IME no show trial defense – reversed

Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)

(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”

(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing

(3) Decision reversed

IME no-show/ failure to object during claims stage is fatal to later objection

Parisien v Citiwide Auto Leasing, 2017 NY Slip Op 50684(U)(App. Term 2d Dept. 2017)

“As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person “shall submit” to IMEs “when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1), as an assignor’s appearance for a duly scheduled IME is a condition precedent to the insurer’s liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff’s objections to the reasonableness of the requests should not have been heard

It is great when the same issue keeps popping it, Plaintiff expects a different result and, surprise, nothing changes.

 

No show and non receipt

Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50603(U)(App. Term 2d Dept. 2017)

(1)  “we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear”

(2) “although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant”

To appeal for the sake to appeal

J.O.V. Acupuncture, P.C. v Amex Assur. Co., 2017 NY Slip Op 50347(U)(App. Term 1st Dept. 2017)

“This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim form at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005], lv denied 5 NY3d 713 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing of the denial, identifying the affiant as an employee of nonparty Ameriprise Auto & Home [Ameriprise], lacked probative value, since affiant failed to show any relationship between Ameriprise and defendant, or any personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period”

I always thought when a firm billed by the hour, the work product was supposed to be better.  #Alternativefacts not by Sean Spicer.

The IME recollection issue

Utica Acupuncture P.C. v Amica Mut. Ins. Co., 2017 NY Slip Op 50331(U)(App. Term 1st Dept. 2017)

“Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates”

(1) Personal knowledge

(2) Some procedure about no-shows being notated or a review of file and based upon procedure, affiant can affirmatively state the assignor failed to appear.

Unwelcome visitors at an IME

Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)

For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform.  This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME.  I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.

How many times has a Claimant stated the “IME was 3 minutes”?   Do I believe that Claimant?  Without proof, who is to say.  I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none.  I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).

AT disagrees in transparency and the First Department in a prior post on here agreed with AT.  The Second Department has now said otherwise, and I think the Second Department got it right.

“A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d [*2]at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 [1st Dept 2017]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”

Expect this to go to the Court of Appeals.

Duly scheduled Examinations Under Oath

Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co., 2017 NY Slip Op 50113(U)(App. Term 2d Dept. 2017)

“In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled.  Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint”

That word: “reschedule”.  I never had so much trepidation when I encountered tht word until recently.  Assume EIP attorney states that client cannot attend and continues to make this statement.  At what point can that carrier say it is not on consent?   That fact pattern is looming.  And assuming that a carrier has the right state the reschedule  is not on consent (which the carrier does I think in light of Stracar), does the failure to give consent contain a reasonableness prong? In IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005 (2d Dept. 2014), where the Court stated: “In view of the assignees’ unexcused and willful failure to comply with the demands for examinations under oath, and the lack of evidence of partial performance, the Supreme Court, upon renewal, should have unconditionally awarded summary judgment to the plaintiff .”

Ponder that.

IME watchdog

IME Watchdog, Inc. v Baker, McEvoy, Morrissey & Moskovits, P.C., 2016 NY Slip Op 08174 (1st Dept. 2016)

(1) “There has been no showing that the alleged tortious conduct which plaintiff seeks to enjoin, Baker McEvoy’s exclusion of non-attorneys from IMEs (except under certain [*2]circumstances), exceeds its professional duty to defend its clients (see Fried v Bower & Gardner, 46 NY2d 765, 767 [1978]) or was tainted by fraud, collusion, malice or bad faith (see Purvi Enters., LLC v City of New York, 62 AD3d 508, 509-510 [1st Dept 2009]), especially since several Supreme Court decisions are in Baker McEvoy’s favor on the issue of a non-attorney’s presence at IMEs.”

(2) “Additionally, plaintiff has not established that Baker McEvoy’s conduct was without excuse and/or justification, an element of the claims for tortious interference with a contract (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]), abuse of process (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 [1975]), and prima facie tort (see Burns Jackson Miller Summit & Spitzer v Linder, 59 NY2d 314, 332 [1983]), or was accompanied by the use of wrongful means or motivated solely by malice, a necessary element of its cause of action for tortious interference with contract (see Snyder v Sony Music Entertainment, 252 AD2d 294, 299-300 [1st Dept 1999]).”

(3) “Plaintiff’s claims of irreparable injury are belied by the fact that business has grown every year, and the testimony of plaintiff’s three witnesses reflects that their firms’ change in position, on the use of watchdogs, was made in response to adverse court rulings in their cases. The proper remedy, in those instances, would be to appeal the adverse decisions, and not commence a separate action against the attorneys who secured those rulings”

This was another interesting case.  The crux of what I am gathering is that non attorneys can be barred from witnessing IMEs.  It is an interesting proposition, and this case does not resolve the issue.  I am curious what the answer, however, really is to that question.

Maya again loses their no show cases

Harvard Med., P.C. v Maya Assur. Co., 2016 NY Slip Op 51529(U)(App. Term 2d Dept. 2016)

Liberty Chiropractic, P.C. v Maya Assur. Co., 2016 NY Slip Op 51531(U)(App. Term 2d Dept. 2016)

Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co., 2016 NY Slip Op 51534(U)(App. Term 2d Dept. 2016)

IME scheduling letters: inclusion of an apartment number

Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51523(U)(App. Term 2d Dept. 2016)

“Plaintiff’s argument, that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, the affidavit of defendant’s litigation examiner stated that defendant used the address set forth on the assignor’s application for no-fault benefits.”

This case seems to suggest that an affidavit attesting to what is on an NF-2 is sufficient evidence to prove the basis of the address on an IME scheduling letter.