Was the missed EUO really a miss?

Understanding EUO “No-Shows”: When a Miss Isn’t Really a Miss

In New York no-fault insurance litigation, insurers frequently deny claims based on alleged failures to appear at Examinations Under Oath (EUOs). However, determining whether an absence constitutes a true “no-show” requires careful examination of the circumstances. The recent Appellate Term decision in Excel Imaging, P.C. v Allstate Ins. Co. demonstrates that advance communication about scheduling conflicts can significantly impact how courts evaluate these situations.

This case highlights an important distinction in New York No-Fault Insurance Law: insurers cannot simply point to an empty chair at a scheduled EUO and claim automatic victory. Courts will examine the full record to determine whether the absence was truly unexcused. As we’ve seen in other EUO no-show cases, the devil is often in the details of pre-hearing communications.

The Excel Imaging decision creates important precedent regarding what constitutes an excused absence from an EUO. Insurance carriers regularly schedule these examinations to investigate claims, but when claimants or providers communicate legitimate reasons for inability to attend before the scheduled date, courts may refuse to characterize the absence as an unexcused “no-show” that justifies claim denial.

Case Background: Excel Imaging v. Allstate Insurance

Excel Imaging, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51896(U)(App. Term 2d Dept. 2015)

In Excel Imaging, the insurance carrier scheduled the plaintiff’s assignor (the injured party from whom the medical provider received an assignment of no-fault benefits) for EUOs on two separate dates: January 28, 2011 and February 24, 2011. The assignor failed to appear at either examination, and the insurer subsequently denied the provider’s claims based on these alleged no-shows.

The medical provider filed suit seeking payment for services rendered. The insurance carrier moved for summary judgment dismissing the complaint based on the assignor’s failure to appear for the scheduled EUOs. The carrier argued that the two no-shows entitled it to deny coverage as a matter of law.

However, the provider’s opposition papers revealed critical facts that the insurer’s motion papers had glossed over. The insurance company’s own correspondence, dated February 7, 2011, acknowledged that the plaintiff had requested an adjournment of the January 28, 2011 examination date. During oral argument, defense counsel conceded that this adjournment request had been made before the scheduled January 28 examination date, though counsel could not confirm whether the parties had mutually agreed to reschedule the examination.

This disclosure fundamentally altered the legal analysis. If the assignor had requested an adjournment before the scheduled examination date, the January 28 absence might not constitute an unexcused failure to appear. The Appellate Term needed to determine whether advance adjournment requests, even without mutual rescheduling agreements, could vitiate a no-show defense.

Jason Tenenbaum’s Analysis

(1) “Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date”

(2) “Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment.”

So an affidavit or proof of sickness, inability to attend (if communicated), etc., can be considered grounds to vitiate a no-show.

Legal Significance: The Importance of Pre-Examination Communications

The Excel Imaging decision establishes that courts will look beyond the mere fact of non-appearance to examine the circumstances surrounding the absence. This approach aligns with fundamental fairness principles that prevent insurers from treating all absences identically regardless of whether the claimant provided advance notice of scheduling conflicts or legitimate reasons for inability to attend.

New York’s no-fault insurance system operates under strict timelines and procedural requirements, but these requirements must be applied reasonably. When a claimant communicates scheduling conflicts before the examination date, this advance communication demonstrates good faith and distinguishes the situation from cases where claimants simply fail to appear without any prior contact. Courts recognize this distinction and refuse to reward insurers who deny claims based on absences that were communicated in advance.

The decision also creates practical guidance for evaluating EUO no-show defenses. Insurance carriers cannot rely solely on proof that examinations were scheduled and that claimants failed to appear. Carriers must also demonstrate that the absences were unexcused and that claimants failed to communicate legitimate reasons for their inability to attend. This evidentiary requirement ensures that only truly uncooperative claimants face claim denials based on EUO no-shows.

The ruling further suggests that various circumstances beyond mutual rescheduling agreements might excuse non-appearance. The court’s reference to “other reasons” why an assignor should not be considered to have failed to appear opens the door for consideration of medical emergencies, family crises, transportation problems, and other legitimate obstacles that may prevent attendance despite good-faith intentions to cooperate.

Practical Implications for Claimants and Insurance Carriers

Courts will look beyond surface-level “no-shows” to examine whether advance notice was provided and legitimate reasons existed for the absence. Even without mutual agreement to reschedule, documented illness, inability to attend, or pre-hearing adjournment requests can prevent an EUO absence from being characterized as an unexcused failure to appear. This underscores the importance of maintaining detailed records of all communications regarding EUO scheduling and objections.

For claimants and medical providers, this decision emphasizes the critical importance of communicating scheduling conflicts and legitimate reasons for inability to attend examinations. Rather than simply failing to appear, claimants should contact the insurance carrier before the scheduled examination date to request adjournments and explain why attendance is not possible. Such communications create a paper trail that may prevent characterization of the absence as an unexcused no-show.

Insurance carriers must carefully document all pre-examination communications with claimants. When claimants request adjournments or communicate scheduling conflicts, carriers should respond in writing to confirm receipt of these requests and to provide alternative examination dates. Carriers should also maintain complete records of these communications to support no-show defenses if litigation ensues. The Excel Imaging court’s reliance on the carrier’s own February 7 letter demonstrates how insurer correspondence can undermine no-show defenses.

The decision also suggests that insurance carriers should exercise flexibility when claimants request reasonable accommodation of scheduling conflicts. While insurers have legitimate interests in conducting timely examinations, refusing to accommodate reasonable adjournment requests may backfire if courts later determine that the refusal rendered the absence excusable. Carriers should balance their investigative needs against the practical realities that may prevent claimants from attending examinations on specific dates.

Key Takeaway

EUO absences are not automatically unexcused “no-shows” when claimants communicate scheduling conflicts or inability to attend before the examination date. Courts will examine the totality of circumstances, including advance communications, to determine whether absences should excuse performance. Medical providers and claimants should document all pre-examination communications with insurers, while carriers must demonstrate that absences were truly unexcused to support no-show defenses. This case reinforces that substantive fairness considerations temper the strict procedural requirements of New York’s no-fault insurance system.

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