What is "other appropriate means"?

New York no-fault insurance litigation frequently involves disputes over whether claimants or their assignees properly appeared for scheduled examinations under oath. When insurance carriers schedule EUOs and allege non-appearance, they must establish that failure through admissible evidence meeting the summary judgment standard. The evidentiary requirements for proving EUO no-shows have evolved through appellate decisions creating layers of complexity that continue to generate litigation.

The landmark decision in Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Company established that EUO no-show defenses require proof through personal knowledge or other appropriate means. This formulation created a two-pronged standard, with the first prong—personal knowledge—relatively straightforward in application. An attorney who personally conducted or attempted to conduct an EUO possesses personal knowledge of the claimant’s failure to appear. Similarly, office staff members who witnessed the scheduled examination time pass without the claimant’s arrival can provide personal knowledge testimony.

The second prong—“other appropriate means”—has proven far more elusive. Courts have referenced this alternative method of proof without clearly defining its parameters or providing concrete examples of what evidence would satisfy the standard. This ambiguity creates significant uncertainty for both insurers seeking to establish no-show defenses and providers challenging such defenses. The undefined nature of “other appropriate means” leaves parties guessing about what evidence will suffice when personal knowledge testimony is unavailable.

Case Background

Compas Med., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51568(U)(App. Term 2d Dept. 2015)

In Compas Medical, P.C. v. Travelers Insurance Company, the insurer scheduled two examinations under oath for the assignor. When the assignor allegedly failed to appear, Travelers moved for summary judgment dismissing the complaint based on the EUO no-show defense. The insurer submitted an affidavit from the attorney assigned to conduct the EUOs. However, the attorney’s affidavit did not establish that he personally witnessed or attempted to conduct the examinations. Instead, the affidavit appeared to rely on office records or information received from other individuals regarding the assignor’s non-appearance.

The trial court granted Travelers’ motion for summary judgment. On appeal, Compas Medical challenged the sufficiency of the insurer’s proof, arguing that the attorney lacked personal knowledge of the no-shows and failed to establish non-appearance through any other appropriate means. The Appellate Term Second Department reviewed whether the submitted affidavit satisfied either the personal knowledge prong or the “other appropriate means” prong of the Stephen Fogel standard.

Understanding “Other Appropriate Means” in EUO No-Show Cases

In New York no-fault insurance litigation, proving that a plaintiff failed to appear for an Examination Under Oath (EUO) is crucial for insurance companies seeking to deny claims. While courts have established that such proof can be demonstrated through personal knowledge or “other appropriate means,” the latter standard remains frustratingly vague, creating uncertainty for both insurers and medical providers.

This ambiguity is particularly significant given the frequency of EUO disputes in no-fault cases, where insurance companies routinely schedule examinations as part of their claims investigation process. When providers fail to appear, insurers often seek summary judgment to dismiss the underlying lawsuit, but the burden of proof can be more complex than it initially appears.

Jason Tenenbaum’s Analysis

Compas Med., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51568(U)(App. Term 2d Dept. 2015)

“While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel failed to demonstrate, by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146, 2012 NY Slip Op 51628 ), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint”

Proof of no show can be proved by (1) Personal knowledge; and (2) Other appropriate means. Now the question is what is “other appropriate means”? I cannot wait to see how that plays out…

Legal Significance

The Appellate Term’s decision in Compas Medical highlights a critical gap in no-fault jurisprudence regarding evidentiary standards for EUO no-show defenses. While the court correctly applied the two-pronged Stephen Fogel test, its analysis revealed the inadequacy of current precedent in defining “other appropriate means.” The citation to Quality Psychological Services, P.C. v. Interboro Mutual Indemnity Insurance Company provides little guidance, as that decision similarly references the “other appropriate means” standard without explaining what evidence would satisfy it.

This evidentiary ambiguity creates asymmetric risks in summary judgment practice. Insurance carriers must guess at what proof will suffice when the attorney assigned to conduct EUOs lacks personal knowledge of non-appearance. Should they submit affidavits from reception staff who monitored the waiting area? Would appointment logs or office scheduling systems constitute appropriate means? Could surveillance footage or building sign-in records establish non-appearance? Without clear judicial guidance, insurers face uncertainty about whether their evidentiary submissions will survive summary judgment challenges.

The decision also implicates broader questions about the burden of proof in no-fault litigation. If personal knowledge testimony is unavailable—perhaps because the assigned attorney is no longer with the firm or has no specific recollection of the scheduled EUO date—what alternative evidence should courts accept? The “other appropriate means” language suggests flexibility, but without parameters, this flexibility becomes unpredictability.

Practical Implications

For insurance carriers, Compas Medical underscores the importance of establishing comprehensive procedures for documenting EUO scheduling and attendance. Insurers should ensure that attorneys assigned to conduct EUOs maintain contemporaneous records of scheduled examination dates and times, along with detailed notes about whether claimants appeared. When possible, attorneys should personally observe the scheduled examination time to establish personal knowledge of non-appearance.

When personal knowledge testimony is unavailable, insurers must develop alternative evidentiary strategies that might satisfy the “other appropriate means” standard. Potential approaches include maintaining video surveillance of examination locations, implementing electronic check-in systems that timestamp arrivals, or having reception staff prepare contemporaneous attendance logs. However, without clear judicial guidance, these measures involve some degree of speculation about what evidence courts will accept.

For healthcare providers defending against EUO no-show allegations, Compas Medical provides a framework for challenging insurer proof. Providers should carefully examine affidavits supporting no-show defenses to determine whether affiants possess personal knowledge or whether the evidence relies on inadmissible hearsay. When insurers attempt to establish no-shows through “other appropriate means,” providers should demand clear explanations of what those means entail and why they satisfy evidentiary requirements.

Key Takeaway

The Compas Medical decision highlights a critical gap in no-fault litigation practice. While courts recognize that EUO no-shows can be proven through methods beyond personal knowledge, the undefined “other appropriate means” standard leaves practitioners guessing about what evidence will satisfy this requirement, potentially affecting the outcome of summary judgment motions.

Similar evidentiary challenges arise in IME no-show situations, where proper notice and documentation become essential elements of proof. As courts continue to refine these standards, the legal landscape for no-fault insurance disputes continues to evolve.

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