So what did the Second Department mean?

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:

Part One

“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.

Part Two

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?

EUO denial substantiated

Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2013 NY Slip Op 52225(U)(App. Term 2d Dept. 2013)

“[w]e find that the affidavits submitted by defendant established that the examination under oath (EUO) notices had been timely sent to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]), and that plaintiff had failed to appear for the EUOs”

“The District Court correctly found that defendant demonstrated that the claims underlying these causes of action had been timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) based on plaintiff’s nonappearance at the EUOs. In light of the foregoing, since plaintiff’s appearance at the EUOs “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), the burden shifted to plaintiff to rebut defendant’s prima facie showing. However, as the District Court found, plaintiff did not respond in any way to the EUO scheduling letters sent by defendant.  Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs

Personal knowledge is well not too personal

Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 2013 NY Slip Op 52054(U)(App. Term 2d Dept. 2013)

“It further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012])”

(DISSENTING MEMORANDUM)

“For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath”

In this case, the “personal knowledge” was based upon an affidavit more detailed and circumspect than the affidavits circulating around in Alrof and Bright Care.  The case is really an application of ATIC v. Lucas, regarding “personal knowledge.”  While I would not say Alrof is dead, I would note that  a properly detailed business practice affidavit will suffice to demonstrate the no show.

 

EUO no-show mailing and personal knowledge substantiated

Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 2013 NY Slip Op 52031(U)(App. Term 2d Dept. 2013)

“In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. His affirmation established that the EUO scheduling letters had been mailed to the assignor in accordance with his law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that, based on the attorney’s personal knowledge, the assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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])”

Note a citing to Alrof v. Safeco

Proof of the no-show

Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 2013 NY Slip Op 52001(U)(App. Term 2d Dept. 2013)

Court found that an investigator’s affidavit and statements made on the record were sufficient to demonstrate the no-show

“Defendant also established that plaintiff had failed to appear at the duly scheduled EUOs, through both an affidavit by the investigator who had been assigned to conduct the EUOs, and statements made on the record by the same investigator

EUO no-show DJ survives numerous “you did not do that” arguments

Praetorian  v. Mercado, Index #: 303993/12 (Sup. Ct. Bx. Co. 2013)

In this declaratory judgment action, an Alrof argument was made; an electronic signature argument was made; a “you cannot file a DJ argument” was made; the you did not prove you mailed it argument was made; and an EUO provision was not in the policy argument was made.  Missing was an argument that there was no justiciable controversy (which is always denied) and that discovery was outstanding (which is usually denied).

The objections to the DJ’s are getting longer as the days are getting shorter.  The common denominator of what is missing is: a non-conclusory affidavit from the EIP that he never received the EUO’/IME notices (See American Transit Ins. Co. v. Bachus) or an affidavit from the EIP that (s)he attended the EUO/IME.

Alrof Safeco made another sighting

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 2013 NY Slip Op 51123(U)(App. Term 2d Dept. 2013)

“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”

How bad was the affidavit of no-show?

DJ based upon EUO no-shows granted over vigorous opposition

American Transit v. Chedister , Index #:  301921/12 (Sup. Ct. Bronx Co. 2013)

Supreme Court could not be anymore emphatic that it is not impressed with the Alrof v. Safeco argument that provider attorneys throw around when trying to get around an EUO no-show case.  Personal knowledge is not as personal as some want it to mean.

Personal knowledge became more personal

Alrof, Inc. v Safeco Natl. Ins. Co., 2013 NY Slip Op 50458(U)(App. Term 2d Dept. 2013)

“In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and “knowledge of his office practices and procedures,” plaintiff failed to appear at a properly noticed examination under oath (EUO).”

“The affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR [*2]3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment…. To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) would require a different result, they should no longer be followed.”

“While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations [11 NYCRR] § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).”

Assignor did not show up to his IME and EUO – double whammy

Unitrin has created this vacuum where the failure to control ones Assignor has spelled unabated doom to many a medical clinic.  Imagine having this conversation during that crazy period when the law was “the failure to attend an IME rebuts the presumption of medical necessity?” and the App. Term 1st Dept did everything in the power to avoid ruling on the merits of these cases?

(The commentator Captain America would probably think that it is unconstitutional to demand an innocent Assignor to be deposed and examined in accordance with the insurance policy upon which she is either the NI or the third-party beneficiary)

Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(U)(App. Term 1st Dept. 2012)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).”