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EUO tolling and reasonableness issuesDecember 8, 2013

 Eagle Surgical Supply, Inc. v Allstate Indem. Co., 2013 NY Slip Op 52012(U)(App. Term 2d Dept. 2013)

(1) “Plaintiff’s main argument on appeal is that defendant was not entitled to summary judgment because defendant’s first EUO scheduling letter was untimely, resulting in a failure to toll its time to pay or deny the claim and rendering the denial of claim form untimely. Although [*2]this argument is raised for the first time on appeal, it may be considered by this court “since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture” (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]).”

I am not sure I agree, but it is fair enough.

(2) “A review of the file reveals that defendant received the subject claim form on February 17, 2009 and mailed its first EUO scheduling letter on March 23, 2009, 24 business days later. Requests for additional verification are untimely if not made within 15 business days of the insurer’s receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). However, since the first EUO request was nine days late, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (j), defendant’s time to pay or deny the claim was reduced from 30 calendar days to 21 calendar days. Defendant mailed its denial of claim form 20 days after plaintiff failed to show up for the final scheduled EUO. Accordingly, plaintiff’s argument is without merit.”

Assuming this Court refuses to follow Unitrin, Lucas, Leon, Marte-Rosario and Solorzano, the delay is vitiated if it is mailed more than 30-days after the bill is received, notwithstanding the day-for-day reduction in the time to pay or deny for delays sent more than 15 business days receipt of the bill.  See, Nyack v. Gmac.  So, Defendant should have been precluded from raising its defense and the order should have been reversed on the law.

(2) “To the extent plaintiff seeks to argue on appeal that defendant’s EUO request was unwieldy and unduly burdensome, plaintiff does not claim to have responded in any way to the EUO request, and its objections will not now be heard”

This is a reiteration of the law.

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