Appellate Term (again) reverses course on Unitrin

The Unitrin doctrine represents one of the most controversial developments in New York no-fault litigation, fundamentally altering the consequences of IME no-shows. Under traditional insurance law principles, when insureds fail to appear for scheduled Independent Medical Examinations, carriers can deny pending claims prospectively from the no-show date forward. However, Unitrin Advantage Ins. Co. v Bayshore Physical Therapy established that IME no-shows justify retroactive denial of all claims back to the accident date, even claims previously denied on different grounds. This First Department decision applies Unitrin principles, demonstrating how appellate courts continue wrestling with the doctrine’s scope and application.

The case law evolution surrounding IME no-show consequences reveals fundamental tensions in no-fault insurance policy. Cooperation clauses requiring insureds to attend IMEs serve legitimate purposes: they enable carriers to evaluate injury severity, assess causation, and detect fraud. When insureds breach these obligations, insurers deserve meaningful remedies. However, retroactive denial of all claims—including those predating the IME request or previously denied for other reasons—raises questions about proportionality and whether the punishment fits the breach. The Appellate Term’s continued application of Unitrin suggests judicial acceptance of harsh consequences for IME no-shows, prioritizing carrier enforcement mechanisms over provider payment expectations.

Case Background

21st Century Acupuncture, P.C. submitted no-fault claims to Allstate Insurance Company for acupuncture services provided to an accident victim. Allstate initially denied certain claims on grounds unrelated to medical necessity, then scheduled the assignor for an Independent Medical Examination with an acupuncturist to evaluate remaining claims. When the assignor failed to appear for the IME, Allstate issued denials of all claims retroactive to the accident date, including claims it had previously denied on different grounds and claims that predated the IME scheduling. 21st Century Acupuncture filed suit seeking payment, and Allstate moved for summary judgment based on the IME no-show. The provider argued that Allstate could not deny claims it had already rejected for other reasons and that retroactive denial was improper absent proof that the assignor received and deliberately ignored the IME scheduling notices. The Civil Court granted Allstate’s motion, and 21st Century appealed.

Jason Tenenbaum’s Analysis

21st Century Acupuncture, P.C. v Allstate Ins. Co., 2015 NY Slip Op 50445(U)(App. Term 1st Dept. 2015)

When does Taylor not get reversed on application of Unitrin?

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 ; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 ). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturists and an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 , lv denied 17 NY3d 705 ; see also American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 ). Accordingly, when the assignor failed to appear for the requested acupuncture IME, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).”

Legal Significance

This Appellate Term decision reaffirms and extends Unitrin’s harsh consequences for IME no-shows, establishing several key principles. First, insurers can deny all claims retroactively to the accident date when assignors fail to appear for IMEs, regardless of whether specific denials were timely under the 30-day statutory timeframe. This principle effectively suspends temporal requirements for claim denials when cooperation breaches occur, recognizing that carrier delays in issuing denials may result from ongoing attempts to obtain compliance rather than administrative neglect.

Second, insurers can retroactively deny even claims they previously rejected on other grounds. This aspect of Unitrin proves particularly controversial because it allows carriers to substitute IME no-show defenses for earlier denials that may have been defective or subject to challenge. Providers who received untimely denials or denials lacking required specificity find their procedural protections eviscerated if assignors subsequently fail to attend IMEs. The doctrine essentially permits insurers to cure prior denial defects through unrelated assignor misconduct.

Third, the decision clarifies evidentiary standards for establishing IME no-shows. Carriers must submit affidavits from examining physicians and IME scheduling coordinators attesting to assignor non-appearance and demonstrating personal knowledge of office policies for documenting no-shows. Generic or conclusory statements insufficient, but detailed testimony regarding how facilities track attendance and document absences satisfies the prima facie burden. Once carriers establish their case, providers bear the burden of raising triable issues regarding whether assignors appeared, whether notices were properly mailed, or whether scheduling was reasonable.

The decision’s citation to American Trust cases demonstrates the First Department Appellate Term’s consistent application of strict IME no-show standards favoring insurers. This line of authority creates strong incentives for provider compliance with IME requests and essentially eliminates provider arguments that retroactive denials are disproportionate or unfair. The only remaining defenses involve challenging notice adequacy, appointment reasonableness, or proving assignor attendance—all factually intensive inquiries requiring substantial proof.

Practical Implications for Providers and Insurers

For healthcare providers pursuing no-fault claims, this decision underscores the catastrophic consequences of assignor IME no-shows. Providers should implement comprehensive systems for ensuring assignor compliance with IME scheduling, including: maintaining current contact information for all assignors; immediately notifying assignors upon receiving IME scheduling letters; confirming assignor intent to attend; providing transportation assistance if necessary; and following up after scheduled examination dates to confirm attendance. When assignors indicate inability to attend, providers should immediately contact insurers to request rescheduling rather than allowing defaults to occur.

Providers should also recognize that once IME no-shows occur, challenging carrier denials becomes extremely difficult. Providers cannot rely on defects in prior denials or arguments about retroactive application; they must affirmatively establish that assignors actually attended examinations, that notices were defective, or that scheduling was unreasonable. This requires aggressive discovery into carrier mailing procedures, IME facility attendance records, and assignor testimony regarding whether they received notices and why they failed to appear. Without compelling evidence on these points, summary judgment dismissal becomes virtually inevitable.

For insurance carriers, this decision provides powerful tools for eliminating claims when assignors breach cooperation obligations. Carriers should develop standardized procedures for documenting IME no-shows, including: obtaining affidavits from examining physicians confirming non-appearance; securing testimony from IME scheduling vendors regarding their attendance verification protocols; and maintaining complete records of IME notice mailings including dates, addresses, and mailing methods. When issuing retroactive denials following IME no-shows, carriers should explicitly invoke Unitrin and cite this decision to foreclose provider arguments that retroactive denials are improper or that prior denial defects prevent reliance on no-show defenses.

However, carriers must ensure their IME scheduling practices withstand scrutiny. Courts require reasonable scheduling—examinations must occur at convenient times and locations, provide adequate advance notice, and accommodate documented assignor limitations. Carriers whose scheduling practices appear designed to trap assignors into defaults rather than genuinely evaluate medical necessity may face judicial skepticism even under Unitrin’s carrier-friendly framework.

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