Mr. Five Boro took another dive – this time with the sharks

Mr. Five Boro took at dive in the IME no-show DJ matter of American Transit Ins. Co. v. Beltre, under Bronx Co. Index #: 310468/11 (Sup. Ct. Bronx Co. 2012 [Suarez, J.S.C.])

I took on the runners and won

I liked that title, but it is not necessarily true.  It is an embellishment at best, and if you clicked on it, then it did the trick.  In actuality, here is an interesting DJ victory that was obtained in Nassau.  I think it discusses various issues involving (1) the use of DJ’s; (2) timing issues; and (3) objective criteria used to demand EUO’s.  It is a thoughtful order, and should give the bar pause when pursuing EUO’s.  Read here.

A reasonable basis inquiry to the propriety of an EUO is foreclosed absent a timely objection

Crescent Radiology, PLLC v American Tr. Ins. Co., 2011 NY Slip Op 50622(U)(App. Term 2d Dept. 2011)

“The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant’s request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).”

This is an important case, and I think it can be read two ways.  First, it can be read to require that an objective basis be necessary to compel the attendance at an EUO, but that inquiry is waived without an objection.  Second, it can be read to require that an objection be lodged prior to a “reasonableness” inquiry being considered.

Since the DOI has opined that an objective basis inquiry has no bearing on whether to substantiate the validity of the EUO demand, it would seem that the court is therein discussing the reasonableness inquiry.  That being said, the prudent plaintiff attorney should (and usually does) communicate with the insurance carrier explaining why the EUO is improper, following receipt of the demand.  Similarly, the insurance carrier should promptly respond to the plaintiff’s objection letter explaining why the EUO is reasonable or justified.  At that point, the ball is in the plaintiff’s court to decide what to do.

Summary judgment granted on EUO no-show defense – interesting analysis

Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51605(U)(App. Term 1st Dept. 2010)

The Appellate Term, First Department, which many have felt is more favorable to the providers than the Appellate Term, Second Department, 2nd, 11th and 13th Jud. Dis., granted State Farm’s motion for summary judgment dismissing the complaint, based upon the provider’s failure to attend duly scheduled EUO’s.  Before I begin my discussion of the case, it bears to note that the Appellate Term, First Department has historically been less forgiving to the providers than the Appellate Term, Second Department, 2nd, 11th and 13th Jud. Dis., on the discreet issue of the violation of conditions precedent to coverage.  The no-fault historians out there will note that at the same time the original Appellate Term, Second Department, 2nd, 11th and 13th Jud. Dis. Fogel decision was adjudicated, the Appellate Term, First Department decided Inwood v. General AssuranceInwood was a huge case, because I think it set in motion the current analysis as it relates to the IME no show and EUO no show defense.  In subsequent cases, the Appellate Term, Second Department has (until recently as evidenced in the Rios dissents) scrutinized the IME no-show affidavits, EUO no-show affidavits and the doctor affidavits attesting to the non-appearance of the EIP, and has denied insurance carrier summary judgment motions due to certain perceived infirmities in those affidavits.  As I have confessed on here before, I fell victim to the scrutinizing of these affidavits once because I left out the words “and to the attorney” on an IME no show vendor affidavit.  These defects, however, are usually overlooked by the Appellate Term, First Department in the policy violation cases.  A close reading of Inwood will prove this point.

Now, onto the merits of this case.  We see that the EUO endorsement does not have be annexed to the moving papers.  The Appellate Term, First Department has said this a few times, so this is of no moment.  To me, the huge issue involves the following part of the decision: “Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination”

The Department of Insurance in a circular letter opined that an EUO request is improper if it seeks the deposition of a particular member of a P.C. or LLC.  This case appears to be contra to the DOI letter.  Now, I am not going to say that this decision overrules what the DOI said in their opinion letter, since it is unknown, at this juncture, whether those arguments were preserved in the record in the court below and properly articulated on appeal.  To quote the famous phrase: “your guess is as good as mine”.  It would behoove the plaintiffs bar to probably locate the record on appeal in this case and copy it, since this issue has been adjudicated adversely to the insurance carriers in numerous arbitrations and unpublished lower court opinions.  Finally, I sense this case overturns Judge Hirsch’s interesting decision out of District Court, Nassau County, in Dynamic v. State Farm.

This one takes the cake

Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20285 (Dis. Nassau 2010)

I am somewhat flabbergasted at this decision.  I am pretty down the middle (I think) and I really try to be as fair as I can on this blog.  With that introduction, I will say the following.  I would probably volunteer to do the appeal on this one, just because it is off on the law, the facts and is against the trend of every modern case that has come out of both branches of the Appellate Term, Second Department, as well as some “hidden” Appellate Division precedent, which I will not disclose.  You can read the facts of this case at your leisure.