Today’s NYLJ has the most recent edition of the No-Fault Insurance Wrap-up. In the article David M. Barshay, a partner at Baker, Sanders, Barshay, Grossman, Fass, Muhlstock and Neuwirthand I (not a partner) discuss the recent developments in no-fault law, including EBTs of assignors, bad faith, and premature verification requests, erroneous forms, and other stuff. I’ll add the excerpts in a little bid.
David:
My name is Jeffrey Silber and I am a no-fault newbie. I attended the Brooklyn Bar Assoc. seminar back in Sept. and found it very insightful. I also enjoy your blog and try to read it everyday. I have a question that I am trying to figure out the answer for and I was hoping with your vast knowledge of the law that you would be able to help me out.
If I have a case of denial based upon No-Show Euo of the EIP or the provdier or denial based upon No Show IME – is there any recourse in arbitrating these types of cases? can they be litigated? Is there anything that I should be looking for within each file to see if there is any technical error on the part of the insurance company.
I await your repsonse, when you find the time
Thank you,
Jeffrey Silber
There’s lots of stuff to argue. They must establish no show with competent non conclusory evidence, can aruge that the failure to attend must be willful, must establish submission of requests via competent evidence sufficient to establish presumption of mailing. Can argue that demand letter was void for some reason, for example, failed to afford costs of attendance. Did they send follow up demand? Was the location of exam too far, overly onerous? Etc…
Willful is a stretch Sun. You know better.
The more relevant question involves the litmus test for determining whether “the location of exam too far, overly onerous? Etc…”? Should the insurance carrier submit google earth photos from the EIP’s residence to the exam site? Should various paths to reach the IME site from the EIP’s domicile be presented to determine mean distance? Should evidence be presented regarding the time of the commute from the EIP’s residence to the IME location, utilizing the following modes of transportation: (a) bus; (b) subway; (c) taxi; (d) horse and buggy; and(e) walking?
Should a certain distance and time of commute meet the overly onerous test you have proposed Sun?
I am curious. I have heard these same arguments for many years, yet I have not heard anyone try to outline a well thought-out factor based test to determine “overly onerous”. The best I have heard is that the IME and/or EUO should be in the same county as where the EIP resides. Absent that, nobody has come up with an acceptable answer, let alone any answer.
LOL, I didn’t know I was presenting a formalized discussion. I thought I was just hitting the issues? Wait, what am I doing here again, AJ?
At your insistance, let be provide the following treatment to this Plaintiff’s newbie:
Most the facts are removed from this quote, including the fact that the EUO was scheduled 2 hours drive time from the subject witness:
“Defendant’s EUO demand was void since it failed to set forth a “reasonably convenient” place and time for the applicant in violation of 11 NYCRR § 65-3.5 (e).
Specifically, 11 NYCRR § 65-3.5 (e) provides as follows:
All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination. Insurer standards shall be available for review by Department examiners.
Furthermore, Defendant’s scheduling letter required the Plaintiff to contact the SIU Investigator a week in advance of the EUO date in the event that “the date, time and/or location are inconvenient” to “reschedule the examination for a date and time, as well as a location which is reasonably convenient to you.”
However, the Regulations do not require that a “rescheduled” examination be “reasonably convenient” to the applicant. Rather, the Regulations require that “[a]ll examinations under oath . . . requested by the insurer shall be held at a place and time reasonably convenient to the applicant.” As such, Defendant is not permitted by the Regulations to schedule an obviously unreasonably inconvenient EUO and then require the applicant to takes steps to have it rescheduled so as to render it “reasonably convenient.”
The Insurance Department made this point clear in its Opinion Letter dated March 12, 2001 pertaining to medical examinations (Opinion No. 01-03-10). As the Department provided:
The issue of whether a particular medical examination requested by an insurer has been held at a time reasonably convenient to the applicant requires a finding of fact as to what is considered to be reasonable under the specific circumstances of each situation. As such, it would be inappropriate for the Department to comment or opine upon such an issue. Rather, the issue is subject to resolution through arbitration or by a court of competent jurisdiction. The insured may also file a complaint with the Department’s Consumer Services Bureau (Hotline # 800-342-3736).
Opinion No. 01-03-10.
Notably, in finding that the question of whether an examination was to take place in a manner “reasonably convenient” to the applicant was a question for the finder of fact to resolve, the Department made no exceptions with respect to the alleged possibility of rescheduling the examination for a different place or time.
Based on the foregoing, Defendant failed to schedule the EUO to “be held at a place and time reasonably convenient to the applicant,” and thus, Defendant violated 11 NYCRR § 65-3.5 (e). Further, Defendant has certainly failed to foreclose the issue of fact regarding whether its demand was reasonable in this respect. Defendant’s motion should be denied for these reasons alone.”
It would be good for the plaintiff’s bar to take this position jointly– i.e. that the mere statement in the demand letter that the EUO can be rescheduled to a convenient time and place is insufficient to convert an invalid demand– that specifies a forum which is a two hour drive– into a valid one.
Now, is there anything else I should tell him about AJ?
Tell him about cabbages and kings.
Sun,
Your are missing something actually. Where is the quote: “Most the facts are removed from this quote, including the fact that the EUO was scheduled 2 hours drive time from the subject witness[]” coming from? Is this an unpublished court case your office prevailed on? If it is, could you please let us know where we can find that decision? Thanks.
AJ
Thanks for the unintended complement, AJ, but that’s not a court opinion…. yet.
Why A.J.? How could you scare the poor kid away from this wonderful area of law.
Good work Sun.
Kid let me tell you. Most of the time you have a great argument with the insurer’s failing to establish mailing of the EUO Notices. Proving failure to appear used to be tough. It had to be proven by someone with personal knowledge sayeth the Second Department. The App Term interpreted this to mean if you merely say you “are a partner responsible for EUOs and the guy did not show” that proves non appearance by someone with personal knowledge — crazy huh?
I guess its the lofty position of partner in a firm specializing in No Fault Law. What’d Milton say about King of Hell being better then 2nd in command of heaven.