Allstate Ins. Co. v Brown, 2019 NY Slip Op 51560(U)(App. Term 1st Dept. 2019)
“In particular, since the arbitrator’s rejection of petitioner’s IME no show defense was based, inter alia, upon her review of the proof of mailing the IME notices, the claimant’s appearance at eight prior scheduled IMEs and petitioner’s treatment of claimant as an adversary, the determination was therefore rational, as it was based on the evidence before her “
Well, much can be said here. Allstate appears to have acted in bad faith or perhaps even violated GBL 349 based upon the snipped I see here.
Also, if this lady appeared for 8 IME’s and I assume they were all positive, what the heck is going on here? This case legitimizes the 65-3.2 analysis and shows what happens when you push the envelope with really bad facts.
While I know there is caselaw that attending one IME does not excuse attending another IME, this is a first-party non-assigned case with poor facts for the carrier. Assuming there were lost wages and further assuming if I were Ms. Brown, I would be jumping on the bad-faith bandwagon and the GBL 349 bandwagon right now. The Court opened the door. Walk through it Ms. Brown!
