Parisien v Citiwide Auto Leasing, 2017 NY Slip Op 50684(U)(App. Term 2d Dept. 2017)
“As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.
The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person “shall submit” to IMEs “when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1), as an assignor’s appearance for a duly scheduled IME is a condition precedent to the insurer’s liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff’s objections to the reasonableness of the requests should not have been heard”
It is great when the same issue keeps popping it, Plaintiff expects a different result and, surprise, nothing changes.
2 Responses
In particular, the second IME appointment (which had been cancelled by the IME doctor) was scheduled to be held at the facially unreasonable time of 8:00 p.m., and the third appointment was scheduled to be held at the facially unreasonable time of 8:30 p.m. Defendant’s cross-motion contained no explanation of why such unusual times, well beyond normal business hours, were used.
The Mandatory Personal Injury Protection Endorsement provides that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company when, and as often as, the Company may reasonably require.” 11 NYCRR § 65-1.1(d) (emphasis added). The Regulations further provide that “[a]ll examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant.” 11 NYCRR § 65-3.5(e) (emphasis added). It is further noted that the Regulations direct insurers to, inter alia, “[a]ssist the applicant in the processing of a claim [and] not treat the applicant as an adversary.” 11 NYCRR § 65-3.2(b).
It must be noted that, contrary to this Court’s implicit holding, an IME request is not presumptively reasonable. Instead, as the Insurance Department specifically opined in an opinion letter dated February 11, 2003, “[w]hen an eligible injured person fails to attend a scheduled examination, it is a question of fact, to be determined under all the specific circumstances of each case, whether the insurer’s request was reasonable, and as a corollary, that the injured person’s failure to attend was unreasonable, in order to ultimately determine whether the policy condition was met.” Ops Gen Counsel NY Ins. Dept. No. 03-02-12 (Feb. 2003) (emphasis added). See also Ops Gen Counsel NY Ins. Dept. No. 05-02-21 (Feb. 2005).
The Insurance Department did not opine that such a determination can only be made if, as a prerequisite, a claimant objects to the reasonableness of an IME request.
The Department also held in 2000 that the definition of a prima facie case is up to the individual fact finder. Do you really want that to be the law? Judicial imprimatur of DFS opinion letters run both ways.