Problems in the Progressive affidavits (again)

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.

The burden of proving proper mailing falls squarely on the insurance carrier seeking to enforce an EUO no-show defense. This requirement serves a fundamental fairness principle: before penalizing a party for non-compliance, the requesting party must establish that proper notice was actually provided. In the context of EUO scheduling, this means proving not only that letters were generated and processed, but that they were correctly addressed to the appropriate party and properly deposited in the mail.

Many insurance carriers rely on standardized form affidavits describing their general office practices and procedures for mailing correspondence. While such affidavits can establish a prima facie case when properly drafted, they must contain sufficient detail about quality control measures and verification procedures. Generic or conclusory statements about mailing practices, without specific information about how errors are prevented and proper addressing is ensured, will not satisfy the carrier’s burden of proof.

Case Background

Progressive Casualty Insurance Company sought to enforce an EUO no-show defense against Metro Psychological Services, P.C., a medical provider that allegedly failed to appear for scheduled examinations. To establish this defense, Progressive needed to prove that it had properly mailed EUO scheduling letters to the defendant. The carrier relied on an affirmation from its counsel describing the office’s general practice and procedure for preparing and mailing EUO letters.

The defendant challenged the sufficiency of this proof, arguing that Progressive’s affidavit contained only conclusory allegations that failed to establish adequate safeguards ensuring proper addressing and mailing. The case presented the Second Department with an opportunity to clarify the specific requirements for proving proper mailing in the context of EUO scheduling letters, particularly regarding what level of detail about office procedures is necessary to meet the carrier’s prima facie burden.

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.

Legal Significance

The Second Department’s decision in this case establishes important precedent regarding the specificity required in affidavits proving proper mailing. The court distinguished between adequate practice-and-procedure affidavits that describe concrete quality control measures and inadequate affidavits containing only conclusory allegations. This distinction protects defendants from being penalized for non-compliance with notices they may never have received due to carrier mailing errors.

The ruling’s emphasis on proving that mailing procedures were “designed to ensure that the EUO letters were addressed to the proper party” highlights a critical vulnerability in mass-produced correspondence systems. Insurance carriers processing hundreds or thousands of EUO scheduling letters cannot simply describe their general mailing procedures - they must specifically explain how their systems prevent addressing errors. This requirement acknowledges that even efficient mailing systems can fail at the addressing stage, sending correspondence to incorrect parties or outdated addresses.

This decision also reflects broader principles about burden allocation in litigation. When an insurance carrier seeks to rely on a defendant’s failure to comply with a demand, the carrier bears the burden of proving that the demand was properly communicated. Shifting this burden to defendants to prove non-receipt would create an impossible evidentiary challenge, as proving a negative is inherently difficult.

Practical Implications

For insurance carriers, this decision necessitates a thorough review of standard EUO scheduling affidavits. Carriers must ensure their affidavits specifically describe quality control measures for proper addressing, not just general mailing procedures. This might include explaining how address information is verified against current records, how letters are matched to specific files, and what safeguards prevent mailing to incorrect addresses.

The ruling creates significant practical challenges for carriers relying on EUO no-show defenses. Without adequate proof of proper mailing, carriers cannot enforce these defenses even when defendants genuinely failed to appear. Combined with other procedural requirements and the subsequent denial issues referenced in Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., this case illustrates how procedural defects can completely undermine otherwise valid coverage defenses, potentially exposing carriers to liability for claims they should be able to deny.

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.

Related Articles

• Another procedural faux pause
• It was NOT mailed
• Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?