Unitrin Advantage Insurance Co. v Carothers, 2007 NY Slip Op 32654(U) Supreme NY
This decision is in PDF form and I can’t really link to it. You can find it by searching the name or using the Slip Op citation.
Briefly.
Unitrin asked for an EUO of Carothers on several occasions. Carothers asked to be reimbursed for the time and expense. Unitrin never got back to him. Unitrin initiated a declaratory judgment action in Supreme Court.
Carothers made a motion to dismiss the complaint. The Court found that Carothers failure to appear for the “EUO’s cannot by itself constitute a willful failure to submit to an EUO resulting in a material breach of the policy. In order to establish willful failure constituting material breach of the policy, plaintiff (in this case Unitrin) must show that the defendant’s (Carothers) attitude “was one of willful and avowed obstruction,” involving a “pattern of noncooperation for which no reasonable excuse is offered.” (citations omitted by me). ”Indeed, Dr. Carothers did not object to appearing for an EUO, but sought payment for lost wages and transportation expsense, payment to which he was entitled under 11 NYCRR section 65-3.5(e).” (emphasis added by me). Although Unitrin claims the amount demanded by Carothers was unreasonable, there is no indication that it attempted to negotiate with Carothers…[i]nstead, it simply commenced this declaratory judgment action.” ”Based on such facts, Unitrin is unable to show that Dr. Carothers willfully failed to appear for the EUO’s.”
“Plaintiff’s cause of action is also deficient because the complaint fails to allege facts indicating that an EUO was reasonably required.”
Unitrin’s cross-motion to amend was denied as it was “palpably without merit.”
Unitrin’s motion for a default judgment against the other parties was alo denied.