EUO no-show – correct statement of law

Excel Prods., Inc. v Farmington Cas. Co., 2021 NY Slip Op 50441(U)(App. Term 2d Dept. 2021)

I was just discussing Dowd. Then you have this: “Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s 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…”

Put aside the need to timely deny – I agree with Unitrin on that point. This is a proper statement of law. How can you cooperate with a bill that is overdue?

The EUO is not admissible?

Masigla v MVAIC, 2020 NY Slip Op 51612(U)(App. Term 2d Dept. 2021)

“The Court finds that defendant failed to establish that the assignor’s EUO transcript should be treated as an exception to the hearsay rule as a statement against interest. In a similar matter, JSI Expert Serv. v. Liberty Mut. Ins. Co., 7 Misc 3d 1000 (A) [NY Civ. Ct. March 23, 2005], the defendant attempted to use an EUO transcript as evidence at trial claiming, that the [*4]EUO transcript was a hearsay exception because it was an admission against interest. In JSI Expert Serv., the Court found that the “New York doctrine,” which states “In New York declarations of a vendor or assignor of a chattel or chose in action, whether made before or after the transfer, are inadmissible to affect the claim or title of a subsequent transferee for value” was applicable and therefore, the hearsay exception for admission against interest was inapplicable. Id. quoting Richardson on Evidence, Farrell 11th ed., §§ 8-239 and 8-241.

Similarly, in this matter plaintiff argues that the “New York Doctrine” is applicable and therefore, the EUO is not admissible. This is the same argument adopted by the Court in JSI Expert Serv. In 2006, this issue was again visited and it was held that, “the declarations of an assignor, whether made before or after the assignment, are inadmissible as against the assignee.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006]. The Court finds the Court’s decisions in JSI Expert Serv. and CPT Med. Serv, to be persuasive, and that the “New York doctrine” in applicable in this instance therefore, the EUO testimony is hearsay and not admissible.”

EUO’s, if properly certified, are admissions. So are statements and videotapes. With new judges come the resurgence of some weird old law holdings. Global Liberty Ins. Co. v Laruenceau, 187 A.D.3d 570, 571 (1st Dept. 2020). History is prologue

It did not have to be mailed to the attorney

Pavlova v Nationwide Ins., 2021 NY Slip Op 50213(U)(App. Term 2d Dept. 2021)

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Contrary to the determination of the Civil Court, the affirmations of defendant’s counsel, as well as the transcripts of the EUOs, were sufficient to establish that plaintiff’s assignor had failed to appear for the EUOs. It is irrelevant whether plaintiff’s assignor was represented by counsel, as defendant was only required to mail the EUO scheduling letters to plaintiff’s assignor (see 11 NYCRR 65-3.5 [e]; 3.6 [b]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.”

We know if the letter is mailed to attorney and the attorney has knowledge that the Assignor’s address is wrong because it is evident on the mailed letter to the attorney, then it counts as service upon the Assignor. According to this case, we can skip the attorney all together, which is not good precedent.

Prescribed forms are not part of the no show

BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co., 2021 NY Slip Op 50083(U)(App. Term 2d Dept. 2020)

“Plaintiff’s contention that defendant failed to make a prima facie showing of its entitlement to summary judgment because defendant did not show that it had timely mailed “prescribed forms” upon learning of the accident (see 11 NYCRR 65-3.4) lacks merit, as such a showing is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).”

Prescribed forms are not part of the no-show

Objective standards

21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364(U)(App. Term 2d Dept. 2020)

“Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.”

The split on objective reasons.

The second EUO no-show is operative

Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226(U)(App. Term 2d Dept. 2020)

“Where, as here, no other verification request is outstanding (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there [*2]was a failure to comply with a condition precedent to coverage”.

This one is interesting because there were three (3) no shows. Assuming the second EUO was a reschedule, we are left to assume the third EUO would have been the “second” no-show. It would appear the movant in this weird situation would have to proffer evidence that the second EUO was somehow excused. Very interestging.

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.