It did not have to be mailed to the attorney

EUO Notice Requirements and Attorney Representation

Under New York’s no-fault insurance regulations at 11 NYCRR 65-3.5 and 65-3.6, insurers must provide proper notice when scheduling examinations under oath. The regulations specify where EUO scheduling letters must be mailed, but questions arise when assignors retain legal counsel. Should insurers mail EUO notices to the assignor directly, to the attorney, or to both?

This issue carries significant practical implications. Attorneys can ensure their clients receive actual notice of scheduled examinations and can coordinate attendance. Direct mailing to assignors bypasses this protective layer, potentially resulting in no-shows based on lack of actual notice rather than willful non-cooperation. The regulatory framework must balance insurers’ legitimate need to examine claimants against assignors’ rights to legal representation.

Case Background

In Pavlova v Nationwide Insurance, a healthcare provider sued to recover no-fault benefits for medical services provided to an accident victim. The insurance carrier moved for summary judgment, arguing the assignor failed to appear for properly scheduled EUOs. The carrier demonstrated that it mailed EUO scheduling letters directly to the assignor but not to the assignor’s attorney.

The healthcare provider opposed the motion, arguing that EUO notices should have been mailed to the attorney once the assignor retained counsel. The provider contended that mailing notices only to the assignor, while bypassing the attorney, violated the assignor’s right to representation and constituted improper notice. The Civil Court denied the insurer’s motion, but the Appellate Term, Second Department, reversed.

The appellate court considered whether 11 NYCRR 65-3.5 and 65-3.6 require insurers to mail EUO scheduling letters to assignors’ attorneys or whether mailing to the assignor alone suffices.

Pavlova v Nationwide Ins., 2021 NY Slip Op 50213(U)(App. Term 2d Dept. 2021)

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the assignor, that the assignor twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ).

Contrary to the determination of the Civil Court, the affirmations of defendant’s counsel, as well as the transcripts of the EUOs, were sufficient to establish that plaintiff’s assignor had failed to appear for the EUOs. 6 ).

We know if the letter is mailed to attorney and the attorney has knowledge that the Assignor’s address is wrong because it is evident on the mailed letter to the attorney, then it counts as service upon the Assignor. According to this case, we can skip the attorney all together, which is not good precedent.

Legal Significance

The Pavlova decision establishes that no-fault insurance regulations do not require insurers to mail EUO scheduling letters to assignors’ attorneys. The regulations specify mailing to the assignor, and courts will not read additional requirements into regulatory text. This interpretation gives insurers complete control over the notice process, eliminating attorneys’ ability to ensure their clients receive actual notice of scheduled examinations.

Jason’s concern about this precedent is well-founded. Prior case law established that when insurers mail EUO notices to attorneys, the attorney’s knowledge of an incorrect assignor address can constitute constructive notice to the assignor. The Pavlova ruling permits insurers to bypass attorneys entirely, potentially undermining this protective doctrine. If carriers need not mail to attorneys at all, the question of attorney knowledge about incorrect addresses becomes irrelevant.

This creates an asymmetry in no-fault litigation. Insurers benefit from strict enforcement of assignors’ obligations to appear at EUOs, with non-appearance authorizing complete disclaimer of coverage. Yet assignors receive no corresponding protection ensuring they receive actual notice of examination dates. An assignor who moves, changes addresses, or has mail delivery problems may never learn about scheduled EUOs, yet face coverage disclaimer based on regulatory notice that never reached them.

Practical Implications

Healthcare provider attorneys must implement protective procedures when assignors face EUO demands. Counsel should maintain direct contact with assignors, confirming current addresses and phone numbers. Attorneys should request that insurers copy them on all EUO scheduling letters, even though carriers have no obligation to do so. When assignors miss EUOs, attorneys should immediately investigate whether the assignor received actual notice, examining proof of mailing and assignor address records.

Insurance carriers gain significant tactical advantage from this ruling but should consider whether bypassing attorneys serves long-term litigation efficiency. Mailing EUO notices to both assignors and their attorneys ensures maximum likelihood of actual notice, potentially reducing disputes about whether assignors received proper notice. While carriers have no legal obligation to copy attorneys, doing so voluntarily may prevent litigation over notice issues and expedite case resolution.

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• New York No-Fault Insurance Law

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