What happened to those EUO letters? What happened to the IME letters? Where are those denials?

The Foundation of No-Fault Procedural Defenses: Proving Proper Mailing

In New York no-fault insurance litigation, insurance carriers frequently rely on procedural defenses such as EUO no-shows, IME non-appearances, and timely claim denials. However, these defenses rest on a critical foundation: the carrier must prove that it properly mailed the relevant notices, scheduling letters, or denial forms to the provider or assignor. Without establishing this predicate, the entire defense collapses.

The burden of proving mailing falls squarely on the insurance carrier asserting the defense. New York courts require more than bare assertions or boilerplate affidavits stating that documents were mailed. Instead, carriers must demonstrate through credible evidence that they maintained standard office practices and procedures designed to ensure proper addressing and mailing, and that these procedures were followed in the specific case at issue.

As demonstrated in a series of 2018 Appellate Term decisions involving various carriers, inadequate proof of mailing practices dooms otherwise potentially valid defenses. These cases collectively illustrate the exacting standards courts apply when evaluating affidavits offered to establish that EUO scheduling letters, IME notices, and denial forms were properly mailed according to regulatory requirements.

Case Background

The Appellate Term, Second Department, decided multiple cases in 2018 addressing similar evidentiary deficiencies in affidavits purporting to establish proper mailing. In each case, insurance carriers moved for summary judgment based on procedural defenses requiring proof that specific documents had been timely mailed to providers or assignors.

The carriers submitted affidavits from employees or claim representatives describing their office mailing procedures. However, these affidavits shared common deficiencies that rendered them insufficient to meet the carriers’ burden of proof. The court examined whether the affidavits adequately established standard office practices designed to ensure proper addressing and mailing, and whether they demonstrated that these practices were actually followed in mailing the specific documents at issue in each case.

The decisions span multiple procedural defenses, including EUO no-shows requiring proof that scheduling letters were mailed, IME non-appearances requiring proof that examination notices were sent, and timely denials requiring proof that denial forms were mailed within regulatory timeframes. Despite the different substantive defenses, the cases turned on the same evidentiary question: Did the carrier adequately prove proper mailing?

Jason Tenenbaum’s Analysis

Parisien v Maya Assur. Co., 2018 NY Slip Op 50771(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling examinations under oath (EUOs) had been properly addressed and mailed”

Parisien v Maya Assur. Co., 2018 NY Slip Op 50766(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2018 NY Slip Op 50775(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed ”

Mind & Body Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50779(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed""

Remedial Med. Care, P.C. v Park Ins. Co., 2018 NY Slip Op 50769(U)(App. Term 2d Dept. 2018)

“With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed”

Legal Significance

These parallel decisions establish rigorous standards for affidavits purporting to prove mailing in no-fault litigation. Courts require affidavits to describe specific office procedures with sufficient detail to demonstrate that proper mailing is systematically ensured rather than merely hoped for. Generic statements that documents are “prepared and mailed in the ordinary course of business” fail to meet this standard.

Acceptable affidavits typically describe concrete procedures such as how documents are generated, who reviews them for accuracy before mailing, how addresses are verified, what procedures ensure correct postage is applied, how documents are physically deposited with the postal service, whether mailing logs or other records are maintained, and what quality control measures prevent mailing errors. The affiant must also demonstrate personal knowledge of these procedures and explain how they know the procedures were followed for the specific mailings at issue.

The decisions reflect judicial recognition that procedural defenses in no-fault cases significantly impact providers’ and assignors’ substantive rights. When carriers disclaim coverage based on alleged EUO or IME no-shows, they terminate the insureds’ right to benefits. When carriers assert timely denials, they preserve defenses that would otherwise be waived. Given these significant consequences, courts demand reliable proof that the predicate procedural steps actually occurred.

Practical Implications

Insurance carriers must develop and maintain detailed, documented mailing procedures that satisfy judicial scrutiny. Generic office practice affidavits no longer suffice. Carriers should implement systems that include documented verification procedures, quality control checks, mailing logs with specific tracking information, and contemporaneous recordkeeping that can later substantiate compliance with mailing requirements.

For providers challenging procedural defenses, these decisions provide powerful precedent for attacking inadequate mailing proof. Close scrutiny of office practice affidavits often reveals the generic, conclusory language that courts have repeatedly found insufficient. When carriers cannot adequately prove mailing, their procedural defenses fail regardless of whether the underlying no-show or denial would otherwise be valid.

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