January 13, 2016
Life Tree Acupuncture P.C. v Republic W. Ins. Co. (2016 NY Slip Op 50023(U))
https://www.beynensonlaw.com/case-law/life-tree-acupuncture-p-c-v-republic-w-ins-co-2016-ny-slip-op50023u/
- Decided
- January 13, 2016
- Citation
- 2016 NY Slip Op 50023(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Life Tree Acupuncture P.C. v Republic W. Ins. Co. (2016 NY Slip Op 50023(U))
against
Republic Western Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2014, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Elizabeth A. Taylor, J.), entered July 8, 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 plaintiff-provider’s claim 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 plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms on January 10, 2011 (see 11 NYCRR 65-1.1; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U][App Term, 1st Dept 2015]), and such request complied with the applicable procedures and time-frames set forth in the no-fault regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]; cf. American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [2015]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts 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 (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or [*2]otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin, 82 AD3d at 560). 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).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 13, 2016
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 the IME no-show defense established: notices were mailed, IMEs could be requested before the claim forms arrived and complied with regulatory time frames, and examiner and scheduler affidavits proved the nonappearances.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 to the date of loss 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 that it timely and properly mailed the IME notices to the assignor, and the provider raised no triable issue as to their mailing.
Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Easy Care Acupuncture P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51524(U)) FollowedAn insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1.
- 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.
- Inwood Hill Med., P.C. v General Assur. Co. (2005 NY Slip Op 25437) FollowedAn injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage.
- American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) Contrasted (cf., but see)An insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
Cited by
A label shows how the later decision treated this one.
- 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.
- Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446)EUO 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.
Similar decisions
- 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.
- 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.
- Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. (2015 NY Slip Op 51522(U))An assignor's IME nonappearance permits retroactive denial of all claims, regardless of denial timeliness or different initial denial grounds.
- 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.
- Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.