It is personal knowledge again

EUO No-Show Affidavits: The Personal Knowledge Debate That Affects Your No-Fault Claim

If you’ve been involved in a motor vehicle accident in New York and are dealing with no-fault insurance claims, you may encounter something called an Examination Under Oath (EUO). But what happens when someone doesn’t show up for their scheduled EUO? A recent case, SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775(U)(App. Term 2d Dept. 2022), highlights ongoing concerns about how insurance companies prove EUO no-shows – and why this matters for your case.

The SVP Med Supply Case: What Courts Accept as Proof

In this case, GEICO defended against a no-fault claim by arguing that the plaintiff failed to appear for a scheduled EUO. To prove this no-show, they submitted an attorney’s affirmation with some interesting language:

“Defendant submitted the affirmation of an attorney who stated that she was in her firm’s office on the dates on which the EUOs were scheduled, that she would have either conducted the EUO herself or assigned another attorney to do so, and that plaintiff did not appear. She was not required to state that she was present in the office at any specific time on the scheduled dates.”

The court accepted this as sufficient proof of personal knowledge, but this ruling raises important questions about the quality and reliability of such evidence.

Jason Tenenbaum’s Honest Assessment

As Jason Tenenbaum notes in his candid analysis: “I honestly dislike those affidavits. They read as a lazy person’s way to prove a no-show, and I tend to wonder if this practice or protocol really happens.”

This frank assessment from an experienced personal injury attorney highlights a critical issue: are these affidavits truly based on personal knowledge, or are they formulaic documents that may not reflect what actually occurred?

What This Means For You: Understanding EUO Requirements

If you’re dealing with a no-fault insurance claim in New York, understanding how EUOs work and how no-shows are proven is crucial for protecting your interests.

What is an Examination Under Oath (EUO)?

An EUO is a formal proceeding where you’re required to answer questions under oath about your accident and related claims. Insurance companies often use EUOs to:

• Gather additional information about the claim
• Assess the credibility of the claimant
• Look for inconsistencies in the claim
• Sometimes, create grounds for denying the claim

The Personal Knowledge Standard

When an insurance company claims someone didn’t show up for an EUO, they must prove this with personal knowledge. The SVP Med Supply case establishes that this can be satisfied by an attorney who:

• Was present in the office on the scheduled date
• Would have conducted or supervised the EUO
• Can attest that the person didn’t appear

However, as the case notes, the attorney doesn’t need to specify exactly when they were present during the scheduled time.

The Problem with “Cookie-Cutter” Affidavits

Jason Tenenbaum’s criticism of these affidavits reflects a broader concern in the legal community about the quality and authenticity of routine legal documents. Here’s why this matters:

Lack of Specific Details

Many EUO no-show affidavits follow a template format that provides minimal specific information about what actually occurred on the scheduled date. This generic approach can raise questions about whether the affiant truly has personal knowledge of the events.

Questions About Office Protocols

As Jason notes, it’s worth questioning whether the described practice “really happens.” Do attorneys actually follow the protocols described in these affidavits, or are these documents created after the fact based on assumptions?

Impact on Case Outcomes

These affidavits can be used to deny claims or obtain summary judgment, making their accuracy critically important for claimants who may lose benefits based on questionable evidence.

The Virtual EUO Revolution

Jason Tenenbaum also predicts that virtual EUOs will improve this situation: “In the new virtual world, I think the no-show affidavits will be cleaner and more accurate.”

Why Virtual EUOs May Be Better

Virtual proceedings offer several advantages for documenting no-shows:

• Digital Records: Most virtual platforms automatically create logs of who joined and when
• Screenshot Evidence: Attorneys can capture screenshots showing empty waiting rooms
• Email Trails: Virtual invitations and reminders create clearer documentation
• Real-Time Documentation: Easier to document exactly what happened as it occurs

Reducing Ambiguity

Virtual EUOs eliminate many of the ambiguities present in traditional in-office proceedings. There’s less room for interpretation about whether someone showed up when the technology provides clear records of participation.

Common Scenarios and How They’re Handled

The Traditional In-Office EUO

In traditional EUOs, proving a no-show often relies on testimonial evidence from office staff or attorneys. This can create opportunities for disputes about what really happened.

Technical Issues in Virtual EUOs

Virtual EUOs can have their own complications, such as:

• Technology failures that prevent attendance
• Incorrect meeting links or passwords
• Internet connectivity issues

However, these issues are often easier to document and verify than claims about in-person no-shows.

Protecting Yourself During EUO Proceedings

Before the EUO

• Confirm all details: Verify the date, time, location (or virtual link), and required documents
• Test technology: For virtual EUOs, test your equipment and connection beforehand
• Document communications: Keep copies of all scheduling correspondence
• Plan for contingencies: Have backup plans for transportation or technology issues

During the EUO

• Arrive early: Whether in-person or virtual, early arrival demonstrates good faith
• Bring required documents: Have all requested materials organized and ready
• Stay calm and truthful: Answer questions honestly and don’t speculate
• Ask for clarification: If you don’t understand a question, ask for clarification

If You Can’t Attend

• Notify immediately: Contact the insurance company as soon as you know you can’t attend
• Provide documentation: If you have a legitimate excuse, provide supporting documentation
• Request rescheduling: Ask to reschedule promptly
• Keep records: Document all communications about the rescheduling

Frequently Asked Questions

Q: Can I challenge an EUO no-show affidavit if I believe it’s inaccurate?

A: Yes, you can challenge affidavits that lack proper personal knowledge or contain inaccuracies. However, you’ll need evidence to support your challenge.

Q: What happens if I miss an EUO due to a legitimate emergency?

A: Contact the insurance company immediately and provide documentation of the emergency. Most companies will allow rescheduling for legitimate reasons if you act promptly.

Q: Do I have to attend an EUO if I have legal representation?

A: Yes, EUOs typically require your personal attendance, even if you have an attorney. Your lawyer can usually attend with you to provide guidance.

Q: Can insurance companies use EUO no-shows to deny my entire claim?

A: Depending on the circumstances and your insurance policy terms, failure to attend an EUO can potentially result in claim denial. This is why attendance is so important.

Q: How can I prove I attended an EUO if the insurance company claims I didn’t?

A: Keep your own records, including travel receipts, parking stubs, or screenshots from virtual meetings. Consider bringing a witness or asking for written confirmation of your attendance.

The Bigger Picture: Evidence Quality in Legal Proceedings

The SVP Med Supply case reflects broader concerns about evidence quality in legal proceedings. While courts may accept minimal evidence of personal knowledge, the practical implications for claimants can be significant.

Implications for Legal Practice

Jason Tenenbaum’s critique highlights the need for legal professionals to maintain high standards of evidence, even when courts might accept lower standards. This approach ultimately serves clients better and maintains the integrity of the legal process.

The Role of Technology

As legal proceedings increasingly move online, technology may help address some of the concerns about evidence quality and authenticity that have plagued traditional processes.

Best Practices for Legal Professionals

For Insurance Defense Attorneys

• Maintain detailed, contemporaneous records of EUO proceedings
• Use specific rather than generic language in affidavits
• Implement clear office protocols for documenting no-shows
• Consider using technology to create better documentation

For Plaintiff’s Attorneys

• Scrutinize no-show affidavits for lack of personal knowledge
• Prepare clients thoroughly for EUO proceedings
• Document any scheduling or communication issues
• Challenge insufficient evidence when appropriate

Looking Forward: The Evolution of EUO Practice

As Jason Tenenbaum predicts, virtual proceedings may lead to cleaner, more accurate documentation of EUO attendance and no-shows. This evolution could benefit all parties by:

• Reducing disputes about attendance
• Providing clearer evidence for court proceedings
• Improving efficiency in the claims process
• Enhancing fairness for all parties involved

The Bottom Line: Quality and Accuracy Matter

The SVP Med Supply case and Jason Tenenbaum’s commentary highlight an important truth: while courts may accept minimal evidence standards, the quality and accuracy of evidence affects real people’s lives and legal rights.

Whether you’re dealing with EUO proceedings, challenging no-show claims, or navigating other aspects of personal injury law, having experienced legal counsel can help ensure that evidence standards work in your favor rather than against you.

Don’t let questionable evidence or procedural technicalities undermine your legitimate claim. If you’re facing EUO requirements or challenges with no-fault insurance claims, professional legal guidance can help protect your rights and ensure that proper evidence standards are applied to your case.

Call 516-750-0595 for a free consultation to discuss your no-fault insurance claim or EUO concerns. Experience the difference that thorough, professional legal representation can make in your case.