The Unreasonable EUO

Parisien v Travelers Ins. Co., 2021 NY Slip Op 50396(U)(Civ. Ct. Kings Co. 2021)

I did mean to write on this one sooner as it was a very well written lower court opinion. It is probably a primer or a history lesson of the EUO no sow defense over the last ten (10) years.

It discusses common-law mailing, the bust statement as proof of the no-show, the lack of necessity of the objective reasons, and the inability to apply the doctrine of wifullness,

The case then goes on to discuss mutual rescheduling v. stonewalling, which is something that has not had a lot of attention from the Courts:

“However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made (Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc., 64 Misc 3d 131, 2019 NY Slip Op 51040 ).

However, if plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law (Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130, 2019 NY Slip Op 51038 ).

If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was “reasonably convenient” to plaintiff (Parisien v Metlife Auto & Home, 68 Misc 3d 126, 2020 NY Slip Op 50845 ). One lower court has ruled [*6]that an insurer may not unreasonably refuse to adjourn the exams “where a good-faith request is made to re-schedule and the adjournment sought is not excessive” (Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205, 2013 NY Slip Op 52247 ; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 ).

Here, defendant’s submissions indicate that the requests of plaintiff’s counsel to reschedule were made days before the EUOs were to occur, even though defendant’s counsel had mailed the scheduling letters more than a month before the scheduled EUOs. Defendant’s counsel apparently received plaintiff’s letter dated January 5, 2007 on January 10, 2017, the day before plaintiff’s EUO, as indicated by a date stamp on the letter (see defendant’s exhibit B in sup”

The court finishes with the discussion of what is a reasonable fee. “As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. In this case, the request of plaintiff’s counsel for a flat, up-front fee of $5,000 per claimant was improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143, 2016 NY Slip Op 50698 [“plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations”]).”

Case dismissed.

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