J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 26424 (App. Term 2d Dept. 2016)
(1) “Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration”
(2) “Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters”
(3) “Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO.”
When do the malpractice insurance carriers get called? This is not going to be a “U” or “A” citation, so names will appear on this order in the report. Yikes.
3 Responses
Second appellate determination in last couple of months finding IME notices defective pursuant to 11 NYCRR 65-3.5(e).
Plaintiffs’ counsel should be checking the language carefully because one or more major insurers have taken liberties.
The level of carelessness and the abysmal state of law this firm has made really gets to me.
In the words of Dan Aykroyd – JT you ignorant $lut. I guess what the court and you are saying is any bargain basement EIP can get away with making claims against carriers. Plus while on my crusade my meter is running Any reading of the regulations shows that the carrier can schedule IME’s/EUO’s anywhere, anytime and through whatever means I want. I once scheduled an EUO of a provider using only my mind. No one complained.