Quality Psychological Servs., P.C. v Utica Mut. Ins. Co., 2013 NY Slip Op 50148(U)(App. Term 1st Dept. 2013)
“We sustain the denial of defendant’s motion for summary judgment dismissing this first-party no-fault action. Defendant’s June 26, 2008 request for additional verification in the form of an examination under oath (EUO) of the plaintiff medical provider was untimely and did not serve to toll defendant’s time to pay or deny the claim, since the request was made well beyond the requisite 15-day time period following the assignor’s EUO”
Unitrin held that the IMEs (and EUOs through subsequent case law) must be in accordance with the no-fault regulations, irrespective of the receipt of the bills. In this case, the EUO of the EIP triggered the desire to perform the EUO’s of the providers. Thus, the no-fault regulations would require that the additional form of verification be within the time constraints of 65-3.5 and 65-3.8. Also, this would be consistent with established precedent: Nyack v. Gmac., 8 NY3d 294 (2007) and Keith v. Liberty, 118 A.D.2d 151 (2d Dept. 1986)
3 Responses
excellent analysis jt however, the carrier’s very right to an euo of the provider is stated in the regs in the same breath as the right to examine the claimant. that one breach is a failure to meet condition precedent and one is apparently not is legal fiction.
I think the court was saying that if you are going to start seeking verification through an EUO and your investigation leads to the provider, then you have to abide by the timelines as it relates to verifications in the Keith v. Liberty sense. It is true that Unitrin stated that the carrier had to abide by the timelines for verification, but again, Unitrin dealt with scheduling follow-up IMEs within 10 days of the first default. Quality narrows the holding because now it takes away from the unfettered right to state that a breach of a condition precedent is a coverage defense. I think the case should be narrowly construed on its facts.
As a practitioner, I believe the better way for the court to have reached this conclusion was to say that Defendant’s papers on their own raised an issue of fact as to whether its actions were unreasonable. A plaintiff’s showing that an EUO or IME is unreasonable is sufficient to warrant a trial on the issue. Clearly, a Defendant can raise an issue of fact through its own submissions.
The problem of course is every Plaintiff now says that Quality means that every IME unitrin defense and EUO Unitrin defense is invalid unless there is evidence to show “timeliness”. Putting aside why counsel for Utica pushed this issue, there are now many red herrings floating around in the Unitrin sea.
As matter of law we don’t need Quality bc Unitrin states that the verification must be in accordance with the regs dowhen carriers ddon’t follow the Lawtthey should not be allowed to use it. I have cases where the carrier wants an euo of the provider 2 yrs after the receipt of the bill and when the provider doesn’t show tgey argue Unitrin and lose when it’s in front of a knowledgeable arbitrator and lose on appeal also. Reasonableness comes into play. Carriers want to rely on Unitrin for everything and I am happy we are seeing case law slowly dwindle that away.