Key Takeaway
Analysis of Unitrin v Dowd case ruling that EUO no-shows void entire no-fault insurance policies ab initio, questioning the logic and consistency of this approach.
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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 ; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [“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 ). 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. 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.
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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.
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Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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