Alrof hits Ameriprise

Ameriprise Fails to Prove EUO No-Show with Personal Knowledge

In New York no-fault insurance litigation, insurance companies frequently rely on examinations under oath (EUOs) as a defense mechanism. When healthcare providers allegedly fail to appear for scheduled EUOs, insurers often seek to deny claims and pursue summary judgment. However, as this Appellate Term decision demonstrates, simply asserting that a no-show occurred isn’t enough — the insurer must provide proper proof through someone with personal knowledge of the nonappearance.

This case adds to a growing body of law requiring strict adherence to evidentiary standards in EUO no-show scenarios. The court’s reference to the landmark Alrof decision highlights how this precedent continues to impact no-fault litigation, often working against insurance companies who fail to properly document their EUO processes. As we’ve seen in previous Alrof citations, this standard creates significant procedural hurdles for insurers.

Case Background

Optimal Well-Being Chiropractic brought an action to recover unpaid no-fault benefits against Ameriprise Auto & Home Insurance. The chiropractor filed a motion for summary judgment seeking payment of the outstanding claims. In response, Ameriprise opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that the provider failed to appear for properly scheduled examinations under oath.

The insurer’s defense centered on alleged EUO no-shows by the plaintiff medical provider. However, the critical issue before the court was not whether EUOs were scheduled or whether the provider appeared, but rather whether Ameriprise submitted adequate evidentiary proof establishing the nonappearance through testimony from someone with actual, personal knowledge of the facts.

Jason Tenenbaum’s Analysis

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins., 2014 NY Slip Op 51858(U)(App. Term 2d Dept. 2014)

“Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However,[*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130, 2013 NY Slip Op 50458 ; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126, 2014 NY Slip Op 50952 ; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130, 2013 NY Slip Op 51123 ).Accordingly, the judgment is affirmed.”

Yikes.

Legal Significance

The Alrof decision has become a cornerstone requirement in New York no-fault litigation involving EUO no-show defenses. The principle it establishes is straightforward but frequently overlooked by insurance companies: an affidavit from a claims representative or attorney stating that records show a provider failed to appear for an EUO is insufficient to establish the defense. Instead, the insurer must present testimony from someone who was actually present at the scheduled EUO location and time and can personally attest that the provider did not appear.

This evidentiary requirement stems from fundamental principles of New York civil procedure. Hearsay statements and conclusory assertions based on review of business records do not satisfy the personal knowledge requirement for affidavits supporting summary judgment motions. The affiant must have direct, firsthand knowledge of the facts asserted—in this context, that means being physically present to observe the nonappearance.

The Alrof standard protects healthcare providers from summary dismissal of their claims based on documentation that may be incomplete, inaccurate, or subject to human error in record-keeping. It forces insurers to maintain rigorous procedures for documenting EUO appearances and preserving competent proof when nonappearances occur.

Practical Implications

For insurance companies, this decision underscores the importance of implementing proper procedures to document EUO nonappearances. Simply scheduling an EUO and noting in claim files that no one appeared is legally insufficient. Insurers must ensure that someone—typically the examining physician, attorney conducting the EUO, or administrative staff physically present—can provide firsthand testimony about the nonappearance.

For healthcare providers and their attorneys, Ameriprise’s failure presents a valuable defensive strategy. When facing an EUO no-show defense, providers should carefully scrutinize the insurer’s proof. If the supporting affidavit comes from a claims representative who merely reviewed files rather than someone who was present at the scheduled EUO, the defense should fail under Alrof.

The practical impact extends to case valuation and settlement negotiations. Insurers asserting EUO no-show defenses without proper foundational proof may find their positions substantially weakened, affecting settlement leverage. Conversely, providers can more confidently pursue claims when insurers cannot satisfy the Alrof standard.

Key Takeaway

Ameriprise’s failure to provide testimony from someone with personal knowledge of the plaintiff’s EUO non-appearance proved fatal to their summary judgment motion. This decision reinforces that insurance companies cannot rely on hearsay or conclusory statements when asserting EUO no-show defenses under New York No-Fault Insurance Law — they must present proper evidentiary proof to succeed.

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