EUO no-show from the First Department – lucky win by Mapfre?

“Plaintiff made a prima facie showing of its entitlement to summary judgment dismissing Active Care’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for EUOs to Manoo and that Manoo failed to appear at his initial and follow-up EUOs. The record establishes that plaintiff requested Manoo’s initial EUO by letter dated February 3, 2012. Although Active Care’s NF-3 form is dated February 7, 2012, plaintiff was entitled to request the EUO prior to its receipt thereof…..  The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of a claim form…

Once Active Care presented its claim dated February 7, 2012, plaintiff was required to comply with the follow-up provisions of 11 NYCRR 65-3.6(b)…Plaintiff established that it fulfilled its obligation under § 65-3.6(b) by rescheduling Manoo’s EUOs within 10 days of his failure to appear at each scheduled exam (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136(A) [App Term, 2d Dept 2012]). The second EUO scheduling letter was sent on February 23, 2012, which was just seven days after the February 16, 2012 nonappearance. The third EUO scheduling letter was sent on March 16, 2012, which was just seven days after the March 9, 2012 nonappearance.”

What is interesting here is that the Court I believe answered the question I thought was left open in the last EUO appeal from this Plaintiff’s law firm.  That is, remember where there were three EUO attempts (this was found in the record), the first two were appropriately scheduled and third EUO was scheduled more than 10-days after the second EUO?   Encompass Ins. Co. v. Rockaway Family Med. Care, P.C., 137 A.D.3d 582, 26 N.Y.S.3d 697 (N.Y. App. Div. 2016)

The Court now answered that the 10-day requirement applies to all follow-up EUO attempts.  Thus, Encompass (if decided today) would have been a loser.

What is also interesting is the Court again is distinguishing pre-claim and post-claim EUO protocols “after Manoo failed to appear at that EUO, and Active Care submitted its verification, plaintiff twice rescheduled the EUO in conformity with the requirements of 11 NYCRR 65-3.6(b)”  I do not understand the relevance of Active Care’s NF-3 forms as it relates to allowing the Assignor two attempts (and three here) to appear for an EUO.   This would be a red herring.

Finally, I think the majority mischaracterizes Justice Acosta’s dissent.  I read this dissent as saying that counsel for Mapfre failed to include in their moving papers an affidavit as to when Active Care’s NF-3 was received; and therefore, the motion was properly denied without regard to the lack of sufficiency of Plaintiff’s papers.  And I would say at this point, counsel for insurance carriers should know the contours of Unitrin.

It looks like Justice Acosta did not want to reward sloppy papers from an insurance carrier.  Legal papers before a Supreme Court should have more effort expended on them than that found in the value meal at the McDonalds drive-through.

“[p]laintiff failed to tender proof that it received Active Care’s verification. Thus, plaintiff did not demonstrate that it requested Manoo’s EUO subsequent to such receipt within the time prescribed in the Insurance Department Regulations (11 NYCRR) § 65-3.5[b] [“subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms”] [emphasis added]). Plaintiff’s argument that it submitted evidence showing that its request for Manoo’s EUO was made prior to the date of Active Care’s claim is unavailing in the absence of proof of when the claim was received”

A lucky win by Mapfre