Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 2012 NY Slip Op 51058(U)(App. Term 2d Dept. 2012)
This is the first case where the Court expounded on the Triangle “R” rule, regarding late follow-up verification requests.
“On December 2, 2008, defendant requested that plaintiff’s assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff’s assignor failed to appear for the EUO. However, defendant did not mail a second request until February 12, 2009. As this follow-up request was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), and, as a result, defendant’s denial of plaintiff’s claim was untimely.”
The Court was correct on this. I would venture to say that anything sent north of 20 days after the date of the first “EUO” or “IME” is probably going to violate the Triangle “R” rule.
2 Responses
All the case law states that the secnd verification request for IMEs and EUOs has to be sent within 10 days of the non appearance. If not the denial cannot be based on that issue and if it is said denial is a nullify. Have won in arbitration just last week.
What is also noteworthy about this case is that the Court unequivocally stated that an insurer’s request that a party appear at an EUO is a request for additional verification that is subject to the strict time limits of the verification protocols. Insurers often argue that a request for an EUO is a Condition Precedent to Coverage not subject to the strict time limitations of the verification protocols with repsect to the scheduling of the EUO. In other words, insurers often argue that they can schedule an EUO of a claimant at any time (often months after the bill was received) and, upon the party’s failure to appear, can deny the claim based upon the party’s breach of a condition precdent to coverage.
This case is saying that an EUO is a request for additional verifciation. Therefore, the EUO scheduling letter must be mailed out in accordance withe verification time frames- 15 days after receipt of the bill- and the insurer must also send a follow-up request in a timely manner.