Chiropractic Back Care of Queens Vil., P.C. v ELRAC, Inc., 2011 NY Slip Op 50544(U)(Dis. Ct. Nassau Co. 2011).
“In support of its motion, the defendant asserts that it was not required to pay or deny the instant claim because the plaintiff’s assignor failed to appear at scheduled IMEs. In Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 35 AD3d 720 (2d Dept 2006), the Court held that the appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see also NYCRR 65.12). As a condition precedent to the insurer’s liability on the policy, said defense is never waived and can be raised at any time (see Fair Price Medical Supply Corp. v. Travelers [*2]Indemnity Co., 10 NY3d 556 [2008]).”
I just love using Fair Price and Stephen Fogel to reach the conclusion, inter alia, that “As a condition precedent to the insurer’s liability on the policy, said defense is never waived and can be raised at any time.” What is great is that this case did not cite Unitrin for its support, even though its findings were predicated upon Unitrin. Judge Murphy is implying that the Unitrin rationale is valid in the Second Department on constraint of Fogel. I tend to agree with Judge Murphy’s legal reasoning and like his writing style – Bereft of string cites and opinions that are articulately reasoned.
I am waiting for Unitrin to be applied to EUO no shows and timely notice cases. This Unitrin case has to be the greatest disaster for the Plaintiff’s bar since Mallela. And the irony is that Defense counsel in Unitrin, based upon what I can tell, advocated for his client better than many of the attorneys who substitute garbage for legal reasoning. Yet, this did not stop the unmitigated disaster that seems to have an infinite amount of aftershocks.
16 Responses
In my opinion, it is not proper to cite Fogel for the proposition that the IME no-show defense is not waivable. Although Fogel stands for the proposition that an insurer can void coverage back to the date of loss, there is nothing in Fogel that says that the denial can be untimely. I believe that the denial in Fogel was, in fact, timely.
If Judge Murphy’s analysis of Fogel is correct, then Fogel would be inconsistent with Lincoln General where the Appellate Division, Second Department specifically held that an EUO no show defense was subject to the preclusion rule.
I wrote the appeal in Fogel. The denials were timely.
Then you know that Fogel does not stand for the proposition that the IME defense is nonwaivable.
I think the Judge was confusing saying that a carrier can retroactively deny benefits with thinking that that the denial does not have to be timely. They are two different concepts. Fogel stands for the proposition that you can retroactively deny benefits but the denial still must be timely.
The fact that the hold:
“As a condition precedent to the insurer’s liability on the policy, said defense is never waived and can be raised at any time.”
The fact that it is totally wrong when compared to the decision cited to and the other Court of Appeals precedent does not figure into your analysis is particularly praise worthy Jason.
Condition precedents do not equal so called coverage defenses.
You are the exact opposite of intellectually honest — maybe even the exact opposite of “intellectual” which means we can throw out honesty.
“Honesty” I expect too much out of anyone.
what about me Ray, am I intellectually honest.
I think it’s a shame that the Insurance Department doesn’t take a more active role in helping the courts interpret the Regulations. It doesn’t do either side good in the long run for the pendulum to keep swinging back and forth.
Its also a shame that the Insurance Department does not police insurance companies as they are supposed to. That might help the Courts and the consumers.
The real problem the providers face with the IME and EIP based EUO no-show defenses is that these are matters that should probably not be assigned. A high volume no-fault collections law firm that prosecutes tens of thousands of PIP cases a year with an attorney fee derived from the amount of the bill and a cut of the principle and interest, it cannot seriously be expected to utilize scarce resources to locate EIP’s to provide substantive affidavits in opposition to an IME or Assignor based EUO defense. It is economically inefficient and in many cases futile. Of course, should an hourly attorney fee be introduced, then this is a different story. At the end of the day, however, it is only the EIP that can provide the “defense” to these coverage defenses, i.e., lack of reasonableness. Perhaps Unitrin, on some level, introduced a degree of sanity to no-fault, however doctrinally sound or unsound it is.
You are right on JT about the difficulty in finding out the circumstances of the IME no-show. Two cases were presented to me recently: 1) the carrier never sent the scheduling letter to the claimant and the carrier confirmed this, in writing 2) the claimant was on vacation when the letters went out, when he came back he tried to schedule the IME, the carrier refused. This was all explained to the carrier by the personal injury attorneys and documents supporting the claimant’s story were supplied. I feel these are good matters to litigate. And it wasnt easy tracking down all the information and circumstances of the missed IME, as you suggested.
But what Unitrin means is anyone’s guess in the circumstances described above.
My whole life is a lie. I am the ultimate in spiritual dishonesty.
Lustig is the epitome of intellectually honest. Good points J.T. and you Kurt — because the Ins. Dept. is such a [edited for content]. The dept was created to help consumers. When that [edited for content] took over the two things he said were: 1) it is an important industry; 2) I love politics.
[edited for content]
Who did the [edited for content] in Zuppa’s last post? Zuppa or JT?
I did. I do it to protect Mr. Zuppa from himself as well as the integrity of this blog.
The problem with showing that certain words or phrases were edited out of a posting, is that the reader is then left to use his imagination as to what was deleted. The reader may imagine something much worse than what was actually written, and still attribute that to the author. Editing is quite an art.
A movie critic may write, “This movie is awful. I couldn’t wait to leave the theatre. I recommend that no one see it!” An ad for the movie can quote the critic: “I couldn’t wait to… see it!”
Some things are better left for the imagination.
Believe me it was much worse then anyone could imagine. When the Pit returns it will all be up there and more. Rogak do you want a link to the New Pit?
Ray, I cant protect you from yourself on the Pit.