Proof insufficient to comply with 65-3.5(b), 65-3.6(b)September 28, 2016

Liberty Mut. Insurance Co. v K.O. Med., P.C., 2016 NY Slip Op 06166 (1st Dept. 2016)

Violation of 3.5(b); 3.6(b)

(1)  Plaintiffs seek, inter alia, a declaration that defendant is not entitled to no-fault insurance benefits because it failed to appear for examinations under oath (EUOs). However, plaintiffs failed to demonstrate that the EUOs were properly noticed (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Counsel’s affirmation may be sufficient proof that the requests for EUO were mailed (see Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 130 AD3d 465 [1st Dept 2015]), but neither the affirmation nor anything else in the record establishes that the requests were mailed in accordance with the time frames set forth in the no-fault implementing regulations. Under the circumstances, the timeliness of plaintiffs’ claim denials is immaterial (see Interboro Ins. Co., 112 AD3d 483).

In this case, the insurance carrier sought to EUO the provider regarding  various bills that were received from numerous Assignors  If you read the papers, there is no mention of when the billing was received.  There was proof of mailing of the EUO letters and uncertain bust statements.  The court in light of the recent holdings correctly found that there was no evidence that the EUO’s were timely scheduled relative to the receipt of the bills

Failure to prove the no-show

(2) “Plaintiffs also failed to establish prima facie defendant’s failure to appear for the EUOs. The transcripts submitted to show defendant’s failure to appear on certain dates were uncertified and unsworn (see Rue v Stokes, 191 AD2d 245, 246-247 [1st Dept 1993]), and no evidence was submitted with respect to the other dates.”

This struck me as odd since the proofs in this case were neither better nor worse than the proofs in Allstate v. Pierre.  The carrier should have put a business record foundation paragraph for the EUO bust statements in the affidavit.  Of course, Pierre would have been decided differently under the current standard of law.

This could be chronicled under the headline: the perils of DJs when people answer.

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