IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 2014 NY Slip Op 02902 (2d Dept. 2014)
It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds (Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d 878, 878; see Interboro Ins. Co. v Clennon, 113 AD3d 596; Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488). In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors (Interboro Ins. Co. v Clennon, 113 AD3d at 597). Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law. see id.; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721).
“The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath”
“In light of our determination, we need not reach the plaintiff’s remaining contention.”
The Court did not cite to Unitrin, but instead cited to Fogel and Clennon. It appears that Clennon is now the new Westchester Lincoln, except the carrier won Clennon. The Court punted the pure Unitrin coverage issue; my hope is that whoever brings this argument has a good record with which to work.
9 Responses
Westchester still lives
this essentially shuts down the curiosity/anomaly that a suit with an EUO outstanding is “premature.” Great Wall Acupuncture, P.C. v NYCM. 2009 NY Slip Op 50294(U)”Since the date selected for the EUO was reasonable and plaintiff did not appear for the scheduled EUO, defendant’s motion for summary judgment should have been granted since the action was premature.”
when an insurer wants a provider EUO very little changes year to year. how is this different if documentary verification is outstanding for 10 years? if the Court is gonna go all out, go all out. if the Division is so concerned about the insurer being “entitled to obtain information promptly while the information is still fresh to enable it to decide upon its obligations and protect against false claims,” why not overturn Fair Price? Why rule that a provider doesn’t need to prove the truth of their bills- Viviane? just EUO/DJ action every claim; get rid of no-fault. Defense firms- my resume is available upon request.
Why Mike, because No Fault like Rock and Roll is here to stay. Or I think it is anyway.
I deal with too many defense attorneys in no fault who never practiced in personal injury. They just don’t get it.
The insurance carriers mantra is delay, deny, defend. But in no fault there is an added bonus – the denial of treatment may curtail the injured parties ability to overcome threshold in a personal injury suit.
Do away with no-fault – that opens the door for everyone who is injured in a car accident to sue. That would be bad for the insurance companies.
Yesterday I spoke with an old friend who used to be a no fault attorney for a defense firm that we all know, love, and is located in Westbury. He is now a plaintiff attorney and does personal injury cases in another state. No threshold in that State … big verdicts/settlements for soft injury cases that would be squashed in NYS.
So, get rid of no fault? There is no way for an insurance company to even try to contain its exposure without no fault. I am not sympathetic to insurance companies, but I do respect their plight. They can defend no fault arbs/lit but we cannot defend special damages in a BI lawsuit. No fault is the lesser of two evils.
Long Live No Fault.
Mike, why would you send you resume to defense firms. If no fault is eliminated, they are the first to go. Try Jacoby & Meyers instead.
Kurt,
In New York, the insurance carriers have a double whammy now. First, the Court of Appeals killed threshold in Perl. I mean killed it. The Third and Fourth Departments knowingly ignore the Perl rule which states that lack of contemporaneous treatment is an issue of fact as to causation; not a bar to recovery. But, the majority of the cases are in the First and Second Departments. By the way, how many threshold motions now survive appellate scrutiny? Few and far between. Now, carriers are paying out in sustained verdicts of $350,000-$1,000,000 for herniations. Second, as an added bonus, the carriers have to pay first-party no-fault benefits, which claims are difficult to defeat in arbitration. Third, the first $50,000 of treatment is lien free. Why not be a plaintiff no-fault attorney specializing in post IME services in arbitration and then grab the associated PI case?
That’s what Mike H should do.
Oh yeah the carriers are getting slaughtered. Supreme Court judges slavishly follow the Court of Appeals. So do App Divisions. Slavish adherence to the law.
And the insurance policies on these vehicles are all $500,000 dollar policies.
They must be borrowing money faster than the United States to pay for all the stupid f*&king ads that try to sell you no fault.
I want to kill that f*&king Gecco. Stomp him until he’s nothing but green slime like insurance company execs; Wrynn and the greasy haired governor.
The carriers are in it for the humanity.
Go take another hit off your crack pipe.
yeah, post IMEs and medical necessity are fine and happy, but my beef is with the ‘investigation’ of unrepresented medical facilities at the time the medical services are being rendered and the provider, having later retained an attorney, having no recourse if they later wish to cooperate. no-fault was not designed for this insurrection of common law fraud defense, as the majority of my time is spent on answering EUO letters and defending no show motions. Instead of having 5 police officers operating the Kings Civil elevators they should be investigating insurance fraud. SIU are well qualified to operates the lifts. “the Appellate Division, Second Department, has repeatedly warned insurers against either repudiating liability or defending on one particular ground and then, shifting gears, creating new means or defenses to avoid payment”…“if the foregoing holdings are ignored, the no-fault litigation would be treated like any other garden variety common-law litigation with a full panoply of discovery rights, turning no-fault litigation to its present condition—a Frankenstein monster that has assumed a life force of its own, becoming so unmanageable and uncontrollable that it acts out in ways never envisioned by its creator.” Metropolitan Radiological Imaging, P.C. v. State Farm Mutual Automobile Insurance Company, 2005 NY Slip Op 25063 [NYC Civ. Ct., Queens County, 2005.]
I have only one thing to say in response to you Jason. One thing and one thing only!!!
HAPPY BIRTHDAY young man. Have a good one. And may all your DJs be happy ones.
that makes sense! lets put all the medical providers in jail for fraud, do away with no-fault, raise the bar for serious physical injury then the court’s wont be so crowded, insurance companies will lower their rates and it will be christmas every day.
then all those incompetent non-literate lawyers the insurance companies employ can go do collection work. Oh that’s right collection companies are merging, looking for collection lawyers with a mutli-state footprint so that work is now drying up.
Wait maybe those lawyers can do construction defense. oh that is right value billing is reducing the numbers of construction defense firms.
well maybe they can do criminal defense, oh wait crime is down and 2d dep’t 18(b) is closed.
wake up douches !!!!! the only paycheck most of you are capable of collecting is because of no-fault. Otherwise most of you would be sitting in a warehouse in princeton, New Jersey writing up privilege logs, if all the grads from NYU, Fordham and SJU dont get to them first. you Douches don’t even know who feeds you.
nycoolbreez
That was cool and so true.
Can you imagine even a big time no fault lawyer really trying a case worth millions in front of a jury. They’d make the Public Defender from My Cousin Vinny look like Clarence Darrow.
And now they use terms like “have your client come in and be Queen for a day” — like their prosecutors proffering real organized crime.
The Hater wants some creep provider to fight a case so he can destroy these firms I/F/O a jury where they can’t hide.