IME no show run amuck

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Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50468(U)(App. Term 2d Dept. 2014)

“A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claim after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim form was untimely”

I must disagree with the Court.  I think defendant’s contention was correct.  However, why fight a battle in a court where you cannot win?  Sounds senseless.

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3 Responses

  1. Is there another version of this decision? Because your comment implies the defendant mailed a timely notice.

  2. My only thought is that the incessant citations to Westchester-Lincoln for the proposition that the failure to timely disclaim a condition precedent to coverage will result in preclusion should stop already. The Court is citing to 7 year old Appellate Division precedent. When the court last addressed the no-show issue, they did not cite to Westchester-Lincoln for the proposition that the failure to timely disclaim will result in preclusion. In light of this trend in the last 2 no-show cases the Appellate Division has adjudicated, I believe the citation should solely be to Unitrin and its progeny from 2013.

    That is my gripe with this case and others that follow the same fact pattern.

  3. How can you argue coverage defense when an IME is simply a form of verification under the regs. Second, violation of the terms of the policy does not void the policy, but merely serves as a breach of those conditions. Finally, the case law whether its liability policy or the Court of Appeals a policy violation does not involve coverage and involves a timely denial. Even under the general liability case law after a policy breach occurred one needs a timely disclaimer or the defense is waived. See the two recent decisions by Judge Lucy Billings. First Department is off their rocker.

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