Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins., 2014 NY Slip Op 51858(U)(App. Term 2d Dept. 2014)
“Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However,[*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50952[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the judgment is affirmed.”
I am not sure what to make of these two decisions. Read them yourself. I think Alrof is wrong. The Appellate Division in Lucas rejected it and the Appellate Term, Second Department in Quality v. Interboro clearly will not hold it as sacrosanct when a proper practice and procedure affidavit is presented.
Medcare Supply Inc. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 51421(U)(Civ. Ct. NY Co. 2014)
New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 24277 (Civ. Ct. NY Co. 2014)
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 51310(U)(App. Term 2d Dept. 2014)
I often feel like this Plaintiff attorney is seeking to reinvent the wheel. It is just amazing how many times he appeals the SAME issues and (surprisingly) receives the SAME results. And each decision comments on one more subtle defect in this particular attorneys arguments. This is how bad law is made.
“In appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.”
(1) “EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”
(2) “the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”
(3) “Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard ”
(4) “Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion”
American States Ins. Co. v Huff, 2014 NY Slip Op 05366 (1st Dept. 2014)
(1) “[p]laintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured…”
(2) “Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.”
(3) “We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.”
(4) “In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2nd Dept 2011], lv denied 117 NY3d 703 ))”
(5) “Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.”
(6) “An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Const. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 ; Losner v Cashline, L.P., 303 AD2d 647, 648 [2nd Dept 2003]).”
This is perhaps the DJ of the year so far. So many principles of law have been established and/or confirmed. First, the medical provider and or assignor must cooperate with the EUO, i.e., attend it and answer questions. Second, the failure to cooperate during the EUO through walking out during it, objecting too many times, engaging in obstructionist behavior can lead to a violation of a condition precedent to coverage, provided Park v. Long Island Insurance Company warnings are set forth.
The unsettled question that may play out now is: what constitutes obstructionist behavior? We know the outter bounds of what constitutes this behavior. But, how many objections is required before a disclaimer may be issued? What happens if an EIP or medical provider lies during the EUO? How does Utica v. Timms (you can lie and not lose your benefits) work into this equation? There a lot of unanswered questions. In my mind, the extremes will allow for a disclaimer. Misrepresentations and a few inappropriate objections will probably not trigger a Huff remedy.
On top of that, the contents of the EUO transcript are admissible without further foundation against the medical provider. Counsel for Defendant was successful at making that argument in Civil Court Kings County against me a few years ago, i.e., you cannot use the contents of the EUO transcript against the innocent assignee. I thought it was an incredulous argument, which would be shot down at the Appellate Term or Appellate Division.
Funny enough, counsel in the Civil Kings case pressed his luck in front of the First Department and rightfully saw what five learned jurists had to say about that argument. These are all good things in my mind.
I believe that this case is probably somewhere between the ATIC dj appeals and Unitrin as to its precedential value.
SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 50952(U)(App. Term 2d Dept. 2014)
Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”
Seems to be the same cohorts that draw Alrof citations. In my mind, after you lose, change the affidavits. Appealing the same losing affidavits is insane and helps nobody. The definition of insanity is to do the same thing over and over again and to expect a different result.
Oh and do not think I for a second think Alrof is a correct statement of the law. American Transit v. Lucas proved that wrong. But this Court is a bit “thick” at time and unless its own precedent gets overruled,
Putting aside certain disdain towards the Second Department punting the “absolute coverage” component of Unitrin and ATIC v. Lucas, the IDS case said that when carrier wants an EUO of whoemever, no is not a suitable answer. The case also spoke about “partial performance”, which probably means showing up to the EUO. I am not sure what needs to be answered to constitute partial performance, although answering relevant questions would seem to fit the bill.
The question that of course lingers, and is quite manifest is what happens when the provider says I will not show up because you did not do ………. or do not have ……….. and the carrier either says we stand by our demand or ignores the provider. Master Dachs said the following in Blank v. Geico, 412013060819
“Indeed, “It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to Indemnify, constitutes a material breach of the policy, precluding recovery of the policy proceeds.” IDS Property Cas. Ins. Co. v. Stracar Medical Services, P.C., 116 AD3d 1005 (2d Dept. 2014) (internal quotation marks and citations omitted). Insofar as applicant’s complaint that the Lower Arbitrator “Ignored the Insurance carrier’s failure to respond to the applicant’s … objection letters” is concerned, assuming, arguendo, that responses were required, the record before me demonstrates that adequate responses were given.”
Note: “assuming arguendo”. Read this how you want, but I think assuming arguendo leads to a certain result.
Muhammad Tahir, M.D., P.C. v Hertz Claims Mgt.,2014 NY Slip Op 50625(U)(App. Term 2d Dept. 2014)
“The Civil Court denied defendant’s motion.”
“Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”
If you follow this blog, you will know that “Alrof” is not really good law. For reasons I am not even going to discuss on here, I ended up challenging this proposition of law and prevailed on it. The First Department (ATIC v. Lucas), the Second Department (Interboro v. Clennon) and this Court (Quality v. Interboro; Ortho Products v. Interboro) have all found that Alrof does not mean what it says.
But, in this Court, if you wish to resurrect W&Z v. Amex, the affidavit from the “partner” had better lead that horse to water and make it drink it. And, it is not the quantity of verbiage that is in the affirmation which will win the day, it is how you present it, lay it out and assert it.
Active Chiropractic, P.C. v Praetorian Ins. Co., 2014 NY Slip Op 50634(U)(App. Term 2d Dept. 2014)
Standard EUO no-show motion. However, the issue (among others) involved the proof of no-show. Is a certified EUO bust statement sufficient to prove the no-show? The answer is yes and the complaint is dismissed.
“Defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests.”
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 50134(U)(App. Term 2d Dept. 2014)
“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”
Interboro Ins. Co. v Clennon, 2014 NY Slip Op 00092 (2d Dept. 2014)
While of course I am happy to have won, and, in addition, I can say I have written more IME/EUO no show briefs than I could ever imagine, this case leaves me with a “where are we going” feeling. I wrote the brief, argued the appeal and know the record, so this opinion – how it was written – was unexpected.
Should I now start filing in Nassau again? Well, it is across the street from my office and the filing rules are a lot more convenient than what I encounter at a Motion Support Part, Room 130. The clerks are nice there. For instance, a clerk in Supreme Queens told me today that there was no such thing as a hybrid Article 78/Dec action and started crossing out “Plaintiff” (next to petitioner) and “Defendant” (next to respondent) on my papers. I decided that I would file my memorandum of law on the return date in the Central Motion Part courtroom. I shrugged my shoulder since that was not the fight to pick.
So what did Clennon say:
“The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds” (Argento v Aetna Casualty & Surety Co., 184 AD2d 487, 487-488; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559).”
Argento does not mention preclusion. It solely states that failing to attend an EUO is fatal to the Claimant’s right of recovery under the policy. Then Unitrin is mentioned, which is what started this whole coverage storm. And Unitrin and all of the First Department cases I won that cite to it state that timeliness is irrelevant.
What was not mentioned? Westchester v. Lincoln. The court was well aware of that decision as it was in Appellant’s brief and mentioned during argument. This omission was no accident by the way.
Then the Court states this in one sentence: “Here, the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor.”
Was the “timeliness” issue dicta? In other words, mention it so that way the Court did not have to unequivocally reach the Unitrin issue? I suspect this is what happened, and I truly believe that through arguing this case. I think the court passed the buck to the Appellate Term, Second Department, to see what they will do.
By analogy, do any of you remember when the Appellate Term, First Department in 2006 said: “Even assuming, without deciding, that a peer review report may suffice, without more, to establish a prima facie showing of lack of medical necessity” (Vladimir Zlatnick, M.D., P.C. v Travelers Indem. Co., 12 Misc.3d 128(A))? Now, Plaintiffs in the First Department on appeal depending on the case have to jump through hoops to beat back summary judgment on the issue of lack of medical necessity. I think this could be the beginning of the tide change, a slow one at that.
The only problem with my hypothesis is that inasmuch as so few failure to comply cases make it to the Appellate Division, Second Department, it will be many years before my hypothesis is proven correctly or incorrectly.
A few more tidbits. The Court accepted the same affidavit of mailing and no show that was accepted in Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc.3d 143(A) and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146(A). This is similar to American Transit v. Lucas, where the Appellate Division, First Department, accepted a no-show affidavit that was between “I was there and he did not show” and the conclusory “I am a partner and I know he did not show”. So, Alrof is dead but W&Z is not revived. Something in the middle is the law. In addition, Defendant argued vigorously that my affidavit was not Alrof compliant, so the issue was squarely before the Court.
The court also found persuasive the argument that discovery was waived since there was no challenge to the propriety of the EUO notices during the claims verification sta ge.
I wish I could say there would be more of these cases being appealed to this Court, but this was my only Second Department case (from my 2010 inventory) and I was Respondent. I think Progressive files a lot of no-show DJ’s in Nassau?