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.
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 ; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ). 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 ). 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.
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?
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 ), 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 ; 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.
Jones v Seta, 2016 NY Slip Op 06556 (1st Dept. 2016)
“Defendants’ discovery, after the filing of the note of issue, that Jones had been involved in prior accidents involving the same body parts alleged to have been injured in the subject accident, constitutes “unusual or unanticipated circumstances” warranting further discovery (22 NYCRR 202.21[d]; see Bermel v Dagostino, 50 AD3d 303 [1st Dept 2008]). However, defendants have not articulated a need for a supplemental physical examination, as the IME doctor has already examined Jones, documented his or her findings, and can supplement the same upon receipt of the records relating to Jones’ prior injuries and treatment”
By analogy, false statements at an EUO regarding prior injuries would then warrant a subsequent EUO. Assuming the false statements at the second EUO are not remediable, is this a ground for disclaimer?
AVM Chiropractic, P.C. v 21st Century Ins. Co., 2016 NY Slip Op 51354(U)(App, Term 2d Dept. 2016)
“Contrary to plaintiff’s only arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”
I like this case because it cites the Active Chiro case which discussed certified transcripts of no-show. That issue played out at the First Department in Liberty v. KO
Liberty Mut. Insurance Co. v K.O. Med., P.C., 2016 NY Slip Op 06166 (1st Dept. 2016)
Violation of 3.5(b); 3.6(b)
(1) Plaintiffs seek, inter alia, a declaration that defendant is not entitled to no-fault insurance benefits because it failed to appear for examinations under oath (EUOs). However, plaintiffs failed to demonstrate that the EUOs were properly noticed (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Counsel’s affirmation may be sufficient proof that the requests for EUO were mailed (see Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 130 AD3d 465 [1st Dept 2015]), but neither the affirmation nor anything else in the record establishes that the requests were mailed in accordance with the time frames set forth in the no-fault implementing regulations. Under the circumstances, the timeliness of plaintiffs’ claim denials is immaterial (see Interboro Ins. Co., 112 AD3d 483).
In this case, the insurance carrier sought to EUO the provider regarding various bills that were received from numerous Assignors If you read the papers, there is no mention of when the billing was received. There was proof of mailing of the EUO letters and uncertain bust statements. The court in light of the recent holdings correctly found that there was no evidence that the EUO’s were timely scheduled relative to the receipt of the bills
Failure to prove the no-show
(2) “Plaintiffs also failed to establish prima facie defendant’s failure to appear for the EUOs. The transcripts submitted to show defendant’s failure to appear on certain dates were uncertified and unsworn (see Rue v Stokes, 191 AD2d 245, 246-247 [1st Dept 1993]), and no evidence was submitted with respect to the other dates.”
This struck me as odd since the proofs in this case were neither better nor worse than the proofs in Allstate v. Pierre. The carrier should have put a business record foundation paragraph for the EUO bust statements in the affidavit. Of course, Pierre would have been decided differently under the current standard of law.
This could be chronicled under the headline: the perils of DJs when people answer.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 51026(U)(App. Term 2d Dept. 2016)
“Plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue. Thus, it cannot raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 ; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to [*2]CPLR 3212 (f).”
City Care Acupuncture, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51036(U)(App. Term 2d Dept. 2016)
“[p]laintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.
“[O]n appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”
This one makes sense. No show for the first. Shows for second but reschedules. Misses rescheduled date. Case tossed.
But I cannot help but but quote this line: “On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15...” I cannot help but think if the “partner affirmation” was addressed as a reason for denying summary judgment, the result would be different. OOh…… Query: Is it malpractice for a plaintiff not to address the partner affirmation as a basis for denial of defendant’s application for summary judgment?
Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2016 NY Slip Op 26211 (Civ. Ct. Kings Co. 2016)
The Court here stated the following:
(1) “The only remaining issue before the Court is whether or not the EUO transcripts allegedly generated at the scheduled EUOs are business records which may be used to show that the respective providers failed to appear at their scheduled EUOs, and the weight to give these records if they are admissible.”
(2) “There is no question that the certified EUO transcripts can be used in a motion for summary judgment (see MML Med. Care, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 51792[U]; Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 50634[U], Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip OP 50634[U]), but there appears to be no cases on “all fours” concerning the use of such EUO transcripts at trial.”
I would submit that the case Allstate Ins. Co. v. Pierre, 123 A.D.3d 618, 618 (1st Dept. 2014)(“Plaintiff also established that the statements on the record were business records”) would have easily disposed of the issue in this case What is flustering to me is that the Court never cites to Pierre and it looks like Defendant failed to cite to the case.
Two more comments here that I want to share. This case underscores why it is worth the extra $100 (per no show) to obtain a bust statement. First, you do not have “the partner affirmation”, which the Appellate Term has continuously rejected. One wonders if that affirmation is tantamount to legal malpractice at this point. Second, you have a documentary basis for asserting the fact of the no-show. If the case goes to trial, you have evidence that can prove the defense. Counsel here for defendant properly represented their client in this regard.
A final confession here. For many years, I was not sold on the bust statement. I have also proven that a well worded affidavit can meet even the demanding Appellate Term Second Department standard for a no-show. But those “partner affidavit” cases admittedly have scared me and many others out there. A bust statement is just a better practice because of its durability and contemporaneity of the event being recorded. The old adage comes to play: “fool me once, shame on you. fool me twice, shame on me.”