Key Takeaway
Progressive's flawed EUO scheduling affidavits fail to prove proper mailing, allowing medical providers to skip examinations and creating enforcement challenges.
Examination Under Oath (EUO) procedures are critical enforcement tools in New York No-Fault Insurance Law. When insurance carriers suspect fraud or need additional information from medical providers, they can compel attendance at these sworn examinations. However, the effectiveness of this tool depends entirely on proper procedural execution - particularly proving that EUO scheduling letters were correctly mailed to the right parties.
Progressive Casualty Insurance Company recently learned this lesson the hard way in a Second Department decision that highlights how seemingly minor procedural defects can completely undermine an insurer’s enforcement efforts. The case demonstrates why carriers using mass-produced form affidavits must ensure their systems account for all variables in the mailing process.
Jason Tenenbaum’s Analysis:
Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485 (2d Dept. 2016)
Mass production is great when your systems properly account for all variable. In this case, that was not done.
“As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs’ counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed”
It is amazing that a medical provider attorney can tell their client not to show up for the EUO since carrier’s counsel cannot prove that it mailed its scheduling letters. And then we have the denial issue which I think Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 made insurmountable to that carrier. smh.
Key Takeaway
This case illustrates why proper documentation of mailing procedures is essential for EUO enforcement. Progressive’s conclusory affidavit failed to establish adequate safeguards for proper addressing and mailing, allowing the medical provider to legitimately skip the examination. Similar procedural failures have been repeatedly problematic for carriers, making it crucial that insurers develop and document comprehensive mailing protocols that can withstand judicial scrutiny.
