Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012 (1st Dept. 2021)
“The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432 [1st Dept 2019]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [“when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued”]). The coverage defense applies to any claim and is not determined on a bill by bill basis (see PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020]). The EUO was timely requested as to the second claim for benefits for the shoulder surgery, accordingly, defendant’s failure to appear at that EUO voided the policy ab initio as to all claims, and plaintiff’s cross motion for summary judgment should have been granted in its entirety.”
This one is plainly dishonest. If someone misses an EUO late in the game relative to a later bill, the entire policy is voided? I do not think this is consistent with the more recent cases, and I venture to guess that if you traded this case with a PT matter with 35 bills, the court would 5 times out of 10 reach a different result. How do you call the EUO a verification, apply 65.3.5(b) and then apply this case? Also, how do you disclaim a claim when the EUO transcript is not returned signed when the document is an admission? Through not returning the document, the Assignor cannot testify inconsistent with prior sworn testimony.
I agree with the modified concept of Unitrin that a condition precedent is violated when a no show occurs relative to a timely mailed bill. I disagree with the precept that a no show two years after the accident voids the policy. Another way to look at is that when the verification is too far remote from bill receipt and the 30-day pay or deny has run, there is no duty to cooperate at that point relative to that bill.
