Not attending an EUO at your own peril

Accelerated Med. Supply, Inc. v Ameriprise Ins. Co., 2020 NY Slip Op 50741(U)(App. Term 2d Dept. 2020)

In an order dated April 12, 2017, the District Court denied defendant’s motion, finding that the letters scheduling the EUOs of plaintiff were defective because they did not specify the claims to which the letters pertained, and the court granted plaintiff’s cross motion”.

Reversed.

I mean in the scheme of things, if you decide not to attend an EUO, you really do so at your own peril.

A valid NF-10

Aries Chiropractic, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 52064(U)(App. Term 1st Dept. 2019)

I bolded the Unitrin case. The First Department has been all over the place lately. For anyone to predict how that Court will rule on anything in the no-fault universe would be engaging in an unwise prediction.

“Contrary to plaintiff’s contention, defendant’s denial of claim form did not need to set forth the dates of the EUOs for which plaintiff had failed to appear. “Had it been the intent of the Department of [Financial Services] to require the carrier to set forth [the dates of the scheduled EUOs] in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided” (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; cf. Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 [1st Dept 2018]).

Keep beating a dead horse… It is not coming back to life

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 51684(U)(App. Term 2d Dept. 2019)

“Furthermore, as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [*2][provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]….”

If you feel the Court is wrong and you know what the outcome will be, you are best to file an action is a different Department or in a federal court and hope for a different outcome. This appears to be a foolish use of resources in everyone’s part.

EUO no-show reversed after trial

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51631(U)(App. Term 2d Dept. 2019)

“At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).”

Well, the representative was credible.

EUO no show?

Ultimate Health Prods., Inc. v Travelers Ins. Co., 2019 NY Slip Op 51620(U)(App. Term 2d Dept. 2019)

EUO no-show case: dismissal affirmed

“In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). Upon a review of the testimony and evidence which was admitted at trial without objection, we find no basis to disturb the Civil Court’s finding. “

Well this is not surprising.

No objective basis necessary

Actual Chiropractic, P.C. v State Farm Ins., 2019 NY Slip Op 51552(U)(App. Term 2d Dept 2019)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” 

Well heck, where have we seen this before? Appealing the same issue and expecting different results? Definition of insanity?

EUO bust statement

Right Aid Med. Supply Corp. v Ameriprise Auto & Home, 2019 NY Slip Op 51270(U)(App. Term 2d Dept. 2019)

They are the best evidence of the no-show. New York considers them business records as well as being an affidavit. Yet, the practitioner who fails to properly utter certain things on the record will doom the no-show case.

“Contrary to the finding of the Civil Court, the transcript of the second EUO does not state that [*2]the EUO, which was scheduled to commence at 10 a.m., “was commenced” at 10:51 a.m. Rather it was at 10:51 a.m. that the attorney began putting his statement on the record, at which point he stated that he had been waiting approximately an hour for plaintiff to appear. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. “

EUO demands untimely

Zen Acupuncture, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 51262(U)(App. Term 2d Dept. 2019)

“Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims “

What was the purpose of this appeal? Was defeating a summary judgment motion where Plaintiff, at the end of the day, will prevail upon a trial a proper use of resources? If the carrier had to pay Plaintiff hourly attorney fees, would this appeal have transpired?

Asking for a friend.

Certified Mail and Regular Mail

Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co., 2019 NY Slip Op 51148(U)(App. Term 2d Dept. 2019)

(1) “While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient”

(2) “Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing “

An objective standard is not necessary

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51158(U)(App. Term 2d Dept. 2019)

“This court has held on multiple occasions that since the Appellate Division, Second Department, stated that an insurer need only establish as a matter of law that it twice duly demanded an EUO from the provider that the provider twice failed to appear, and that the insurer issued a timely denial of the claims, an insurer does not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law”