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”

Helpful holdings

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 51041(U)(App. Term 2d Dept. 2019)

“We note that neither defendant’s transmittal of the claims from one of its offices to another of its offices nor the location of the office within which the timely EUO scheduling letters were generated raises a triable issue of fact.”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51045(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact. “

Triable issue of fact as to non-appearance?

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51038(U)(App. Term 2d Dept. 2019)

“In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint “

So this case should now devolve into a deposition of the provider to find out what number he called and when called. Of course, we want the phone records to show that indeed (s)he did call. And if the evidence is not there? Wire fraud? Perjury? Civil Rico? The imagination knows no boundaries.

Alas Lifespan Wellness, Pt, P.C. v Citywide Auto Leasing, Inc., 2019 NY Slip Op 51040(U)(App. Term 2d Dept. 2019)

“Plaintiff failed to raise an issue of fact in opposition to defendant’s motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled”

This is a thorny area of law. What is a reasonable cancellation? We all like bright line rules. These make Article 75’s possible, Civil appeals more certain and allow a better degree of predictability. Like many, I do not like when I cannot determine the right answer from an other common set of facts.

You know DFS does NOT approve of this disclaimer

Hereford Ins. Co. v Forest Hills Med., P.C., 2019 NY Slip Op 03926 (1st Dept. 2019)

” Moreover, movant defendants failed to demonstrate a meritorious defense. The failure by the occupants of the vehicle to subscribe and return the transcripts of their examinations under oath violated a condition precedent to coverage and warranted denial of the claims (see Hertz Vehs., LLC v Gejo, LLC, 161 AD3d 549[1st Dept 2018]). “

I really find this basis to disclaim coverage disingenuous. The EIP came to the EUO, told his or her story, lied or did not lie. We go from there. I cannot fathom how the failure to return an EUO transcript – which is a sworn to document and which may be used against the deponent or the assignee as a matter of course – warrants the loss of no-fault benefits.

I am quite sure that DFS did not put the “and subscribe the same” (11 NYCRR 65-1.1[b]) language in the regulations to authorize the voiding of coverage due to the failure to sign the transcript. I also suspect this case will spur either an emergency amendment from DFS or an opinion letter. Thankfully, this appeared in the context of a motion to vacate a default, which means the Court of Appeals will not touch this matter, i.e., the failure to establish a reasonable excuse is reviewed under an abuse of discretion standard that will not be upset on appeal.

I think this basis for a disclaimer is the colloquial playing with fire.

EUOs

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 50759(U)(App. Term 2d Dept. 2019)

” Furthermore, 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 twice failed to appear and that the [insurer] issued a timely denial of the claim[]”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 50760(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact.”

App Term EUO cases (ad nauseam)

LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co., 2019 NY Slip Op 50696(U)(App. Term 2d Dept. 2019)

” Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment….”

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50700(U)(App. Term 2d Dept. 2019)

“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”

K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 2019 NY Slip Op 50687(U)(App. Term 2d Dept. 2019)

“Plaintiff correctly argues that the initial EUO scheduling letter sent to plaintiff had been sent more than 30 days after defendant had received the claims seeking $348.80, $204.41, $148.69, and $91.42. As a result, the request was a nullity as to those claims”

BC Chiropractic, P.C. v Farmers New Century Ins. Co.,2019 NY Slip Op 50680(U)(App. Term 2d Dept. 2019)

” While the Civil Court correctly noted that defendant’s January 13, 2012 letter was a delay letter, which did not toll defendant’s time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground”

The common refrain here is that the objective basis for the EUO is not part of the an insurance carrier’s prima facie case.

Provider EUO requests

First Class Med., P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 50477(U)(App. Term 2d Dept. 2019)

“The initial EUO scheduling letter resulted in a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs “

This is just a restatement of the Arco law. No new ground is covered in this case.