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IME no-show defense is a loser

Excel Radiology Serv., PC v Utica Mut. Ins. Co., 2011 NY Slip Op 50751(U)(App. Term 1st Dept. 2011)

“In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

How bad was the vendor affidavit?  Was there an affidavit from a healthcare professional attesting to the assignor’s failure to attend the IME?


7 Responses

  1. Nice to be back in the winning.

    Hopefully leave will be granted in Unitrin and we can get this sorry chapter behind us (i.e. me).

    The quality of the vendor affidavit was not the issue. The issue was the facts. The insurer only ensured that the assignor was notified at the address set forth in the initial claim material, I believe the initial notice of claim. However, he changed addresses after that document was submitted. The insant plaintiff’s claims papers, submitted a couple of months later, had the assignor’s updated address. The simple solution for the carrier would have been to use the updated address, or submit notice to both. BUT NOOOOOO, carrier only submitted notice to the former address. On appeal, carrier argued simply that it could rely on the initial address, and ignore the new address. Some sort of play to a contractual reliance argument, which doesn’t apply in reality. This Court did not want to relieve the insurer of their duty to notify the assignor of the exams.

    Notably, the carrier failed to proffer proof of whether they received any return mail.

  2. Well I reside within the jurisdiction of the App Term 2nd 11th and 13th and according to my court the insurance company did everything right — 100% spot on.

    1. Rumor has it you reside in a bat cave in the 9th and 10th Jud. Districts…When you are not buckled down on Herbert Street.

  3. Although I must say that the 1st Dep’t. in Unitrin performed some kind of subtle magic.

    Condition precedent is a coverage defense. See Chubb. The you see Chubb where it says: Condition precedent is not a coverage defense.

    The magic is so subtle there really isn’t any. Just an embarrassing contradiction.

    But folks before you condemn the 1st Dep’t. wait till Governor Cuomo’s announcement of shifting highest courts. That’s right. Every Department is going to have a shift at being the State’s highest Court from now on. Say 2 months for the 1st; 2 months for the second etc., with the balance remaining with the Court of Appeals.

    So when that 1st dep’t decision was rendered the 1st Dep’t was actually in their rotation as the State’s top court.

  4. “Rumor has it you reside in a bat cave in the 9th and 10th Jud. Districts…When you are not buckled down on Herbert Street.”

    Hey, I thought I had the monopoly on the underground command bunker thing.

    1. Upon conducting an exhaustive search of the copyright office, I was unable to locate your copyright on the said phrase. I do apologize for any convenience this may have caused you.

  5. An unlicensed, unqualified non-governmental … they call themselves “S. E. A. L. Team” — comprised of the best SIU and NICB investigators in the industry raided the command post. Instead of looking in the basement where one finds command posts they raided the top floor. Court officers and angry court staffers threw them out. But the Court traced it to me and sent me packing.

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