Proof of Failure to Appear for EUO is Sufficient to Void Coverage and Defeat Claims of Health Care Providers
In a declaratory judgment action, the plaintiff moved for summary judgment against defendants New York City Health and Hospitals d/b/a Queens Hospital Center et al. The plaintiff sought a declaration that it is not obligated to pay no-fault benefits to it to reimburse the defendants for claims made under insurance policy number RS813817617, claim number 329138-001, for treatment rendered or medical equipment provided to the individual defendant, Tasha Williams, for injuries allegedly sustained in an auto accident on July 21, 2017 on the grounds that Williams failed to appear for duly scheduled Examinations Under Oath (EUOs).
In Country-Wide Insurance Company v. Tasha Williams, New York City Health And Hospitals D/B/A Queens Hospital Center, NYH-CUMC Pathologists, Damadian Mri In Canarsie, P.C., Metropolitan Medical & Surgical P.C., et al, 2021 NY Slip Op 30065(U), INDEX NO. 652530/2018, Supreme Court Of The State Of New York New York County Part Ias Motion 42EFM (January 7, 2021) the trial court analyzed the evidence provided and ruled in favor of the insurer.
FACTS
The court granted a previous motion of the plaintiff seeking leave to enter a default judgment against the non-answering defendants Tasha Williams, and multiple health care providers. In the prior order, the court found that the plaintiff’s submissions established, prima facie, that it timely mailed the individual defendant a notice for an EUO, and that the individual defendant failed to appear for the duly scheduled EUO or an additional EUO that was timely rescheduled, and therefore the individual defendant breached a condition precedent to the effectiveness of no-fault insurance coverage, thus vitiating that coverage.
Thereafter the plaintiff moved for summary judgment against New York City Health and Hospitals d/b/a Queens Hospital Center, Total Chiropractic PC, and Brook Chiropractic of NY PC seeking the same relief and provided the same submissions.
EVIDENCE
The plaintiff’s submissions were found to be sufficient to establish its entitlement to relief by demonstrating via admissible evidence that the individual defendant failed to appear for duly scheduled EUOs, thereby vitiating her coverage. As evidence establishing its motion for summary judgment the plaintiff submitted the affidavit of Jessica Mena-Sibrian, a no-fault litigation supervisor and former claims examiner for the plaintiff, averring that based upon her personal knowledge of the plaintiff’s mailing practice and procedure the EUO notices and claims denials were properly mailed the same day that they were generated. The plaintiff further submitted the affidavit of Annie Persaud, the administrative assistant for the plaintiff who prepares and mails the plaintiff’s EUO notices, further averring that the EUO notices and claims denials were properly mailed. Also submitted were the transcripts of two EUOs demonstrating that Williams failed to appear on both dates.
ANALYSIS
Contrary to the defendants claims the affidavit of Annie Persaud was found to be sufficient to establish a rebuttable presumption of proper mailing. Once a party has submitted proof in admissible, evidentiary form establishing mailing through either of the aforementioned methods, conclusory denial of receipt is insufficient to raise triable issues of fact regarding the mailing. Rather, to raise a triable issue of fact, a party must sufficiently demonstrate that the routine office practice was not followed in this instance or that the scheduling letters were never mailed. The defendants failed to make any such allegations regarding the plaintiff’s mailing practices that would raise a triable issue.
A failure to request an EUO within the 15-day limit under 11 NYCRR 65-3.5(b) only serves to reduce the 30-day time limit imposed under New York Insurance Law § 5106 and 11 NYCRR 65.15(g)(3). However any assignor’s failure to appear for a requested EUO voids the policy ab initio such that an insurer may retroactively deny claims to the date of loss regardless of whether the denials were timely issued. Accordingly the plaintiff’s motion for summary judgment was granted in its entirety; and it was further, declared that the plaintiff is not obligated to pay no-fault benefits to the answering defendants.
ZALMA OPINION
The EUO is an important tool available to insurers to allow the insured and the insured’s assignees to prove the claims presented under New York’s no-fault law. It also gives the insurer the opportunity to learn sufficient facts, if there is a suspicion of fraud, to determine whether the claim presented was legitimate. The refusal to appear to a duly noticed demand for EUO and a rescheduled EUO is sufficient to refuse to pay, and in New York voids the policy from its inception.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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