Examinations Under Oath
New York No-Fault Regulations require a claimant to appear for examinations under oath scheduled by the insurer/self-insurer as reasonably necessary in order to answer critical questions related to a no-fault claim.
11 NYCRR 65 1.1 and 11 NYCRR 65 2.4 set forth that a claimant “as may reasonably be required submit to examinations under oath by any person named by” the Insurer/self-insurer and subscribe the same.
This requirement allows no-fault insurers/self-insurers to depose claimants, under oath, in order to investigate issues such as the claimant’s residency, the facts surrounding the underlying accident or the claimant’s treatment as a part of its investigation of the claim. These examinations must be based upon an insurer’s/self-insurer’s “objective standards” so that there is an objective justification for requesting the examination under oath.
As these examinations are allowed under the no-fault regulations, the failure of a claimant to attend a properly scheduled EUO may serve as a basis to deny the no-fault claim in its entirety. However, these examinations under oath must be properly and timely scheduled.
Because proper handling of these examinations can make or break an insurer’s/self-insurer’s defense, it is critical to utilize the services of a law firm that is familiar with these requirements as well as the applicable case law.
The Courts in New York City and Long Island are divided between two separate departments with often contradictory case law that directly impacts the handling of cases to recover no-fault benefits.
With Manhattan and the Bronx in the First Judicial Department, and Brooklyn, Queens, Staten Island and Long Island in the Second Judicial Department, medical providers have two venues, with frequently contradictory case law, in which to choose to file its claims.
The process of litigating a claim in the New York City or Long Island court system can last years, with cases filed today only coming to trial in five years of more due to court backlogs. Each case may require numerous conferences, motions and appearances. As every step of the litigation process is important, it is vital that an insurer have defense counsel that covers all of these venues and has a thorough knowledge and understanding of the existing and constantly changing case law within the specific judicial departments.
As a quicker and more relaxed alternative to litigation, more actions to recover no-fault benefits are being filed in arbitration than ever before.
With the Courts suffering from a backlog of cases, many medical providers are choosing to file cases for reimbursement of no-fault claims in arbitration.
Unlike litigation where there can be a lengthy discovery process, arbitration requires the parties submit supporting documentation as a part of their pleadings. Arbitrations, unlike litigations, are frequently resolved in a single hearing.
Given the streamlined arbitration process, it is critical that submissions be comprehensive and that the law firm handling the arbitration be fully familiar with the facts of the case.
When coverage is an issue, an insurer/self-insurer has the right to bring a declaratory judgment action in the Supreme Court for an order declaring it has no duty to provide first-party no-fault benefits.
When a claimant has violated a policy condition (such as a failure to appear for an EUO or IME), rather than wait for medical providers to file individual cases in the various lower courts, an insurer/self-insurer may file for a declaratory judgment in the Supreme Court which would make a single determination to be followed by the lower courts.
These actions must be comprehensive, including not only the claimants, but also their known medical providers, as a failure to list a medical provider may prevent the application of the declaratory judgment to the medical provider’s lower court case.
Given how powerful declaratory judgment decisions can be in resolving a myriad of lower court cases, and how complicated such decisions can be to obtain, it is imperative that these cases be handled by a law firm with experience in handling declaratory judgments, and a track record of success in getting favorable decisions.
Section 5105 of New York’s Comprehensive Motor Vehicle Reparations Act (No-Fault Law) mandates insurers, self-insurers, and workers’ compensation providers to arbitrate disputes pursuant to the provisions of section 5105 and 5221(b) of the New York Insurance Law.
Loss Transfer – While New York law does not typically allow for subrogation of no-fault benefits, the exception is where (a) at least one vehicle weighs more than 6,500 lbs. or (b) one vehicle is used for transportation of person or property for hire (livery).
Priority of Payment disputes are filed when insurers, self-insurers and/or compensation providers cannot resolve who is responsible for no-fault payment benefits.
Through this subrogation, a no-fault insurer/self-insurer may be reimbursed up to the full amount of the no-fault benefits paid on a claim. This subrogation is done through inter-company Loss Transfer arbitration, which is usually handled by Arbitration Forums. Choosing a law firm with experience in this area is crucial in successfully handling these cases.
Appealing a decision based on an incorrect application of law or a misunderstanding of the facts at issue can be necessary in order to avoid bad case law.
With so many decisions being issued every day and numerous motions heard daily, it is an unfortunate reality that not every decision will be correct. These incorrect decisions can not only negatively impact an insurer/self-insurer in the immediate sense, but can have a lasting effect by creating “bad case law”. As such, it is crucial that an insurer/self-insurer be able to appeal those cases where an issued decision is incorrect based on either the facts of the case or the relevant case law.
Overturning a judicial decision is not easy and may not be the right decision for every case. Knowing when it is necessary to file an appeal takes a law firm that is experienced in handing no-fault appellate work.
Occasionally questions will arise in handling a claim that cannot be clearly answered by a reading of the no-fault regulations. In these cases, a coverage opinion based on insurance department opinions and relevant case law may be the answer.
It is not always clear whether a claimant involved in a motor vehicle accident is an eligible injured person under New York law or whether the claimant’s failure to provide verification or appear at an examination vitiates coverage. Despite the length and detail of the New York no-fault regulations, ambiguities remain necessitating the insurer/self-insurer to obtain an opinion.
With the multitude of insurance department opinions and the plethora of case law available, finding an answer, let alone a concrete one, can be difficult. It is imperative that the insurer/self-insurer request an opinion in order to be confident that it is making the best and proper decision.
Therefore, it is in the insurer’s/self-insurer’s best interest to have an experienced and qualified law firm with knowledge of the no-fault field research the issues and prepare an opinion.