Key Takeaway
Court rules that law firm partner's affirmation lacks personal knowledge to prove EUO no-show, highlighting burden of proof requirements in no-fault insurance cases.
No-fault insurance carriers frequently schedule examinations under oath (EUOs) as part of their investigation process when reviewing claims. When a claimant fails to appear for a scheduled EUO, the insurance company must prove this non-appearance to successfully defend against the claim. However, as this recent Appellate Term decision demonstrates, not just any proof will suffice—the evidence must come from someone with actual personal knowledge of the events.
The burden of proof in EUO no-show cases requires more than just an attorney’s say-so. Insurance companies cannot rely on secondhand information or assumptions when attempting to establish that a claimant failed to appear for their scheduled examination. This principle is particularly important in New York No-Fault Insurance Law, where procedural requirements must be strictly followed.
The court’s ruling reinforces that personal knowledge requirements cannot be circumvented through legal technicalities, even when EUO objections may seem futile to the claimant.
Jason Tenenbaum’s Analysis:
Mind & Body Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50918(U)(App. Term 2d Dept. 2017)
“As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question”
Interestingly: “no brief filed.” And, $30 in costs (the maximum the court can award)
Key Takeaway
This decision emphasizes that insurance companies cannot rely on their attorneys’ affirmations alone to prove EUO non-appearances. The person providing the proof must have direct, personal knowledge of the failed appointment. When discovery is waived due to improper objections, cases like this show that procedural missteps can still doom an insurance company’s defense, regardless of what actually occurred.
