In yet another set-back for the defense bar, the appellate division second department held in Dilon Med. Supply Corp. v Progressive Cas. Ins. Co., 2006 NYSlipOp 50908(U), decided May 17, 2006 that requests for examinations under oath did not toll the thirty day rule as defendant failed to provide proof that the policy endorsements mandated by the new regulations were made a part of the applicable policy.
First, every policy issued or renewed is required by law to include the endorsement. Second, the claim involved appears to have arisen right when the new regulations went into effect, so it dealt with a situation where a plaintiff could call into question whether the new endorsement controlled. If plaintiff raised such an issue, defendant should have been afforded an opportunity to respond rather than ruling against them by fiat.
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The Regulation does not Require the EUO Endorsement!!! The regulations set the standard for issuers of policies- not the verbatum language required! An insurer may adopt the language, or chose to elimiate the requirements- which would equate to the ability to charge higher priemiums. Insurers may not require their policy holders to submit to more than the regs allow, but they may certainly require less. For example an insurer could write: all parties, in order to be eligible injured parties, must submit to a 19 second walk-over-hot-coals provision, but such would not stand in court, whereas now, post April 2002, the EUOs provision does. Just because the insurer can now request EUOs does not mean that they must include the provision in the policy. Come On Guys.... you know this! - Happy Defense Counsel.
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