Master Arbitrator Dachs discusses IDS v. StracarMay 28, 2014
Putting aside certain disdain towards the Second Department punting the “absolute coverage” component of Unitrin and ATIC v. Lucas, the IDS case said that when carrier wants an EUO of whoemever, no is not a suitable answer. The case also spoke about “partial performance”, which probably means showing up to the EUO. I am not sure what needs to be answered to constitute partial performance, although answering relevant questions would seem to fit the bill.
The question that of course lingers, and is quite manifest is what happens when the provider says I will not show up because you did not do ………. or do not have ……….. and the carrier either says we stand by our demand or ignores the provider. Master Dachs said the following in Blank v. Geico, 412013060819
“Indeed, “It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to Indemnify, constitutes a material breach of the policy, precluding recovery of the policy proceeds.” IDS Property Cas. Ins. Co. v. Stracar Medical Services, P.C., 116 AD3d 1005 (2d Dept. 2014) (internal quotation marks and citations omitted). Insofar as applicant’s complaint that the Lower Arbitrator “Ignored the Insurance carrier’s failure to respond to the applicant’s … objection letters” is concerned, assuming, arguendo, that responses were required, the record before me demonstrates that adequate responses were given.”
Note: “assuming arguendo”. Read this how you want, but I think assuming arguendo leads to a certain result.