Key Takeaway
Island Life Chiropractic v 21st Century case review: EUO failure, 30-day denial deadlines, and Unitrin defense preclusion in New York no-fault insurance claims.
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We will never see an end of Unitrin discussions. I think 14 years ago, it was believed an appellate consensus would have been reached.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 2021 NY Slip Op 21340 (App. Term 2d Dept. 2021)
On appeal, plaintiff argues that defendant was required to deny all three claims within 30 days of plaintiff’s assignor’s failure to appear for the second scheduled EUO, on January 22, 2015, and therefore that defendant is precluded from raising this defense.
(1) “Plaintiff correctly argues that defendant, by claiming that it had mailed the denial of the November 26, 2014 claim on February 24, 2015, failed to establish, under the circumstances presented, that it had timely denied that claim.
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A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 ; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 ). While it is not disputed on this appeal that defendant tolled its time to pay or deny the November 26, 2014 claim by timely scheduling an EUO of plaintiff’s assignor (see 11 NYCRR 65-3.8 ; see also e.g. Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 ; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137, 2014 NY Slip Op 51244 ), the toll ended when plaintiff’s assignor failed to appear at the second EUO on January 22, 2015 (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133, 2020 NY Slip Op 51226, *1-2 ).
As defendant did not demonstrate that it denied the November 26, 2014 claim within 30 days of the end of the toll, it has not demonstrated that it is not precluded from raising its proffered EUO no-show defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 ; see also Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192) as to that claim, and the branch of defendant’s motion seeking summary judgment dismissing the November 26, 2014 claim should have been denied.”
(2) “However, there is no merit to plaintiff’s argument that the branch of defendant’s motion seeking summary judgment dismissing the February 13, 2015 claims should have been denied because defendant was similarly required to deny those claims within 30 days of plaintiff’s assignor’s failure to appear on January 22, 2015. Rather, defendant demonstrated that those claims were properly denied on March 2, 2015, within 30 days of their receipt, based upon the prior nonappearance (see 11 NYCRR § 65-3.8 ; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134, 2011 NY Slip Op 52382 ).”
(3) “It has been long held that “he failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath … is a material breach of the policy, precluding recovery of the policy proceeds” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 ; see Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 ). While this failure has been termed “a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 ; see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226), it is more appropriately characterized as a “breach of an existing policy condition” (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d at 197).
It would be contrary to 11 NYCRR 65-3.8 (a) (1), and, in effect, render that subdivision a nullity, if, as plaintiff suggests, a no-show defense were to expire 30 days after the second nonappearance—in this instance, defendant’s time to pay or deny the February 13, 2015 claims would have expired well before the 30 days permitted by the regulations. Indeed, under plaintiff’s interpretation, an eligible injured person and his or her assignees could simply wait 30 days after failing to appear to submit any new claims, and the insurer would then be prohibited from denying those claims based upon the nonappearance”
(4) “To the extent that plaintiff argues that a failure to timely deny any one claim based upon a nonappearance at an EUO or IME once that defense has accrued constitutes a waiver of the right to thereafter assert that defense as to any and all subsequent claims submitted upon the same covered event, that argument is without merit.
In other words, defendant’s failure to timely deny the November 26, 2014 claim based on the January 22, 2015 nonappearance was not a waiver of defendant’s right to timely deny, as it did, the February 13, 2015 claims based upon the same prior nonappearance (see ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382). Each such claim is treated on an individual basis (cf. Shtarkman v Allstate Ins. Co., 8 Misc 3d 129, 2005 NY Slip Op 51028 ; A & S Med. v Allstate Ins. Co., 196 Misc 2d 322 , affd 15 AD3d 170 ).
We note that, in this respect, EUO and IME nonappearances are treated differently from the failure to provide requested written verification, which is only a proper basis for the denial of claims for which the written verification was specifically requested and cannot, based on the regulations and the case law, be asserted as a basis for a denial of any subsequently submitted claim (see 11 NYCRR 65-3.8 ; see generally Shtarkman v Allstate Ins. Co., 2005 NY Slip Op 51028; A & S Med. v Allstate Ins. Co., 196 Misc 2d 322).”
So what is happening here? An argument is made that a disclaimer for a no-show has to be made no later than 30-days after the no show. Therefore, a disclaimer within 30-days following receipt of a bill is untimely. The Court correctly observed this contravenes 3.8(a)(1). It also contravenes 5106(a),
The again cites Nationwide as making more sense that Unitrin, That is old news. But the Court stated in essence that the 120-day rule does not apply to verifications that are keyed by an IME or EUO. Interesting.
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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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