Appellate Term finally lays out the timing requirements in EUO and IME no-show cases

I would read these next few cases very carefully.  They give a road map of the timing issues that are dealt with in these types of cases.

Arco #1

ARCO Med. N.Y., P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382(U)(App. Term 2d Dept. 2011)

“Defendant requested the EUOs on February 13, 2007, within 15 days of receipt of the first two claim forms at issue in this case (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). When the doctors failed to appear for the EUOs on the scheduled February 28, 2007 date, defendant mailed a second request on March 7, 2007, rescheduling the EUO for March 21, 2007. While the Civil Court suggested, in the order appealed from, that the follow-up request was premature because it was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), we hold that, when the verification sought is an examination under oath or an independent medical examination, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination.”

“The issue presented is whether the initial EUO request acted to toll the time to pay or deny these subsequently received claims, or whether defendant was required to take additional action in order to create a toll. The No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon subsequent claims. Under the circumstances [*3]of this case, we find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs. Consequently, the April 11, 2007 denial of claim was timely as to these claims”

Arco #2:

“However, the record establishes that defendant’s time to pay or deny the remaining claims, seeking the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16, was tolled.

Defendant’s February 13, 2007 request, which scheduled the EUOs for February 28, 2007, was timely with respect to these remaining claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]), as was the March 7, 2007 follow-up request, which rescheduled the EUOs for March 21, 2007, after the doctors had failed to appear for the scheduled February 28, 2007 date.”

“[e]ach of these five remaining claims had been timely denied on April 11, 2007

A lot of cases that filled in many gaps came out today

I will post about most of these cases today and tomorrow.  Stay tuned.


Zaidman v Zaidman, 2011 NY Slip Op 09634 (2d Dept. 2011)

On defaults:

“An order granting a motion for leave to enter a default judgment is not a “nullity” merely because the movant has not complied with the requirements of CPLR 3215(f) regarding proof of the facts of the claim…Rather, a party moving to vacate a default and extending the time to answer pursuant to CPLR 5015(a)(1) must establish a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense.”

An ode’ to the IME no-show. By: Me

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 52343(U)(App. Term 1st Dept. 2011)

Check out the “c.f. Stephen Fogel”.  Does anyone know what the heck that means?  Is this the First Department’s analogue to the “But see” Untirin of the Second Department?  When I reflect on IME no-shows, you just have to wonder why the Courts have struggled with this issue.

First, there was Adams v. Allstate which seemed to imply that an IME no-show was an absolute defense.  Then, we had Millenum and Urban which held that an IME no-show raised a triable issue of fact as to medical necessity.  After this,the DOI said an IME no-show is an absolute defense to a no-fault matter.

Then came Fogel I, which was one of the sloppiest decisions I  have ever read.  This case made a distinction as to “pre-claim” and “post-claim” IME defaults.  The cases applying Fogel I were even sloppier than Fogel I.

In the meantime, the App. Term First Department in Inwood v. General Assurance said that Fogel I was ridiculous and applied the rule that stands in the App. Term Second Dept. today.

Some Supreme Court Justices weighed in and said, that they would apply the DOI letter, but you have to make a Thrasher showing.

Then came Fogel II, which set forth groundwork that a double IME no-show that was timely denied would result in a truncation of all no fault benefits.

After this, the case law evolved that added the personal knowledge of non-appearance prong to the IME no-show cases.  Precedent then started applying EUO no-show rules to IME no-shows.

Then, we have Westchester v.Lincoln which was a poorly written decision, simply because it is so bereft of any factual support.  Unitrin came to the scene and took dynamite and exploded the Chubb exception, destroyed wilfulness and applied the Florida rule on gun crimes to IME no-shows:  “10-20-life: Use a gun and your done”.  Here, we can say: “no-show, no go”.  I like the gun slogan better.

Of course, Mercury v. Encare was the attempt to patch up the explosion.  This was done at my expense, or perhaps my zealousness to right what I perceived was wrong.  By the way, wait for Apple Tree v. Interboro.  Good lord.

And we now have a growing cadre of Nassau Supreme Court DJ cases that say Westchester can temper Unitrin to the extent that a claim denial is issued within 30-days of the final IME or EUO no-show.  By the way, this is the approach I advocate.  I like compromises on these issues.

Now we have this case.  What a saga over an issue that is so conceptually simple.  Happy holidays everyone, and thank you for reading my attempt at juxtaposing law with a tad of irony and sardonic wit.

“In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).”

A timely filed summary judgment motion stays a trial

Mian v Praetorian Ins. Co., 2011 NY Slip Op 52345(U)(App. Term 1st Dept. 2011)

This just makes sense.  Heaven knows, in the world of Civil Court, this paradigm happens all the time.  It is nice to see reality tempered by logic.

“Contrary to Civil Court’s conclusion, defendant’s motion for summary judgment was timely made within 120 days after the filing of the notice of trial (see CPLR 3212[a]), and served to stay the trial of this action (cf. B. Man Yoon v Fordham Univ., 249 AD2d 176 [1998], lv dismissed 92 NY2d 946 [1998]).”

Objective evidence of a serious injury

Austin v Rent A Ctr. E., Inc., 2011 NY Slip Op 09434 (4th Dept. 2011)

Further, plaintiff submitted his medical records and the depositions of his primary care providers establishing that, prior to the accident, he had no back or neck complaints (see Perl v Meher, ___ NY2d ___, ___ [Nov. 22, 2011]). Plaintiff’s medical records also reflect the presence of spasms upon palpation of plaintiff’s thoracic spine, which constitutes objective evidence of injury (see Rissew v Smith, 89 AD3d 1383; Mancuso v Collins, 32 AD3d 1325, 1325-1326; Zeigler, 5 AD3d at 1081). In addition, plaintiff submitted reports from several medical providers that quantified his loss of range of cervical and thoracic motion (see Mancuso, 32 AD3d at 1326). Indeed, a functional capacity evaluation conducted in December 2007 quantified plaintiff’s range of motion restrictions and indicated that plaintiff was unable to perform bending and squatting activities without support and could lift only 10 pounds on a frequent basis or 15 pounds on an occasional basis.

1) Was this a workers comp ebt or one of a physician permitted under 3117?

2) Note that objective evidence now includes spasms and the results of an FCE.

To me, the tide is turning on soft tissue cases.

Leave it up to me to litigate a no-fault case that might as well not have been a no fault case

Great Wall Acupuncture, P.C. v Interboro Mut. Indem. Ins., 2011 NY Slip Op 52293(U)(App. Term 2d Dept. 2011)

It is interesting that the Court never reached the merits of the dispute.  I am glad the Court accepted this argument:

“It is uncontroverted that plaintiff signed a stipulation of discontinuance, with prejudice, which was filed in the Civil Court prior to plaintiff’s attempt to enter judgment on the second stipulation. Since the instant action was terminated with the filing of the binding stipulation of discontinuance (see CPLR 2104), the relief requested by plaintiff was no longer available by motion in this action but, rather, plaintiff was required to commence a plenary action (see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Matter of Serpico, 62 AD3d 887 [2009]; Zeer v Azulay, 50 AD3d 781, 785 [2008]).

Another material misrepresentation in the procurement case

New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 2011 NY Slip Op 52286(U)(App. Term 2d Dept. 2011)

“Upon our review of the record, we find that the affidavits and investigative reports annexed to defendant’s motion papers sufficiently established that the assignor, who was also the insured under the subject insurance policy, had misrepresented his state of residence.” (prong #1 of the material misrepresentation defense).

Furthermore, the evidence submitted by defendant established that this misrepresentation was material since defendant would not have issued the policy had it known that the assignor resided in the State of New York, as defendant was not licensed to insure vehicles in New York at the time of this loss, and would not have issued the subject policy to him. Thus, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006])(prong #2 of the defense).

In opposition, plaintiff, as assignee standing in the shoes of its assignor (see New York & Presbyt. [*2]Hosp. v Country Wide Ins. Co., NY3d , 2011 NY Slip Op 07149 [2011])”(The Court of Appeals’ hidden gem).

Resident verses domicile

Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 52303(U)(App. Term 2d Dept. 2011).

This looks like something I would see on a UM Article 75 appeal.  Domicile v. Residency.  Seems a little bit more interesting that the usual Dan Medical and now Westchester v. Nationwide appeals that flow through these Courts, like a less than fine bottle of wine.

“In addition, a review of the record indicates that defendant is not entitled to summary judgment dismissing the complaint, as defendant did not establish, as a matter of law, that the assignor was not an eligible injured person because she did not reside in the insured’s household on the date of the accident (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]; see generally Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) defines an eligible injured person as, among other things, a child who regularly resides in the insured’s household even if he or she is temporarily living elsewhere. Consequently, as the affidavit of defendant’s investigators alleged  that the assignor had, at some point, resided with her father, the insured, defendant’s cross motion was properly denied.”

My vote is for a dismissal with prejudice unless Plaintiff reimburses the carrier

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 2011 NY Slip Op 52300(U)(App. Term 2d Dept. 2011).

In what could be labelled as the objection that has great promise to be overturned on appeal, the Appellate Term reversed another trial order precluding the testimony of a substitute peer doctor.  You know my thoughts on what the Appellate Term should really do with this case.

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