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Failure to cooperateOctober 28, 2017

Country-Wide Ins. Co. v Gotham Med., P.C., 2017 NY Slip Op 07538 (1st Dept. 2017)

(1) “The refusal by defendant’s principal, Dr. Alexandre Scheer, to answer questions at an examination under oath (EUO) about his compliance with a consent agreement and order he had entered into with the Office of Professional Medical Conduct (OPMC) constituted a failure to comply with the request for an EUO, a condition precedent to coverage under the insurance policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]).”

This is the second time the Appellate Division opined on the issue of not answering questions at the EUO.  The intentional refusal to comply “voided” coverage.

(2) “Defendant also argues that plaintiffs had no independent right to determine whether Scheer was in compliance with the consent agreement and order and that any determination by them of noncompliance would not render him “unlicensed” to practice medicine. This argument is unavailing. The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16[a][12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).”

The facts on this one were highly advantageous to the insurance carrier.  You had a wounded warrior, tried to put the dagger into him and he refused to allow that to occur.

(3) “Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211[e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses.”

I think this is the most important point to take from this case.  It is the danger of being forced to allow these matters to proceed to arbitration.

4 Responses

  1. Bruno Tucker says:

    Normally it is the carriers who use cases with horrible facts to appeal (Fair Price anyone?), Guess the plaintiff’s are catching the fever also.

    • jtlawadmin says:

      LMAO. Well, too many of the carriers’ attorneys only care about billables. How do I know? In my very limited EIP only no-fault Plaintiff practice (less than 20 cases in 7 years), I have seen behavior, papers and now an appeal that convince me that some firms only care about milking their clients. It is sad. When the results do not pan out, in-house becomes more desirable. But this was a horrible appeal. Had this doctor not had the license restrictions, the appeal might have made more sense in light of the seminal BG&S disaster, Allstate v. New Way Massage Therapy PC – single handedly the worst case for SIU counsel I have ever seen.

  2. Sun Tzu says:

    *see unitrin v. baysore for the most ill-chosen provider appeal ever. Two patients in same accident with virtually identical TMJ injuries and $7,500 bills. It resulted in just horrible law which places the First Department at war with all other departments and has encouraged insurers to utterly game the system. Hopefully next time II&P and its two partners will comprehend bad cases make bad law.

    • jtlawadmin says:

      Fourth Department appeared to follow Unitrin in Interboro v. Tahir. Ah, Some II&P hating on my blog. Terrific. In Billy’s defense, the law appeared to be on his side and he won his prior case at the App Div in A&S Medical v. Allstate. The odds of Unitrin being decided as it did was probably as good as winning the Pick 5. The late Judge Jones in the Court of Appeals then made an interesting statement in NY&P v. C-Wide, which gave Unitrin staying power. The history, application and development of Unitrin is almost like the person that converts on every one shot box car bet at craps. And truthfully, Unitrin as constrained by Longevity makes sense in so many ways, yet seems so antithetical to what we know, understand and somewhat love as no-fault law. *honesty

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