I'll have a post regarding the unsurprising result in LMK later, but there's a new decision from the Appellate Division, Second Department that requires some attention.
The decision in Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 2009 NY Slip Op 02589 (App. Div., 2d Dep't, 2009) has just been posted.
The decision has a few holdings. The ostensible main holding is that letters "advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant's involvement in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts" are not valid verification requests. Id. This holding is nothing groundbreaking.
The much more interesting holding comes later: "Where, as here, the defendant's denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff's assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider's right to recover no fault benefits or to toll the 30-day statutory period. Rather, such denial was subject to the preclusion remedy." Id. (internal citations omitted).
So, in short, EUO no-shows by patients require timely denials. Presumably this holding also applies to other policy conditions, such as attendance at IMEs. If so, this would extinguish any hope raised by the last sentence of Fogel that such a no-show is a coverage defense because "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs." Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720 (2d Dep't, 2006). Clearly, now, such defenses are not based upon a lack of coverage, and must be denied within 30 days. Presumably, timely and valid requests for EUOs and IMEs still toll the 30 days, but the eventual denial must be timely, as well. So, whatever a "retroactive" denial mentioned in Fogel is, it's still something that must be timely.