Key Takeaway
New York appellate court decisions clarify evidence requirements for proving IME and EUO no-shows in no-fault insurance disputes through sworn affidavits.
Proving No-Shows: Court Standards for IME and EUO Non-Appearance
In New York no-fault insurance law, insurance companies frequently schedule Independent Medical Examinations (IMEs) and Examinations Under Oath (EUOs) to investigate claims. When claimants fail to appear, insurers must provide proper documentation to substantiate these no-shows in court proceedings.
Two recent First Department decisions demonstrate the evidentiary standards courts require when insurance companies claim that assignors failed to appear for scheduled examinations. These cases illustrate how proper documentation and sworn testimony can successfully establish non-appearance, which is crucial for insurers defending against claims where EUO objections may be considered futile or when discovery rights are at stake.
The decisions emphasize that competent evidence must include sworn affidavits from individuals with personal knowledge of the scheduling process and office policies, rather than mere assertions of non-appearance.
Jason Tenenbaum’s Analysis:
Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co., 2016 NY Slip Op 50906(U)(App. Term 1st Dept. 2016)
“Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME”
Metro 8 Med. Equip., Inc. v Esurance Ins. Co, 2016 NY Slip Op 50904(U)(App. Term 1st Dept. 2016)
Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (sic)“
Key Takeaway
Insurance companies can successfully prove IME and EUO no-shows by submitting sworn affidavits from individuals with personal knowledge of the scheduling process and established office policies. The courts require detailed testimony that demonstrates the affiants’ direct involvement and understanding of procedures when assignors fail to appear for scheduled examinations.
