Key Takeaway
New York court finds insurance company failed to prove EUO no-show due to inadequate attorney affirmation lacking personal knowledge and proper procedural documentation.
Insurance Company Fails to Prove EUO No-Show in Medical Provider Case
In New York no-fault insurance litigation, insurance companies routinely schedule Examinations Under Oath (EUOs) to investigate claims and combat fraud. When a claimant fails to appear for a scheduled EUO, insurers typically use this as grounds to deny coverage. However, as this recent Appellate Term decision demonstrates, insurance companies must properly document and prove that a no-show actually occurred.
The burden of proof requires more than simply stating that standard office procedures were followed. Courts demand specific evidence of personal knowledge and proper documentation when EUO objections may be futile but the insurer still must prove its case. This case highlights common pitfalls that even experienced insurance defense firms encounter when attempting to substantiate EUO non-appearances.
Understanding these evidentiary requirements is crucial for both medical providers navigating New York No-Fault Insurance Law disputes and attorneys handling no-fault cases.
Jason Tenenbaum’s Analysis:
Vladenn Med. Supply, Corp. v American Commerce Ins. Co., 2016 NY Slip Op 50775(U)(App. Term 1st Dept. 2016)
“In this regard, we note that while the affirmation of defendant’s attorney described the office procedures for contacting a claimant 48 hours prior to the scheduled EUO to confirm the appearance, it failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs on the scheduled dates (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 ). Nor did the affiant state that he was the attorney assigned to conduct the EUOs,”
I have never seen a lawfirm have so many issues proving no-shows of the EUOs THEY scheduled. It is somewhere between bizarre, embarrassing and perhaps a world where fact is scarier than faction.
Key Takeaway
This decision underscores that insurance companies cannot rely on generic attorney affirmations describing standard office procedures to prove EUO no-shows. Courts require specific personal knowledge and proper documentation. Similar issues have plagued other major insurers, as seen in Allstate EUO no-show cases, suggesting systemic problems in how some firms handle EUO documentation and proof requirements.
