Key Takeaway
Court ruling highlights insurance companies must prove they actually appeared at scheduled EUOs when claiming assignor failed to show up for examination.
Proving a “no-show” at an Examination Under Oath (EUO) requires more than just claiming the person didn’t appear. Insurance companies must substantiate their presence at the scheduled examination location with proper documentation and evidence. This case demonstrates the importance of meeting specific evidentiary requirements when seeking to deny claims based on alleged EUO non-compliance.
In New York No-Fault Insurance Law cases, EUOs are critical tools for insurance companies to investigate claims. However, when an assignor allegedly fails to appear, the burden falls on the insurer to prove both that they were present and that the examination was properly noticed. This case illustrates common pitfalls in establishing such proof, particularly when EUO objections may be futile if procedural requirements aren’t met.
Court’s Findings on EUO Non-Appearance
The Appellate Term addressed a fundamental issue in EUO practice: what constitutes adequate proof of a claimant’s failure to appear for examination. The court’s analysis reveals critical gaps in how insurance companies often attempt to establish non-appearance.
Jason Tenenbaum’s Analysis:
Right Aid Med. Supply Corp. v Hartford Ins. Co., 2015 NY Slip Op 51236(U)(App. Term 2d Dept. 2015)
“However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on either of the dates of the scheduled EUOs at the office of the court reporting company to which plaintiff’s assignor was directed to go.”
The affidavit goes like this: “I was personally at ____________(address) on ___________date () at _________(time) and __________(name) was not there.” Put some other flowery language afterwards. But the language: “If the EUO went, I would have been the one that conducted it”… Why? I do not get
The second way is to set forth a practice and procedure with definitive statements explaining that someone was present (see above for information) and upon a review of the records, Assignor did not show up. 4518 foundation necessary.
The third way is to use EUO bust statements. Certification is optional.
Three Methods for Proving EUO Non-Appearance
Understanding these different approaches is crucial for practitioners handling no-fault cases. Unlike situations involving Allstate EUO no-show cases where documentation may be more standardized, this case highlights the variability in how insurers attempt to establish their burden of proof.
Key Takeaway: Insurance companies cannot simply assert that a claimant failed to appear for an EUO without providing concrete evidence of their own presence at the examination location. The court requires unequivocal demonstration that defense counsel was actually present and available to conduct the examination as scheduled.
