David M. Barshay
David M. Barshay ()

An insurance company, or self-insurer as the case may be, may demand an injured person and/or her assignee health-care provider appear for an examination under oath (EUO).1 Similarly, the insurer may demand the injured person submit to medical examinations “by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”2 Where the applicant fails to comply with such demand, the insurer may deny the applicant’s claim.3

Generally, to prevail on a defense of EUO or IME “no-show,” an insurer must prove both the mailing of its scheduling letters and the non-appearance at the scheduled EUO or IME. However, the Appellate Divisions are split on whether an insurer must raise the “no-show” defense in a timely denial in order to preserve such defense, with the Second Department holding that it must be so timely raised to avoid preclusion,4 and the First Department holding that such defense survives preclusion.5

First Department Case

In a decision this year, American Tr. Ins. Co. v. Jaga Med. Servs.,6 the Appellate Division, First Department, addressed the issue of reasonableness for the EUO request. In that case, the insurer commenced a declaratory judgment action against the injured person and his treating providers for a declaration that the insurer was not obligated to pay no-fault claims due to the claimant’s failure to appear for scheduled EUOs. The insurer moved for summary judgment, and the lower court granted the motion.

On appeal, the Appellate Division reversed and denied the insurer’s motion, holding, “The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion [citation omitted], and such fact is exclusively within the knowledge and control of the movant.” Thus, in addition to requiring the insurer to prove it properly scheduled the EUOs and the claimant failed to appear, the court apparently recognized that there must be a legitimate reason to conduct the EUO.

This holding apparently derives from the regulation permitting an insurer to demand an EUO “as may reasonably be required,” as well as from the claim practice principles set forth in Section 65-3.2 of the Regulations (“Do not demand verification of facts unless there are good reasons to do so.”) and 65-3.5(e) (“When an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.”).

In support of its decision, the court cited American Tr. Ins. Co. v. Curry,7 which, citing Section 65-3.5(e), similarly denied the insurer’s motion for summary judgment based on EUO no-show, because, inter alia, the insurer’s motion lacked admissible evidence of “any justification, need, or explanation for [the injured person's] EUO.”

Second Department

The holdings in both Jaga Med. Servs. and Curry appear to be in conflict with cases in the Second Department, which hold that unless a claimant objected to the reasonableness of the EUO requests, presumably at the time they were demanded, the claimant or his assignee cannot raise the reasonableness, or lack thereof, later on in court. For instance, in Excel Imaging v. Infinity Select Ins. Co.8 the Appellate Term held, “since plaintiff does not claim that its assignor objected to the reasonableness of the EUO requests, its objections regarding the requests will not now be heard.” Likewise, in Flow Chiropractic v. Travelers Home & Mar. Ins. Co.,9 the Appellate Term, citing an Insurance Department opinion letter, held, “Plaintiff’s contention that defendant was not entitled to summary judgment because defendant had failed to set forth any objective standards for requesting the EUOs lacks merit. No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs.’”

In Crescent Radiology v. American Tr. Ins. Co.,10 the Appellate Term similarly held, “plaintiff does not claim to have responded in any way to defendant’s request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request.” However, the court further noted that in that case, “The [insurer's motion] papers substantiate the basis for the EUO request.” In Barakat Med. Care v. Nationwide Ins. Co.,11 the Appellate Term held, “defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law.”

The court in Jaga Med. Servs. further held that “discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition.” A contrary result was reached in Palafox PT v. State Farm Mut. Auto. Ins. Co.,12 a case in the Second Department. There, the insurer moved for summary judgment based on the assignor’s EUO no-show. The medical provider, like the medical provider in Jaga Med. Servs., opposed the insurer’s EUO no-show motion, arguing that the insurer lacked justification for its EUO requests and, further, that the insurer’s motion should have been denied because plaintiff had not received discovery regarding the reasonableness of the EUO request. The court, citing Interboro Ins. Co. v. Clennon,13 rejected the medical provider’s argument and held, “plaintiff did not establish what information it hoped to discover that would demonstrate the existence of a triable issue of fact.”

A similar result was reached in Metro Health Prods. v. State Farm Mut. Auto. Ins. Co.,14 where the Appellate Term held that where the insurer established its timely denial, the mailing of its EUO scheduling letters and the non-appearance of plaintiff, “discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion.” Thus, although the First Department (contrary to the Second Department) does not require an EUO no-show defense be raised in a timely denial, it nevertheless requires a demonstration of the reasonableness for the EUO. Additionally, based on Jaga Med. Servs., the First Department does, consistent with the Second Department,15 require that EUO scheduling notices be mailed in a timely manner.

Thus, in the context of an EUO no-show defense, while the Second Department requires a timely denial, in those cases where the insurer does timely deny, the claimant will likely be precluded from raising lack of reasonableness for the request if it failed to previously object. Conversely, when in the First Department, an insurer will not be precluded from raising an EUO no-show defense in the absence of a timely denial, but the court will not preclude a claimant from raising a reasonableness challenge to the EUO demand regardless of whether it was previously raised. In both departments, timeliness of the EUO requests is a ripe issue.

Affidavits

On a related topic, although an insurer ordinarily proves the non-appearance at an EUO with an affidavit of the person assigned to conduct the examination, there have been recent decisions that found such affidavits insufficient. For example, the Appellate Term denied the insurer’s motion in Compas Med. v. Farm Family Cas. Ins. Co.,16 because “defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the examination under oath.” In Village Med. Supply v. Travco Ins. Co.,17 the Appellate Term held that the affirmation of the attorney who was to conduct the EUO did “not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied.”

Similarly, with respect to non-appearance at scheduled IMEs, although an affidavit of the IME physician assigned to conduct the IMEs will ordinarily suffice to prove the non-appearance, several recent decisions have found such affidavits insufficient. For example, in Alleviation Med. Servs. v. Allstate Ins. Co.,18 the defendant’s motion for summary judgment based on the assignor’s IME no-show was supported by an affirmation from the doctor assigned to perform the IME. Denying the insurer’s motion, the Appellate Term held that defendant’s IME doctor “failed to demonstrate by personal knowledge…or by any other appropriate means…the nonappearance of plaintiff’s assignor for both of the IMEs.”

Thus, regardless of the court in which the action is heard, an insurer’s affidavit to prove the “no show” must not be conclusory or equivocal and must be by individuals with personal knowledge of the non-appearance.

Endnotes:

1. 11 NYCRR 65-1.1.

2. Id.

3. Stephen Fogel Psychological v. Progressive Casualty Insurance Company, 35 AD3d 720 (2d Dept. 2006); Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, 82 AD3d 559 (1st Dept. 2011).

4. Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept. 2009).

5. Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, supra.

6. 2015 NY Slip Op 03925 (1st Dept. 2015).

7. 45 Misc.3d 171 (Sup Ct NY Cty 2013).

8. 46 Misc.3d 128(A) (App Term 2d, 11th and 13th Jud Dists 2014).

9. 44 Misc.3d 132(A) (App Term 9th & 10th Jud Dists 2014).

10. 31 Misc.3d 134(A) (App Term 9th & 10th Jud Dists 2011).

11. 2015 NY Slip Op 51677(U) (App. Term 2d, 11th & 13th Jud. Dists. 2015).

12. 2015 NY Slip Op 51653(U) (App. Term 2d, 11th & 13th Jud. Dists. 2015).

13. 113 AD3d 596 (2d Dept. 2014).

14. 49 Misc.3d 130(A) (App. Term 2d, 11th & 13th Jud. Dists. 2015)

15. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc.3d 49 (App Term 2d Dept. 2008); Great Health Care Chiropractic v Travelers Ins. Co., 2015 NY Slip Op 51665(U) (App. Term 2d, 11th & 13th Jud. Dists. 2015); Compas Med. v Farm Family Cas. Ins. Co., 2015 NY Slip Op 51631(U) (App. Term 2d, 11th & 13th Jud. Dists. 2015).

16. 2015 NY Slip Op 51704(U) (App. Term 2d, 11th & 13th Jud. Dists. 2015).

17. 49 Misc.3d 141(A) (App. Term 2d, 11th & 13th Jud. Dists. 2015).

18. 49 Misc.3d 140(A) (App. Term 2d, 11th & 13th Jud. Dists. 2015).