October 20, 2015
Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. (2015 NY Slip Op 51522(U))
https://www.beynensonlaw.com/case-law/acupuncture-pain-mgt-p-c-v-kemper-cas-ins-co-2015-ny-slip-op51522u/
- Decided
- October 20, 2015
- Citation
- 2015 NY Slip Op 51522(U) · 49 Misc 3d 136(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. (2015 NY Slip Op 51522(U))
| Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. |
| 2015 NY Slip Op 51522(U) [49 Misc 3d 136(A)] |
| Decided on October 20, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on October 20, 2015
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570824/14
against
Kemper Casualty Insurance Company, Defendant-Appellant.
Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 10, 2014, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Joseph E. Capella, J.), entered March 10, 2014, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to Civil Court’s determination, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturist and defendant’s third-party IME scheduler setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]). Accordingly, when the assignor failed to appear for the requested acupuncture IMEs, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 20, 2015
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held, contrary to the lower court, that examiner and scheduler affidavits were competent proof of the assignor's repeated IME nonappearances, and with proven mailing the defense was established.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show voids coverage; insurer need not show a timely denial (rules on the question, but another ground decided the case)
Held that upon the assignor's failure to appear for IMEs the insurer could deny all claims retroactively regardless of whether the denials were timely, even though some were first denied on other grounds.
Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer established timely and proper mailing of the IME notices to the assignor, and the provider raised no triable issue as to their mailing.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- American Tr. Ins. Co. v Marte-Rosario (2013 NY Slip Op 07416)The insurer's proof of IME notice mailing and the assignor's nonappearance established entitlement to a declaration of no coverage.
Similar decisions
- Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co. (2015 NY Slip Op 50346(U))An assignor's IME nonappearance permits retroactive denial of all claims to the date of loss regardless of denial timing or initial grounds.
- 21st Century Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50445(U))The insurer proved timely mailing of the IME notices and the assignor's nonappearance, warranting dismissal of the provider's claims.
- Life Tree Acupuncture P.C. v Republic W. Ins. Co. (2016 NY Slip Op 50023(U))An insurer may request IMEs before receiving a provider's claim forms under 11 NYCRR 65-1.1.
- Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
- Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.