There is no coverage for this loss

Independent medical examinations represent one of the most important tools available to no-fault insurance carriers for verifying the medical necessity and causation of claimed injuries. New York Insurance Law Section 5106 authorizes carriers to require injured parties to submit to IMEs as often as reasonably necessary, provided the examinations are scheduled at reasonable times and places. When an injured party fails to appear for a properly scheduled IME without reasonable excuse, carriers may disclaim coverage based on the failure to comply with this statutory condition precedent to recovery. This defense, commonly referred to as an IME no-show defense, has generated substantial litigation concerning the procedural requirements carriers must satisfy to establish the defense and the evidentiary standards applicable to such cases.

The critical elements of a successful IME no-show defense include proper scheduling of the examination with adequate advance notice, mailing of scheduling notices to the correct address, proof that notices were actually sent, and demonstration that the injured party failed to appear without reasonable justification. Carriers typically establish these elements through affidavits from claims personnel or IME scheduling coordinators describing the office’s mailing procedures and confirming that IME scheduling letters were sent to the injured party. The sufficiency of such proof has been the subject of numerous appellate decisions establishing minimum standards for mailing affidavits and no-show documentation.

Case Background: American Trust Insurance Co. v Solorzano

American Trust Insurance Company commenced a declaratory judgment action seeking a determination that no coverage existed under its no-fault policy for medical treatment arising from an accident. The carrier based its coverage denial on the injured party’s failure to appear for properly scheduled independent medical examinations. The defendants in the action included the injured party Solorzano as well as medical providers New York Spine Specialists and Advanced Orthopaedics, who had treated the injured party and held assignments of benefits.

At the trial court level, Supreme Court Bronx County denied American Trust’s motion for summary judgment against New York Spine Specialists and for a default judgment against the non-appearing defendants. The court also granted NYSS and Advanced Orthopaedics’ motion to dismiss the complaint pursuant to CPLR 3211(a)(4), apparently based on the existence of pending Civil Court actions involving the same claims. American Trust appealed, arguing that it had submitted competent evidence establishing the IME no-show defense and was entitled to a declaration of no coverage. The First Department was tasked with evaluating whether American Trust satisfied its evidentiary burden and whether dismissal based on pending Civil Court actions was appropriate.

American Tr. Ins. Co. v Solorzano, 2013 NY Slip Op 05179 (1st Dept. 2013)

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 10, 2013, which denied plaintiff’s motion for summary judgment against defendant New York Spine Specialists (NYSS) and for a default judgment against the non-appearing defendants, and granted NYSS and defendant Advanced Orthopaedics’ motion to dismiss the complaint as against them pursuant to CPLR 3211(a)(4), unanimously modified, on the law, to grant plaintiff’s motion for summary judgment as against NYSS and, upon a search of the record, Advanced, and it is declared that there is no coverage with respect to the injured defendant’s accident under plaintiff’s policy, to deny NYSS and Advanced’s motion to dismiss”

” demonstrated its entitlement to summary judgment by submitting competent evidence of the mailing of the notices scheduling the injured defendant’s independent medical examinations and of her failure to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 , lv denied 17 NY3d 705 ). Under the circumstances, it was an improvident exercise of discretion to dismiss this action because of [*2]two pending Civil Court actions, particularly in favor of Advanced, which had defaulted in this action.”

I can sleep better knowing that Unitrin is not going away anytime soon. From my vantage point, I have an idea of the the bare minimum of the what the Appellate Division requires to be included in mailing and “no-show” affidavits. Tellingly, it is not as much as some of these would like it to be. Also, the non-defaulting Answering Defendant vigorously fought the no-show issue.

Legal Significance

The First Department’s decision in American Trust v Solorzano reinforces the continued viability of the Unitrin Advantage Insurance Co. v Bayshore Physical Therapy standard for establishing IME no-show defenses. The Unitrin decision, which has been cited in numerous subsequent cases, established that carriers can meet their prima facie burden through competent evidence of mailing IME scheduling notices and proof of the injured party’s failure to appear. American Trust’s citation to Unitrin confirms that this standard remains good law despite ongoing challenges from providers seeking to impose more stringent evidentiary requirements on carriers asserting no-show defenses.

The decision provides important guidance on the evidentiary threshold required for summary judgment on IME no-show claims. While the court’s opinion does not detail the specific content of American Trust’s mailing and no-show affidavits, the holding that these materials constituted “competent evidence” sufficient to warrant summary judgment indicates that carriers need not present exhaustive documentation to establish the defense. The court’s characterization suggests that affidavits describing standard office mailing procedures and confirming that scheduling notices were sent to the injured party at the correct address, coupled with evidence that the injured party did not appear, satisfy the carrier’s initial burden.

The decision also addresses an important procedural issue regarding dismissals based on pending related actions in other courts. The First Department determined that dismissing the Supreme Court declaratory judgment action based on pending Civil Court actions represented an improvident exercise of discretion. This holding recognizes that while courts possess discretion to stay or dismiss actions when related proceedings are pending elsewhere, such discretion must be exercised carefully. The fact that Advanced Orthopaedics had defaulted in the declaratory judgment action particularly counseled against dismissal, as allowing dismissal would have rewarded the defaulting party by eliminating the consequences of its default.

Practical Implications for No-Fault Litigation

For insurance carriers, American Trust confirms that the Unitrin standard remains the applicable framework for establishing IME no-show defenses on summary judgment. Carriers should continue preparing mailing and no-show affidavits that address the core elements established in Unitrin and its progeny. These affidavits should identify the affiant’s position and role in the claims process, describe the office’s standard procedures for scheduling IMEs and mailing scheduling notices, confirm that those procedures were followed in the specific case, identify the date notices were mailed and the address used, and attest that the injured party failed to appear for the scheduled examination.

While some providers advocate for more detailed evidentiary requirements, including testimony from individuals who personally deposited specific letters in the mail or detailed proof correlating certified mail numbers to return receipts, American Trust indicates that such extensive proof is not necessary to establish a prima facie case. Carriers can rely on affidavits from supervisory personnel with knowledge of office procedures and records showing that notices were sent, without requiring testimony from the specific individual who physically mailed each letter.

For medical providers defending against IME no-show claims, the decision demonstrates that appellate courts will generally uphold summary judgment for carriers when competent mailing and no-show evidence is submitted. Providers seeking to defeat such motions must come forward with evidence raising triable issues of fact, such as proof that the injured party actually did attend the examination, evidence that scheduling notices were not received due to improper addressing, or showing that the injured party had reasonable excuse for the non-appearance. Conclusory assertions of non-receipt or generic challenges to mailing procedures typically will not suffice to defeat summary judgment.

The decision’s treatment of the dismissal issue also provides strategic guidance. Providers who have defaulted in declaratory judgment actions should not expect courts to exercise discretion in their favor by dismissing those actions based on pending collection actions in other forums. The default itself weighs against dismissal. Similarly, carriers should move promptly to restore defaulted cases to active calendars and seek default judgments when appropriate, rather than permitting defaulted declaratory judgment actions to languish while collection actions proceed elsewhere.

Related Articles

• Understanding IME No-Shows in New York No-Fault Insurance Cases
• IME Notification Requirements in New York No-Fault Cases: Address Matching Rules
• IME No Show: Understanding Confusing Court Interpretations of Duplicate Mailing Requirements
• Triable issue of fact as to non-appearance?
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2013 decision, New York’s no-fault insurance regulations may have been amended, particularly regarding IME scheduling procedures, notice requirements, and summary judgment standards in coverage denial cases. Practitioners should verify current provisions of the Insurance Law and applicable regulations when handling IME non-compliance matters.