Pre and post claim EUO

Pre and Post Claim EUO: Timing Doesn’t Invalidate the Process

No-fault insurance disputes often hinge on procedural requirements that can make or break a case. One recurring question in New York no-fault insurance law involves the timing of Examinations Under Oath (EUOs) — specifically whether an insurance company can schedule an EUO before receiving a formal claim form versus after the claim has been submitted.

The Appellate Term recently addressed this timing issue in a decision that clarifies an important procedural point for healthcare providers and insurers alike. This case demonstrates how courts continue to refine the boundaries of no-fault procedures, particularly regarding EUO requirements and their enforcement.

Jason Tenenbaum’s Analysis:

Longevity Med. Supply, Inc. v Nationwide Ins., 2020 NY Slip Op 51133(U)(App. Term 2d Dept. 2020)

“Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an is required whether the insurance company demands the before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C., 35 AD3d at 721; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146, 2011 NY Slip Op 50946 ). Consequently, although the first EUO scheduling letter was mailed to the assignor before defendant received plaintiff’s first claim form, the scheduling letter was not a nullity (id.).:

It is funny watching some courts grapple with the effect a pre claim or a post claim EUO has on a matter.

Legal Significance

The Appellate Term’s ruling in Longevity Medical Supply clarifies an important procedural question that had generated inconsistent results in lower courts. The decision establishes that the timing of an EUO demand relative to claim form submission does not affect the EUO’s validity or the claimant’s obligation to appear. This resolves confusion that had arisen in Civil Court decisions where some judges suggested that pre-claim EUO demands might be invalid or premature.

The court relied on Stephen Fogel Psychological, P.C. v Unitrin Direct Insurance Co., 35 AD3d 721, which explicitly held that EUO appearance is required whether the demand precedes or follows claim form submission. The Appellate Term also cited LDE Medical Services, P.C. v Interboro Insurance Co., 31 Misc 3d 146, which reached the same conclusion and explained the policy rationale: insurers have legitimate investigative needs that may arise before receiving formal claim forms, particularly when they learn of accidents through other sources or when they need to investigate potential coverage issues.

This holding makes practical sense within the no-fault regulatory framework. Insurance companies often become aware of potential claims before receiving formal claim forms through police reports, accident notifications, or communications from insureds. Requiring insurers to wait until claim forms arrive before scheduling EUOs would unnecessarily delay investigations and could prejudice insurers’ ability to gather timely information about accidents and claimants.

The decision also eliminates a potential gamesmanship strategy where claimants might delay submitting claim forms to avoid or postpone EUO obligations. Without this rule, sophisticated claimants could frustrate insurers’ investigative efforts by withholding claim forms while continuing to demand benefits or by timing claim form submission strategically to interfere with scheduled EUOs.

Practical Implications for Attorneys and Litigants

For insurance companies and their counsel, this decision provides clear authority to schedule EUOs whenever investigative needs arise, without worrying about the precise timing of claim form submission. Insurers can send EUO scheduling letters based on accident notifications, police reports, or other sources of information, even before receiving formal no-fault claim forms. This allows insurers to conduct timely investigations and preserves their ability to disclaim coverage based on EUO non-appearance.

However, insurers should still ensure that EUO demands comply with all regulatory requirements regarding timing, location, and notice. The fact that pre-claim EUO demands are valid does not excuse other procedural defects. Insurers should also be prepared to explain why the EUO was necessary before receiving claim forms, particularly if challenged on reasonableness grounds.

For healthcare providers and their attorneys, this decision forecloses an argument that had occasionally succeeded in Civil Court: that EUO demands issued before claim form submission are nullities. Providers can no longer rely on timing alone to invalidate EUO-based disclaimers. Instead, challenges must focus on whether the EUO demand was reasonable in timing, location, and other material respects, and whether proper notice was provided.

The decision also has implications for how providers advise their assignors about EUO obligations. Providers should inform assignors that EUO demands may arrive before claim forms are submitted and that these demands are valid and must be honored. Failure to appear for a pre-claim EUO can result in denial of coverage just as surely as failure to appear for a post-claim EUO.

Key Takeaway

The timing of when an insurance company schedules an EUO — whether before or after receiving a claim form — does not affect the validity of the EUO requirement. Courts have consistently held that appearance at an EUO is mandatory regardless of when the insurer makes the demand, settling a procedural question that has created confusion in lower courts.

Related Articles

• No-Fault attorney
• An EUO defense that was precluded
• EUO no-show – correct statement of law