When is the location of the EUO reasonable?

The requirement that Examinations Under Oath be conducted at “reasonably convenient” locations represents one of the most frequent sources of dispute in New York no-fault insurance litigation. While the regulatory framework establishes this standard, courts must apply it on a case-by-case basis, weighing factors such as the distance from the examinee’s residence, transportation availability, the examinee’s physical condition, and whether the insurer made good-faith efforts to accommodate the examinee’s circumstances.

The “reasonably convenient” standard serves to balance competing interests. Insurers have legitimate needs to conduct thorough investigations through EUOs, which often require in-person examination and the ability to observe the examinee’s demeanor. However, insurees and assignors should not be forced to travel unreasonable distances or overcome significant logistical barriers to comply with EUO requests. The standard prevents insurers from using inconvenient EUO locations as a tool to manufacture non-compliance and deny otherwise valid claims.

This balancing becomes particularly important when dealing with healthcare providers who may have limited staff available to attend EUOs, injured parties with mobility limitations, or situations where the insured lives out of state. The COVID-19 pandemic and subsequent normalization of virtual proceedings has added another layer of complexity, as virtual EUOs may satisfy reasonableness requirements in some circumstances while raising authenticity and verification concerns in others.

Case Background

RX for You, a medical provider, sought recovery of no-fault benefits from Nationwide Insurance Company. Nationwide scheduled EUOs for the assignor, and when the assignor allegedly failed to appear, Nationwide denied the claims and moved for summary judgment. The provider challenged the reasonableness of the EUO locations, arguing that Nationwide scheduled the examinations at places that were not reasonably convenient to the plaintiff provider.

The record indicated that there had been communications between the parties regarding EUO scheduling, and the provider contended that it had sought accommodations that Nationwide did not adequately address. Nationwide, conversely, argued that it had properly scheduled the EUOs according to regulatory requirements and that any failure to appear was unjustified. The trial court needed to determine whether genuine issues of material fact existed regarding the reasonableness of the EUO locations and whether the parties had mutually agreed to reschedule one of the examinations.

Jason Tenenbaum’s Analysis

RX for You v Nationwide Ins. Co. of Am., 2021 NY Slip Op 51171(U)(App. Term 2d Dept. 2021)

“Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 ; Parisien v Metlife Auto & Home, 68 Misc 3d 126, 2020 NY Slip Op 50845 ). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138, 2012 NY Slip Op 51443 ).”

This has made me thing, when is an EUO reasonable convenient? I ask this because if the EIP lives in NJ and the EUO is scheduled in Long Island, does that automatically make the EUO unreasonable? Or, does this follow the paradigm that if the Assignor asks for an accommodation and one is not given, the EUO attempt violated 3.5(e)? Since there was back and forth, I am thinking this is a situation where law firm said they want the EUO at a certain place and too bad, this is where it is happening,

Lastly, in the world of Zoom depos, is this problem alleviated by getting a zoom link and/or meeting info and putting it in the letter with instructions to contact the law firm if they are not technically savvy and want to appear at a depo center where the virtual depo can take place?

Legal Significance

The Appellate Term’s decision in RX for You reinforces that “reasonably convenient” is a fact-intensive inquiry that cannot be resolved through bright-line rules. The court’s determination that triable issues of fact existed demonstrates judicial recognition that EUO location disputes require examination of the specific circumstances of each case. This approach prevents insurers from relying on formulaic scheduling practices that ignore individual circumstances while also preventing assignors from manufacturing objections to otherwise reasonable arrangements.

The decision’s reference to 11 NYCRR 65-3.5 and the Parisien case establishes that regulatory requirements must be interpreted in light of their underlying purpose: facilitating legitimate investigation while respecting the practical constraints faced by examinees. The regulation does not mandate that EUOs occur at the examinee’s home or place of business, but it does require good-faith consideration of convenience factors.

The court’s additional finding regarding potential mutual rescheduling agreement adds another dimension to EUO disputes. When parties engage in back-and-forth communications about scheduling, questions may arise about whether agreements were reached, whether scheduling changes superseded original EUO requests, and whether subsequent non-appearances should be excused. This highlights the importance of clear documentation of all EUO-related communications.

Practical Implications

For insurance carriers, this decision emphasizes the need for flexible EUO scheduling practices. Rather than unilaterally dictating location and time, carriers should engage in dialogue with assignors and their representatives about reasonable accommodations. When an assignor requests a different location or raises concerns about travel distance, the carrier should document its consideration of the request and provide specific reasons if denying an accommodation. This creates a stronger record if litigation ensues.

The rise of virtual EUOs presents both opportunities and challenges. Virtual examinations can solve many convenience problems by eliminating travel requirements entirely. However, insurers must ensure that virtual EUOs provide adequate opportunity to observe the examinee and verify identity. Offering hybrid options—where examinees can choose between in-person attendance at a convenient location or virtual participation—may provide the best balance of convenience and investigative effectiveness.

For healthcare providers and their attorneys, this decision counsels proactive communication about EUO scheduling concerns. Rather than simply failing to appear at an allegedly inconvenient location, providers should document their objections, propose alternative arrangements, and create a clear record of the insurer’s response. When insurers refuse reasonable accommodation requests without justification, providers can use this evidence to defeat summary judgment motions based on EUO no-shows.

Key Takeaway

EUO location reasonableness depends on case-specific facts including distance, transportation availability, the examinee’s circumstances, and whether the parties attempted to reach mutually acceptable arrangements. Courts will not grant summary judgment when genuine disputes exist about whether locations were reasonably convenient or whether parties agreed to rescheduling. In the modern era of virtual proceedings, offering remote participation options may satisfy reasonableness requirements in many circumstances.

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