No-show based upheld despite objection – with a caveat

First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593(U)(App. Term 2d Dept. 2017)

(1) “At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]).”

(2)  “In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.”

Clearly, we have a situation where the EUO of the EIP occurred and then the facility was then brought in for an EUO.  Objection letters were generated but not mailed.  Would it have mattered if the letters were nailed?  I see the words “in any event” and that could mean even if it was mailed, it would not be sufficient.  I am unsure, however, if that is the case.

There has been a dearth of cases on this issue viz. can an EUO be validly blocked when an objection letter as to the EUO is mailed to the carrier.  Again, we are waiting for the case where the objections letters are mailed and the Court reaches this precise issue.  Stay tuned.

Objective reasons?

Parisien v Metlife Auto & Home, 2017 NY Slip Op 50208(U)(App. Term 2d Dept, 2017)

“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, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Barakat Med. Care, P.C. v Nationwide Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51677[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

Compare this to the more common scenario where the plaintiff objects or requests a reason for the EUO.  c.f American Transit Ins. Co. v. Jaga Med. Servics, P.C.

Driver EUO

City Care Acupuncture, P.C. v Hereford Ins. Co., 2017 NY Slip Op 50037(U)(App. Term 2d Dept. 2016)

“During his examination under oath, the driver testified that he had rented the insured vehicle, which he drove as a livery vehicle, that the assignors had been passengers in his vehicle on February 13, 2013, and that the vehicle had not been involved in an accident on that date. Also, after the passengers in his vehicle called the police and reported that an accident had taken place, the driver told the responding police officer that there had been no accident.”

When I see the driver EUO or driver sworn statement in commercial livery cases, my next question is: where is the EIP EUO?  You know it is somewhere…  Just an observation.

Fogel again-

National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028(U) (App. Term 2d Dept. 2017)

“Contrary to plaintiff’s assertion, there is no basis for a distinction between defendant’s contractual remedies when “the failure to appear for [EUOs] occurs before the submission of the claim form or after its submission” (id. at 722).”

This line of reasoning has its force from the Manoo debacle at the First Department.

Another EUO bonanza

J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 26424 (App. Term 2d Dept. 2016)

(1)  “Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration”

(2) “Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters”

(3)  “Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO.”

When do the malpractice insurance carriers get called?  This is not going to be a “U” or “A” citation, so names will appear on this order in the report.  Yikes.

A feckless appeal by Ameriprise

A.C. Med., P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51787(U) (App. Term 2d Dept. 2016)

“Pursuant to the no-fault regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). Since defendant received the claim in the amount of $403.58 on August 28, 2012 and mailed an EUO scheduling letter to plaintiff on September 26, 2012, defendant’s time to pay or deny that claim was reduced by the number of days that the EUO request was late (see 11 NYCRR 65-3.8 [l]). However, defendant did not timely deny that claim after plaintiff had failed to appear for the second scheduled EUO (see 11 NYCRR 65-3.8 [a] [1]). With respect to the remaining claims, because defendant did not mail its first EUO scheduling letter to plaintiff within 30 calendar days of receiving those claims, the scheduling letter was rendered a nullity by its untimeliness”

I almost ask myself – are you sometimes better off not showing up for the EUO?

Timely EUO letters

Fontanella v Allstate Ins. Co., 2016 NY Slip Op 51679(U)(App. Term 2d Dept. 2016)

“As to the remaining claims, defendant failed to establish that the denials were timely. The EUO scheduling letters were not sent within 30 days of the insurer’s receipt of each of the claims (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op [*2]50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and we note that delay letters, which request no verification, do not toll the 30-day statutory time period within which a claim must be paid or denied”

Beating a dead horse.  I think this may be the first time I saw a direction that said “EUO scheduling letters needed to be sent within 30-days of receipt of the claim.” This has been implied in light of 65-3.5(b); 3.5(l); 3.8 and Ins Law 5106 and the Neptune-Ameriprise case.

I actually get shutters when I see “Ameriprise” or “Allstate” listed in a no-fault appeal, because I know my life has just gotten that much more difficult than the night before.

EUO no show is unconditional

Integrative Pain Medicine, P.C. v Allstate Ins. Co., 2016 NY Slip Op 51525(U)

“Appearance at an EUO is a condition precedent to coverage (see 11 NYCRR 65—1.1; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Upon finding that defendant demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, the Civil Court should not have given plaintiff’s assignor an opportunity to cure its failure to act during claims processing (see IDS Prop. Cas. Ins. Co. v Stracar Med. Services, P.C., 116 AD3d 1005 [2014]). Under the circumstances, the court should have granted defendant’s cross motion for summary judgment unconditionally.”

It is interesting that the Civil Court found that the EIP should have another opportunity to attend EUO, which is what happened in IDS.  The Appellate Term, similar to the Appellate Division in IDS, said no more chances and dismissed the complaint.  Interesting.

EUO loss (again)

TAM Med. Supply Corp. v Ameriprise Auto & Home, 2016 NY Slip Op 51407(U)(App. Term 2d Dept. 2016)

“Plaintiff correctly argues that, because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the examinations under oath in question, defendant’s cross motion for summary judgment should have been denied”

Oleg, is this the famous “would’ve, could’ve, should’ve but didn’t” affidavit that always loses?

The dates of the EUO’s do not need to be placed in the letters

Actual Chiropractic, P.C. v Mercury Cas. Co., 2016 NY Slip Op 51435(U)(App. Term 2d Dept. 2016)

“The proof submitted by defendant established that it had timely mailed both the EUO scheduling letters and the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). We note that, contrary to the conclusion of the Civil Court, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law” (Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

This is posted for three reasons.  One, it is my case so I am biased.  Second, the no-show was proved through  what I call a business record foundation.  Third, we see that the level of specificity that is required on the disclaimer (again) is that of notice.