The Rogak Report: 01 November 2004 ** No Fault - EUOs **
- SENDING EUO DEMAND LETTER TO INCORRECT ADDRESS MEANS DEMAND IS NOT
VALID AND 30-DAY RULE IS NOT TOLLED, EVEN IF ATTORNEY GETS IT
Star Medical Services P.C. v. Allstate Insurance Co., NYLJ 11/01/04
(Civil Court, Kings County) (Nadelson, j)
In a case of apparent first impression the Civil Court of Kings
County has held that: (1) an EUO letter sent to a claimant at an
incorrect or incomplete address is not valid and does not toll the 30-
day rule; (2) an EUO letter sent to an attorney who is not
specifically representing the claimant in the no-fault claim (but is
representing him in a related claim such as a BI suit) is not valid
and does not toll the 30-day rule; and (3) testimony of a person who
did not witness the accident cannot form a valid basis for denying no-
In this suit to recover No-Fault benefits, the accident occurred on
March 18, 2003, when the car driven by the son of the insured (who
was covered under the policy) collided with another car. The
assignors were the son and his passenger; the insured himself was not
in the car nor involved in the accident.
The claims for first party benefits were timely submitted by
plaintiff medical provider. After the claims were submitted, Allstate
requested an EUO from the driver. The request for the EUO was sent to
the driver and the attorney representing the driver in a separate
action. The address used to send the request to the driver was
incorrect, and the request was never received by this assignor,
although it was received by his attorney. Allstate did have the
driver's correct address, but left a significant portion of the
address off the envelope. The driver did not appear for the EUO. The
subsequent follow-up request was also mailed to the same erroneous
address, and the driver did not appear for the rescheduled EUO.
Meanwhile, Allstate conducted EUOs of the passenger and the insured.
The passenger stated that she was picked up by the driver around 8
AM, which was their usual custom, and that the accident occurred
shortly thereafter. She further stated that she was removed from the
vehicle by the fire department's EMS team when they arrived on the
scene. The police also were summoned.
The insured stated that he and the driver live at the same address
and work at the same facility. He said that on the morning in
question he left for work at around 6 AM, which was his customary
practice. He further claimed that his son, according to his belief,
usually leaves for work at 7 AM, and arrives at work at around 7:30
AM, but that he and his son do not work in the same area and he does
not actually see his son arrive.
The insured said that he was called about the accident by the
passenger, and arrived at the scene between 10 and 10:30 AM, at which
time he saw the passenger standing outside the car. He said he did
not believe that she had been in the car.
The claims were ultimately denied by Allstate. The denial of benefits
for the driver's treatment was dated August 8, 2003, the claim having
been received on May 15, 2003; the denial of benefits for the
passenger's treatment was dated August 20, 2003, the claim having
been received on May 16, 2003.
Allstate's denial of benefits for the driver was based on his failing
to attend scheduled EUOs, and the denial of benefits for the
passenger was based on Allstate's determination that the injuries
complained of did not result from the accident.
Plaintiff moved for summary judgment, asserting that the denial of
benefits for the driver's treatments was not received within 30 days
after receipt of the claims, and that the denial of benefits for the
passenger's treatments is based on unsubstantiated hypotheses.
Allstate maintained that its requests for verification of the claim
tolled that statutory period, and that the two conflicting EUOs of
the passenger and the insured raise triable issues of fraud in
presenting the claim.
The first issue, stated the Court, is whether a request for an
Examination Under Oath to an injured party's attorney is sufficient
notification to the injured party under New York's No-Fault law and
regulations. This is an issue of first impression under the
The Regulations prescribe the manner in which requests for
verification must be made. However, the regulations only deal
specifically with time limits for making requests and scheduling
EUOs; only tangentially do they indicate how notice is to be sent.
"The sine qua non of any legal request for information is that the
party required to provide such information be given adequate and
appropriate notice," held the Court. "Neither the No-Fault Insurance
Law nor the Regulations promulgated thereunder specify the manner in
which a request or notice be given."
"According to the provisions of the No-Fault Law, requests for
additional verification must be made to the injured party or that
party's assignee. In the instant case, it is undisputed that
Plaintiff, the assignee, did not receive the request for
verification, and so the tolling of the 30 day period must stand or
fall on the appropriateness of the request to the injured assignor."
"Because the notices were never sent to the driver assignor's correct
address, the court finds that Defendant failed to make a legally
valid request for verification within the time period prescribed by
the Regulations, and therefore the 30 day requirement was not tolled
and the denial was untimely."
The court emphasized that the attorney who received the request
represented the assignor in his own personal action for damages, and
did not represent the assignor with respect to the medical provider's
claim for first party benefits. "Therefore, since the representation
involves separate claims and lawsuits, the court cannot assume that
mailing requests to this lawyer is appropriate in this matter, since
the assignor might retain different counsel for the claim under
scrutiny. It has been held that mailing pleadings to a party's
attorney did not constitute valid service when there was no evidence
that the party authorized the attorney to accept such pleadings."
The second issue, stated the Court, is whether a denial of first
party benefits under the No-Fault Law may be based on statements and
suppositions made by a person who lacks personal knowledge of the
Allstate denied the claim for the passenger's treatments because of a
discrepancy between the passenger's statements under oath and the
statements under oath of the insured. "However, as the transcript
clearly indicates, the insured had absolutely no personal knowledge
of the facts, not having been on the scene when the driver started
the vehicle nor at the scene of the alleged accident. His statements
are conclusions he reached based on what he saw after the fact. The
statements he made regarding what he viewed at the scene when he
arrived are not inconsistent with the statements of the passenger."
"Unsubstantiated hypotheses and suppositions are insufficient to
raise a triable issue of an assignor's fraud, and summary judgment
should be granted if the medical provider evidences properly
submitted claims," held the Court. "Defendant's submission of the EUO
of the insured who has no personal knowledge of the facts do not
constitute evidentiary proof in admissible form."
Based on the foregoing, the court granted plaintiff's Motion for