Acupuncture Approach, P.C. v Allstate Ins. Co., 2015 NY Slip Op 50318(U)(App. Term 1st Dept. 2015)
“defendant failed to satisfy its initial burden of establishing, prima facie, “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests.”
If the failure to appear at IMEs/EUOs voids the policy ab initio, then how could the billing of provider where the letters are within 15 business days of receipt of the billing of that providers be relevant? Clearly, this decision would only allow the billing of certain providers to be voided. This is incongruous to underpinniings of Unitrin
16 Responses
Because it’s only the failure to attend timely requested IMEs/EUOs that voids the policy. Nothing illogical about it.
Its illogical to have NOT put in the proofs and establish the no show.
Finally some courts and judges are begining to see the limits and the irrationality of Unitrin. This is a second decision by the App Term 1st Dept that at least tries to follow the Regs. Unitrin is an contrary to every aspect of insurance coverage litigation. Even assuming the fact that failure to appear at an EUO or IME is a coverage defense, which a plain reading of the Regs establsihes it is not, still requires a timely and proper disclaimer. Insurer cannot simply sit quetly and later disclaim coverage months or year later. Or yet one better at the same time the file their defective DJs.
While this decision does not reach the ultimate conclusion that Unitrin is wrong as a matter of law, this decision does follow and track the language of Unitrin. Before a carrier can rely on the illogical and absurd protections afforded the carrier in Unitrin, it must meet a primary hurdle and establish when it received Providers bills and when it issued its EUO or IME notices. Because in Unitrin the Court did say that despite the untimely or no denial, carrier was successful in establishing its disclaimer of coverage was because it issued tinely and proper IME notices. Thus, before a carrier gets to abscond with the insurance premiums it has collceted and reneged on the coverage it was obligated to provide, it has to establish that it issued its initial IME or EUO notice within 15 business days of receipt of providers NF-3 or NF-2 and must establish that it issued a follow up IME or EUO notice if there was a no show or a mutual rescheduling with in 10 days of that date. Otherwise the carrier gets to say good bye to Unitrin protections.
It’s perfectly logical, even under Unitrin. The requests for the IME must be timely in order to trigger the provisions. A no-show is not a violation of a condition precedent if the insurer didn’t properly trigger that condition in the first place.
Proof of mailing and No-Show were in there. Also, case is inconsistent with prior Appellate Term cases with same exact fact patterns
Why is the receipt of these Plaintiff’s bills relevant to whether the request was timely? The reg says the insurer can require an EIP submit to an IME “when, and as often as, the Company may reasonably
require.”
Receipt of the bills is very relevant, because under the no-fault law, the insurer must pay or deny a claim within 30 days. That is the essence of no-fault. If you have a problem with that, address any changes to the legislature.
Except First Department controlling authority says you DON’T need to deny within 30 days for an IME no-show. So when the claim is received is not relevant because the Regulation says an IME can be requested, essentially, at any time. Not to mention the failure to appear at an IME is a defense against all claims retroactive to date of loss, not just the specific claim at issue. And so maybe it’s not “timely” with respect to your bills, but “timely” with respect to a different bill.
The Unitrin decision lacks looking at the provider’s bills as a starting point as to what to do upon receipt of an NF-3. This case at least FINALLY realizes that the carrier has an obligation, under the regs to do something within 15 business days or within 30 days, if verification not requested. Unitrin was decided in a vacuum without ever considering what the carrier did upon receipt of the NF-3. Which is why Unitrin doesn’t, never and will never make any logical sense.
“This is incongruous to [the] underpinniings of Unitrin”
What the [] you saying here.
Guys this not real law. It’s no fault.
Receipt of the bills is irrelevant. What if the IME was requested prior to receipt of any claims and simply upon receipt of the NF-2 or other notice of claim by the EIP? This would make it a pure request as a condition precedent to the policy. Stop thinking in a vacuum, people.
Stefan B, a condition precedent is triggered the minute a policy of insurance is purchased and the insured accepts those terms. Pure contract law. We give you insurance, you agree to these terms. Nuff said. Time to stop thinking as a “plaintiff” or “defendant” and think like a lawyer.
Just wondering, does the carrier ever return the premium once the policy is cancelled back to its inception? Wild guess .. no.
Yes, I would agree that the policy conditions are triggered the moment the policy is purchased … but so are the carrier’s obligations. The carrier has an obligation to provide proper notice of the IME, etc.. Policy conditions and insurer obligations are intertwined.
“We give you insurance, you agree to the terms” – give me a break! I pay my premium, the carrier has to also fulfill its obligations. That’s also contract law.
Unitrin was and will always be bad Law. Of course 1st dept ignorance as usual. Saved the insurance companies a ton of money. Nuff said.
Kurt: if you pay a premium and we give you a policy, that means that both parties intend to fulfill obligations. The insurer is ready willing and able to provide insurance. And does. But the insured’s obligations don’t end upon payment of the premium, there are continuing obligations on both ends. SO why would the insurer return the premium? It’s like a lease. You lease a car. you get a car. you pay the premium. You then default on payments. Car must be returned. Do you get back all the money you did pay so far for leasing the car? Nope.
I appreciate your point bug guy, hope I didnt come across snarky.
Why would the insurance company return the premium? Cause voiding a policy ab initio means that there is no coverage.
So, I get to lease the car but I cant drive it? I would want my money back.
I think Jerry Seinfeld said it best
Jerry: I don’t understand. Do you have my reservation?
Rental Car Agent: We have your reservation, we just ran out of cars.
Jerry: But the reservation keeps the car here. That’s why you have the reservation.
Rental Car Agent: I think I know why we have reservations.
Jerry: I don’t think you do. You see, you know how to *take* the reservation, you just don’t know how to *hold* the reservation. And that’s really the most important part of the reservation: the holding. Anybody can just take them.
Rental Car Agent: Would you like to purchase the renter’s insurance?
Jerry: Yeah, you better give me the insurance because I’m going to beat the HELL out of this thing.