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The Rogak Report: 09 Mar 2007 ** No Fault - IME No-Shows **

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  • Lawrence Rogak
    PERSONAL KNOWLEDGE OF BOTH IME LETTERS AND THE NO-SHOW ARE REQUIRED IN INSURER S MOTION FOR SUMMARY JUDGMENT Chi Acupuncture, P.C. a/a/o Mark Klass v. Kemper
    Message 1 of 1 , Mar 9, 2007
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      PERSONAL KNOWLEDGE OF BOTH IME LETTERS AND THE NO-SHOW ARE REQUIRED
      IN INSURER'S MOTION FOR SUMMARY JUDGMENT

      Chi Acupuncture, P.C. a/a/o Mark Klass v. Kemper Auto & Home Ins.
      Co., 2007 NYSlipOp 50352(U) (App Term, 2d Dept)

      In this action to recover first-party no-fault benefits for health
      care services rendered by plaintiff to its assignor, defendant
      insurer moved for summary judgment dismissing the complaint on the
      ground that plaintiff's assignor had failed to appear for independent
      medical examinations (IMEs) which had been scheduled prior to
      defendant's receipt of the claim forms. In support of the motion, it
      submitted copies of plaintiff's three proofs of claim, copies of its
      claim denial forms, an affidavit of its no-fault claims examiner
      (which was sufficient to establish both defendant's receipt of the
      claims and the mailing of the claim denials) and an affidavit of an
      employee of Alternative Consulting and Examinations, the company
      which scheduled the IMEs (which was sufficient to establish mailing
      of the IME scheduling letters to the assignor).

      District Court, Nassau, denied defendant's motion for summary
      judgment, finding that there was a triable issue of fact as to
      medical necessity, and this appeal ensued.

      The Appellate Term wrote, "In Stephen Fogel Psychological, P.C. v
      Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d
      Dept, Dec. 19, 2006]), the Appellate Division, Second Department,
      held that 'when an insurer moves for summary judgment to dismiss an
      action based upon an assignor's failure to appear for IMEs which were
      requested prior to the submission of the claim forms, it must
      establish, prima facie, that it mailed the notices of the IMEs . . .
      and that . . . [plaintiff's assignor] failed to appear for the IMEs.'
      In that case, the insurer failed to meet its burden of proof in
      admissible form because it submitted no evidence from anyone with
      personal knowledge of the mailings or of the nonappearances. While
      defendant herein established proper mailing of the IME
      requests, it did not submit evidence in admissible form from anyone
      with personal knowledge of the nonappearances. Since defendant failed
      to meet its burden, its motion for summary judgment was properly
      denied."

      Larry Rogak

      ----------------------------------------------------------------------
      My new book, ROGAK'S NEW YORK NO-FAULT LAW & PRACTICE, is due to be
      released March 29. Look for it on Amazon.com!
      ----------------------------------------------------------------------
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