The failure to attend IMEs is now considered a Chubb coverage defense

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 2011 NY Slip Op 01948 (1st Dept. 2011)

I would consider this matter the most precedential no-fault case I have seen in the last 4 years.  I am going to copy and past the entire decision, except for the opening paragraph.

“The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants’ assignors’ failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 ). The failure to appear for IMEs requested by the insurer “when, and as often as, may reasonably require” (Insurance Department Regulations § 65-1.1) is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 ). Accordingly, when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations § 65-3.8; Fogel, 35 AD3d at 721-22).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).

There is likewise no merit to defendants’ contention that the IME request notices were invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time-frames set forth in the No-Fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 ; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 ).

Defendants’ argument that plaintiff was required to demonstrate that the assignors’ failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 ), applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).

Defendants’ argument that all IMEs must be conducted by physicians is unavailing. Although Insurance Department Regulations (11 NYCRR) § 65-1.1(d) states that “he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the when, and as often as, the may reasonably require,” the regulations permit reimbursement for medically necessary treatment services that are rendered by non-physicians, such as chiropractors and acupuncturists, as well (see Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 22 Misc 3d 978, 979-980 ).

We have considered defendants’ remaining contentions and find them unavailing.”

Now, anything found in the condition portion of the policy endorsement is considered a coverage defense.  Here are the new coverage defenses that appeared overnight:

1. 30-day notice to report the loss.

2. 45-days to submit a bill

3. Attend IMEs

4. Attend EUO’s

Also, the medical provider or the EIP in a non-assigned case now bears burden to prove the lack of reasonableness of a request to attend an IME (or EUO), following the demonstration that the IME/EUO notices were mailed in accordance with the no-fault time frames and that the injured person (or provider where relevant) failed to appear.

I can say a lot about this decision, but I will confine my analysis to one thought.  If we are willing to let MVAIC  escape liability due to the failure of an EIP or medical provider to comply with a condition precedent to coverage, then this paradigm should not be anything different.  I previously made this point on here, both in jest and in condemnation of the courts giving MVAIC a free ride as opposed to my clients.  Yet, I never thought a court would follow the above thought process to its natural progression.

Related Articles

• Triable issue of fact as to non-appearance?
• The backtracking of Unitrin
• IME and EUO issues under Unitrin
• No-show failed the Alrof test
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2011 decision, New York’s no-fault insurance regulations under 11 NYCRR Part 65 have undergone multiple amendments affecting IME procedures, notice requirements, and coverage defense protocols. Practitioners should verify current provisions regarding IME scheduling, failure-to-appear consequences, and retroactive denial procedures, as regulatory changes may have modified the application of the Chubb exception framework discussed in this case.