Reasonableness – the new buzz word

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50473(U)

“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

It used to be “you cannot prove you mailed it.”  Now, the new mantra is that the verification requeat/EUO request/IME request/ etc. was unreasonable.  In fact, if you look at the IME no show decisions that are being decided, the appellate courts are now including as part of their standard order language that a triable issue of fact was not raised because Plaintiff failed to demonstrate the lack of reasonableness of the demand.  I think this will only become more a hot button issue in light of a Unitrin

And how about the part regarding cc’ing counsel.  The standard now is that the provider must provide competent evidence that the assignor had counsel.