof that it responded.

Related Resources

• Verification, the 120-day rule, and Chapa — the firm’s cluster hub on verification practice
• CPLR 3212(g) struck
• Additional verification issue
• How did you know that you never received the requested verification?
• Browse the firm’s Legal Encyclopedia for more no-fault procedure topics
• No-Fault Defense practice page