IME no show trial defense – reversed

Understanding IME No-Show Defenses in No-Fault Insurance Cases

Independent Medical Examinations (IMEs) serve as a crucial tool for insurance companies to verify claims under New York No-Fault Insurance Law. When patients fail to appear for scheduled IMEs, insurers often assert this as a defense to deny coverage, arguing the claimant failed to comply with policy conditions. However, procedural complications can arise when courts make premature determinations about the viability of such defenses.

The Progressive Orthopedics case demonstrates an important principle: a trial court’s denial of summary judgment doesn’t automatically eliminate an insurer’s ability to present that same defense at trial. This distinction becomes particularly significant in IME no-show cases, where the evidence supporting the defense may require thorough examination beyond what’s possible in summary judgment proceedings.

Jason Tenenbaum’s Analysis:

Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)

(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”

(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing

(3) Decision reversed

Legal Significance

The Appellate Term’s decision in Progressive Orthopedics clarifies a fundamental principle of New York civil procedure: the denial of a motion for summary judgment represents only a determination that triable issues of fact exist, not a final adjudication on the merits. This distinction carries significant weight in no-fault insurance litigation, where insurers frequently raise IME no-show defenses that may not be suitable for summary judgment disposition due to factual disputes about proper scheduling, mailing, or the claimant’s reasons for non-appearance.

The trial court’s error stemmed from conflating the summary judgment standard with the trial standard of proof. On summary judgment, an insurer must demonstrate entitlement to judgment as a matter of law by establishing, prima facie, that the IME was properly scheduled and the claimant failed to appear without justification. When the plaintiff raises a factual dispute—such as non-receipt of the scheduling letter or a reasonable excuse for non-appearance—summary judgment must be denied. However, this denial does not mean the insurer loses the defense entirely; it simply means the issue must be resolved through trial where witness credibility and conflicting evidence can be properly evaluated.

This ruling aligns with the broader principle established in Vitality Chiropractic, P.C., which emphasized that denied summary judgment motions do not establish anything about the ultimate merits of a case. Courts must evaluate trial evidence de novo without being bound by prior determinations made on incomplete records during summary judgment proceedings.

Practical Implications

For insurance companies defending no-fault claims, this decision provides crucial strategic clarity. Even when summary judgment is denied on an IME no-show defense, insurers should continue to develop that defense for trial. This includes preserving evidence of proper mailing procedures, maintaining detailed records of IME scheduling practices, and preparing witnesses who can testify about office procedures and the specific circumstances surrounding the missed examination.

The decision also underscores the importance of clear trial advocacy. Defense counsel must explicitly object when trial courts attempt to preclude defenses based solely on denied summary judgment motions. Failure to make a timely objection could waive appellate review of this issue, potentially forfeiting an otherwise viable defense.

For healthcare providers pursuing no-fault claims, the ruling serves as a reminder that defeating summary judgment does not end the litigation. Providers must be prepared to address IME no-show defenses at trial, which may require the testimony of assignors who missed examinations and documentary evidence supporting any claimed excuse for non-appearance. When assignors have legitimate reasons for missing IMEs—such as non-receipt of notices, scheduling conflicts, medical emergencies, or transportation issues—providers should document these circumstances contemporaneously and preserve evidence to present at trial.

Key Takeaway

Trial courts cannot prevent insurance companies from presenting IME no-show defenses at trial simply because a previous summary judgment motion on the same issue was denied. The Appellate Term’s reversal reinforces that denied summary judgment motions don’t establish the merits of underlying defenses, ensuring parties retain their right to present evidence at trial.

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