EUO no-show substantiated again

Court Reinforces Standards for Proving EUO No-Shows

The Second Department’s decision in AVM Chiropractic, P.C. v 21st Century Ins. Co. provides another solid precedent for insurance carriers defending against claims where the insured failed to appear for an Examination Under Oath (EUO). This case is particularly significant because it demonstrates how courts continue to uphold established procedures for proving both proper notice and actual non-appearance.

EUOs are a critical component of New York No-Fault Insurance Law, allowing insurers to examine insureds under oath when investigating potentially fraudulent claims. When an insured fails to appear, carriers must follow specific procedures to substantiate the no-show and preserve their right to deny coverage. The standards established in cases like this one help clarify what evidence courts will accept as sufficient proof.

Under New York’s no-fault insurance regulations, insurers have the statutory right to conduct examinations under oath as part of their investigation into claims. This right is codified in 11 NYCRR 65-3.5, which permits carriers to request EUOs when they have reasonable grounds to believe fraud or material misrepresentation may be involved. However, this right comes with strict procedural requirements—insurers must provide proper notice, schedule the examination at a reasonable time and location, and maintain adequate documentation of the process.

The evidentiary burden falls squarely on the insurance carrier to prove both that proper notice was sent and that the insured actually failed to appear. Courts scrutinize these cases carefully because EUO no-shows form the basis for coverage denials that can leave injured parties without access to medical benefits. The balance between preventing fraud and protecting legitimate claimants makes the procedural requirements particularly important. When carriers successfully meet their burden, they establish a valid defense that can defeat even facially meritorious claims for first-party benefits.

Case Background

In AVM Chiropractic, the plaintiff healthcare provider sought no-fault benefits for services rendered to an assignor. The defendant insurance carrier denied the claim based on the assignor’s failure to appear for scheduled examinations under oath. The insurer moved for summary judgment, submitting proof of both proper mailing of the denial forms and documentation regarding the EUO no-shows.

The plaintiff challenged the sufficiency of the defendant’s proof on appeal, arguing that the carrier failed to establish either proper mailing of the denial forms or adequate proof that the assignor actually failed to appear for the scheduled EUOs. These arguments reflected common challenges in EUO no-show litigation, where providers frequently contest both the procedural adequacy of scheduling notices and the substantive proof of non-appearance.

The Appellate Term was required to evaluate whether the defendant’s submissions met the legal standards for establishing both elements of the defense. This evaluation turned on established precedent regarding mailing presumptions under CPLR 4518(a) and the evidentiary requirements for proving non-appearance at scheduled examinations. The court’s analysis provided important guidance on what documentation satisfies these requirements.

Jason Tenenbaum’s Analysis:

AVM Chiropractic, P.C. v 21st Century Ins. Co., 2016 NY Slip Op 51354(U)(App, Term 2d Dept. 2016)

“Contrary to plaintiff’s only arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134, 2014 NY Slip Op 50634 ).”

I like this case because it cites the Active Chiro case which discussed certified transcripts of no-show. That issue played out at the First Department in Liberty v. KO

Legal Significance

The Appellate Term’s decision carries significant weight because it synthesizes multiple strands of no-fault insurance jurisprudence. First, by citing St. Vincent’s Hospital v Government Employees Insurance Co., the court reaffirmed that standardized office mailing procedures, when properly documented through affidavit testimony, create a rebuttable presumption of proper mailing under CPLR 4518(a). This presumption is critical in no-fault litigation because it allows insurers to prove mailing without producing actual postal receipts for every piece of correspondence.

Second, and perhaps more importantly, the court’s citation to Active Chiropractic, P.C. v Praetorian Insurance Co. reinforces the evidentiary standard for proving non-appearance. The Active Chiropractic case specifically addressed whether certified transcripts from court reporters documenting the non-appearance are sufficient proof of an EUO no-show. The First Department later confronted this issue in Liberty Mutual v. KO, creating some uncertainty about what documentation suffices. This case confirms that the Second Department continues to accept certified transcripts as adequate proof.

The decision also illustrates the burden-shifting framework that governs no-fault summary judgment motions. Once the insurer establishes prima facie proof of proper notice and non-appearance, the burden shifts to the plaintiff to raise a triable issue of fact. Mere conclusory denials or unsubstantiated claims of non-receipt are insufficient to defeat summary judgment—the plaintiff must produce credible evidence creating a genuine factual dispute.

Practical Implications

For insurance carriers, this decision underscores the importance of maintaining meticulous documentation of EUO scheduling and attendance. Carriers should ensure that their mailing procedures are standardized, documented, and capable of supporting affidavit testimony. Additionally, retaining certified transcripts from court reporters documenting non-appearances provides critical evidence that courts will credit.

Healthcare providers and their attorneys must recognize that EUO no-show defenses are difficult to overcome once properly substantiated. Advising clients about the critical importance of EUO compliance is essential, as is timely challenging any deficiencies in scheduling notices. When carriers assert EUO no-show defenses, providers should carefully scrutinize whether the notice provided reasonable time and location, whether it was properly addressed, and whether the carrier’s proof of non-appearance meets evidentiary standards.

The case also highlights the strategic importance of the plaintiff’s burden on summary judgment. Simply arguing that the defendant’s proof is insufficient rarely succeeds—plaintiffs must affirmatively present evidence creating triable issues of fact. This might include affidavits explaining non-receipt of notices, proof of attempts to reschedule, or evidence of improper mailing addresses.

Key Takeaway

This decision reinforces that insurance carriers can successfully defend EUO no-show cases by following established procedures. The court’s citation to Active Chiropractic highlights the importance of certified transcripts in proving non-appearance, while also confirming that proper mailing procedures create sufficient presumptions for coverage denials. This aligns with other recent precedents like those discussed in Allstate EUO no-show cases.