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 Assurance.  Inwood 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.