Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51718(U)(App. Term 2d Dept. 2011).
In support of its cross motion, defendant submitted an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit of the chiropractor/acupuncturist who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures”
I like Unitrin. It saddens me when it does not even earn “but see” treatment. Note the cite to Westchester v. Lincoln. I have yet to see a case entitled “Westchester v. Lincoln” or any case that Lincoln appealed to the Appellate Division, Second Department that has helped the defense bar. I think Lincoln should stop appealing cases to the Second Department.
9 Responses
I find it very telling that the Court did not cite Unitrin. It is evident that the Appellate Term, Second Department does not like Unitrin and does not accept it as precedent. The Appellate Term, Second Department continally cites Lincoln General decided by the Appellate Division, Second Department which held that an EUO no show defense is subject to preclusion. Thus there will still be confusion on this issue until and if the Court of Appeals issues a decision that resolves the conflict between Unitrin and Lincoln General. As you know, the Court of Appeals denied leave to appeal in both cases. We are in a great morass.
Unitrin contradicts the Court of Appeals decision in Presbyterian. As long as we are in New York State, the Court of Appeals decisions are the ones that are the most binding. Since when may disobey a higher court decision because of a contradictory lower court decision?
In our uniform court system, the only thing that’s uniform is what the court officers wear.
Alan, my only response to your comment is that the Court of Appeals, in its infinite wisdom, denied the medical provider’s motion for leave to appeal, therefore leaving Unitrin intact and giving the defense bar a major weapon
It is a bludgeon. I will swing it until I throw my back out.
The Court of Appeals may not have allowed the appeal of Unitrin, but they didn’t overrule Presbyterian, Central General, Zappone, Hosp for Joint Diseases or Fair Price. The law in this state is still that a breach of a policy condition is not a lack of coverage.
Has the Court of Appeals held that the failure to attend IME’s or EUO’s is a precludable defense? No. So, for everyone who says that the Appellate Division, First Department “ignored” precedent, that is not a true statement.
Now, has the Appellate Division perhaps skewed the COA rationale in holding how it did? That is the real question. Insofar as the COA did not grant leave, there could be merit to the Appellate Division’s position.
JT, in your heart of hearts, you know that Unitrin is wrong and is contrary to Chubb and the entire thrust of no-fault jurisprudence over the last 15 years.
There is a certain swift and unforgiving justice that Unitrin provides the defense bar. I like it. I lived through “peer-hearsay”, “contemporary-Geico”, “Millenium v. Liberty”, “AB-Liberty” and “the policy of insurance does not provide for EUO’s”. Now, we are living through “Fair Price”, dead assignors can assign their rights (analogue to Hospital-Travelers), Material misrepresentation in the procurement is precludable (Westchester v. GMAC) and the failure to prove mailing vitiates any toll, even though the regulation uses the term “receipt” (Crotonoa v. Liberty).
I can honestly tell you that I do not lose sleep over Unitrin. It is Quixotic in a way. Again, you want my opinion as to whether Unitrin is a proper statement of law? Well, all I am going to say is my “heart of hearts” does not bleed for the Plaintiff’s bar.