February 7, 2017

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)

https://www.beynensonlaw.com/case-law/kemper-independence-ins-co-v-adelaida-physical-therapy-p-c-2017-ny-slip-op00916/

Court: Appellate Division, First Department
Decided: February 7, 2017
Citation: 2017 NY Slip Op 00916 · 147 AD3d 437
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 8 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 (1st Dept 2017)

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.

The insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines. The Appellate Division, First Department, reversed the order and judgment, insofar as appealed from, vacated the judgment, and denied the insurer's summary judgment motion for a declaration of no obligation to pay the providers. Although nonappearance at a properly noticed EUO breaches a coverage condition under 11 NYCRR 65-1.1, the insurer supplied neither completed verification forms nor evidence of their receipt dates, and did not assert that none were received. It therefore failed to show that 11 NYCRR 65-3.5 (b) and 65-3.6 (b) were inapplicable or satisfied. The providers' remaining contentions were not reached.

Reported in New York Official Reports at Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C.

2017 NY Slip Op 00916 [147 AD3d 437]

February 7, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 29, 2017

[*1]

Kemper Independence Insurance Company, Respondent,
v
Adelaida Physical Therapy, P.C., et al., Appellants, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered February 19, 2015, to the extent appealed from, granting plaintiff’s motion for summary judgment and declaring that plaintiff is not obligated to provide no-fault benefits to defendants Adelaida Physical Therapy, P.C., Charles Deng Acupuncture, P.C., Delta Diagnostic Radiology, P.C., Island Life Chiropractic Pain Care, PLLC, Maiga Products Corp., and TAM Medical Supply Corp. as a result of a motor vehicle accident, due to claimants’ failure to appear for their scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618).

In view of our disposition, we need not reach defendants’ remaining contentions. Concur—Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer failed to show its EUO notices were exempt from or complied with the 65-3.5 (b) and 65-3.6 (b) time frames because it offered no evidence of when it received any verification forms.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 157 decisions on this question in the First Department courts and the Court of Appeals, 37 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212)A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446) FollowedEUO requests made before receipt of a claim form are not subject to the verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6.
National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (2015 NY Slip Op 06763) FollowedThe insurer failed to establish that it requested the assignor's EUO within the regulatory time frame.
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.

Cited by

A label shows how the later decision treated this one.

Hertz Vehicles, LLC v Best Touch PT, P.C. (2018 NY Slip Op 04854) FollowedThe insurer failed to prove timely EUO requests for default relief against providers but established one claimant's failure to sign an EUO. The motion omitted receipt dates for the providers' verification forms and another claimant's application, preventing assessment of the 15-business-day deadline under 11 NYCRR 65-3.5 (a) and (b).
Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810) FollowedThe insurer's EUO defense failed for four claims because of untimely scheduling notices or insufficient denial grounds.
American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097) FollowedThe insurer failed to establish compliance with IME scheduling deadlines, defeating summary judgment based on nonappearance.
Unitrin Direct Ins. Co. v Beckles (2020 NY Slip Op 06974) FollowedAn insurer establishes a coverage disclaimer by requesting an IME within 15 days of a claim and proving two duly noticed IME no-shows.
American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871) FollowedThe insurer failed to prove timely IME requests because its papers did not establish when it received the providers' verification forms.
American Tr. Ins. Co. v Romero-Richiez (2020 NY Slip Op 51181(U)) FollowedThe insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims.
American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963) FollowedThe insurer failed in both actions to establish timely IME requests and scheduling, defeating its nonappearance-based motions.
Alsaad Med., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op50532(U)) FollowedA provider's failure to attend duly scheduled EUOs defeats coverage even when the insurer's denial is untimely.

Similar decisions

Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C. (2020 NY Slip Op 03876)Claimants' failure to sign and return EUO transcripts violates a coverage condition precedent and warrants denial of benefits.
Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209)The insurer's summary judgment motion was premature because its objective basis for requesting an EUO was unavailable to the providers.
Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50744(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.