February 6, 2018

Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810)

https://www.beynensonlaw.com/case-law/unitrin-advantage-ins-co-v-all-of-ny-inc-2018-ny-slip-op-00810/

Court: Appellate Division, First Department
Decided: February 6, 2018
Citation: 2018 NY Slip Op 00810 · 158 AD3d 449
Posture: Summary judgment
Outcome: Split result
Later treatment: Distinguished in 2, contrasted (cf., but see) in 1 and followed in 2 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)

Cite as

Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 (1st Dept 2018)

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's EUO defense failed for four claims because of untimely scheduling notices or insufficient denial grounds. The Appellate Division, First Department, modified the order and judgment, denying summary judgment and vacating noncoverage declarations for services on May 15, May 22, and May 31, while preserving the declaration for June 12 services. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), the insurer had to establish timely EUO notices. Its scheduling letter was untimely for the first two claims. Although notices for the two May 31 claims were timely, their denials identified only the first missed EUO, omitting the second appointment and inadequately stating the denial ground. The final claim was timely and properly denied.

Reported in New York Official Reports at Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810)

Unitrin Advantage Ins. Co. v All of NY, Inc.

2018 NY Slip Op 00810 [158 AD3d 449]

February 6, 2018

Appellate Division, First Department

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

As corrected through Wednesday, March 28, 2018

[*1]

Unitrin Advantage Insurance Company, Respondent,
v
All of NY, Inc., et al., Defendants, and Andrew J. Dowd, M.D., Appellant.

Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.

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

Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.

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, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.

Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).

The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

Legal questions (2)

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.

No-show: coverage defense or precludable?

Open 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 defense is subject to preclusion and fails for want of a timely, proper denial

For two bills with timely EUO requests, held the defense failed because the denial form cited only the first EUO nonappearance and so did not adequately apprise the provider of the ground.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category. 3 decisions in other departments that cite or are cited by this one are on the full map.

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 (rules on the question, but another ground decided the case)

Held the EUO request for two dates of service untimely under 65-3.5(b) because it was sent after the 15 business days had run, while the requests for other bills were timely.

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

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916) FollowedThe insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines.
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.
Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 07663) FollowedA timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires.

Cited by

A label shows how the later decision treated this one.

Clinton Med. Off. P.C. v Progressive Max Ins. Co. (2026 NY Slip Op 26094) DistinguishedThe insurer's EUO nonappearance denials were sufficient without listing the scheduled EUO dates.
New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) DistinguishedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U)) Contrasted (cf., but see)An EUO nonappearance denial need not list the dates of the EUOs the provider failed to attend.
Unitrin Advantage Ins. Co. v Dowd (2020 NY Slip Op 50594(U)) FollowedAn insurer may deny claims for EUO nonappearance only where its EUO request was timely as to those claims.
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.
Global Liberty Ins. Co. v Evans (2019 NY Slip Op 07716)The insurer failed to prove timely mailing of EUO letters, and factual issues remained about the assignor's departure from an EUO. The Appellate Division, First Department, affirmed denial of summary judgment declaring no coverage for the provider based on two alleged EUO failures.

Similar decisions

Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012)A provider's failure to attend a timely requested EUO voids coverage for all claims, rather than only the bill prompting the request.
Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C. (2020 NY Slip Op 06474)The insurer proved mailing of IME notices and the claimant's three nonappearances despite an incorrect floor designation.
Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))The insurer established timely and proper mailing of IME and EUO notices and the assignor's failure to appear.
SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U))The insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment.