Alrof v. Safeco – its first application

Optimal Well-Being Chiropractic, P.C. v Hertz Co., 2013 NY Slip Op 50902(U)(App. Term 2d Dept. 2013)

“Since defendant did not submit evidence from anyone with personal knowledge of plaintiff’s assignor’s nonappearances, defendant’s cross motion for summary judgment dismissing the complaint was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).”

Was this result ordained by Alfrof v. Safeco?  If it is, then the future of “personal knowledge” is just not looking too promising.

Signet and hearsay

Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co, 2013 NY Slip Op 50750(U)(App. Term 2d Dept. 2013)

“The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional “informed” SIGNET that plaintiff’s assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff’s assignor had failed to appear for scheduled IMEs. In its brief, defendant argues, in effect, that it had been “notified” that plaintiff’s assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the “statement” of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff’s assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so.

It was a novel attempt to prove a no-show through the vendor.  Pre-Fogel, it would have worked.  But for the last 7 years, this is not necessarily the way to go about making your case.  The court was correct on this one.

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).”

A judge in Supreme Nassau on a standard no-fault matter applies Unitrin

New York Methodist v. Country Wide, Sup Ct. Nassau Co. Index #: 3676/11

Nassau has been all over the place on the DJ front regarding the confusion between Westchester/Lincoln and Unitrin.  Yet, when the carrier is a defendant, it always seemed that Nassau County Supreme Court would apply Westchester/Lincoln.

Here is a very recent case where that Court found Unitrin to be controlling precedent.  The best line of the case is as follows: “[p]laintiff’s simple argument that Defendant failed to prove that the notices were mailed to the assignor or that the assignor failed to appear at any of the scheduled IMEs is without merit.”  I would use this language in all civil court opps.

The failure to specifically deny the lack of appearence at an IMEs proves fatal

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50844(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) 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], lv denied 17 NY3d 705 [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 (see Unitrin at 560).”

An attorney's statement, i.e., "he did not show up" is sufficient to support EUO defense

Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U)(App. Term 2d Dept. 2012)

“Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs”

The latest line of attack in the IME no show and EUO no show wars has been the allegation that the affiant did not set forth a sufficiently detailed affidavit, proving that the claimant failed to attend his EUO’s.

In the case where the partner at the law firm swears out an affidavit that the Claimant did not show based upon the firm’s business practices, this is correct.  Where the affidavit, however, is based upon the affidavit of the person hired to conduct the EUO or IME, this type of elaborate business practice is not necessary.  Rather, a perfunctory attestation that the affiant was there and the Claimant failed to show would be sufficient.

IME no-show defense is a loser

Excel Radiology Serv., PC v Utica Mut. Ins. Co., 2011 NY Slip Op 50751(U)(App. Term 1st Dept. 2011)

“In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

How bad was the vendor affidavit?  Was there an affidavit from a healthcare professional attesting to the assignor’s failure to attend the IME?

Affidavit of doctor is sufficient to demonstrate non appearence at the IMEs

Trimed Med. Supply, Inc. v ELRAC, Inc., 2010 NY Slip Op 52057(U)(App. Term 2d Dept. 2010)

This case represents nothing new.  I like, however, the nomenclature that is found in the bold portion of the holding:

“the affidavit submitted by the doctor who was to perform the IMEs of plaintiff’s assignor established that the assignor failed to appear for IMEs in the doctor’s office, which was located at the address set forth in the IME scheduling letters

**I thank a frequent reader who pointed out that my original title erroneously stated “EUO” as opposed to “IME”.  The appropriate change has been made.

IME No-Show – Personal Knowledge

For those who are unsure what satisfies the “personal knowledge” prong of an IME no-show defense, the Appellate Term in uncharacterstic fashion spelled it out:

Radiology Today v. Geico Ins. Co. 2009 NY Slip Op 52208(u)(App. Term 2d Dept. 2009).

“The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]).”