| Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,PLLC |
| 2011 NY Slip Op 01948 [82 AD3d 559] |
| March 17, 2011 |
| Appellate Division, First Department |
| Unitrin Advantage Insurance Company,Respondent, v Bayshore Physical Therapy, PLLC, et al., Defendants, and MartinBassiur, DDS, Doing Business as NY Craniofacial Pain Management, et al.,Appellants. |
—[*1] Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), forrespondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 1, 2010,which denied defendants-appellants' motion for summary judgment dismissing the complaint,granted plaintiff's cross motion for summary judgment on the complaint, and declared thatplaintiff does not owe coverage for the no-fault claims allegedly assigned to defendants,unanimously affirmed, without costs.
The motion court properly determined that plaintiff insurer may retroactively deny claims onthe basis of defendants' assignors' failure to appear for independent medical examinations (IMEs)requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack ofmedical necessity (see Stephen FogelPsychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). Thefailure to appear for IMEs requested by the insurer "when, and as often as, [it] may reasonablyrequire" (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of acondition precedent to coverage under the no-fault policy, and therefore fits squarely within theexception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins.Cos. (90 NY2d 195 [1997]). Accordingly, when defendants' assignors failed to appear for therequested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss,regardless of whether the denials were timely issued (see Insurance DepartmentRegulations [11 NYCRR] § 65-3.8 [c]; Stephen Fogel Psychological, 35 AD3d at721-722).
It is of no moment that the retroactive denials premised on failure to attend IMEs wereembodied in blanket denial forms, or that they were issued based on failure to attend IMEs in adifferent medical speciality from that which underlies the claims at issue. A denial premised onbreach of a condition precedent to coverage voids the policy ab initio and, in such case, theinsurer cannot be precluded from asserting a defense premised on no coverage (seeChubb, 90 NY2d at 199).
There is likewise no merit to defendants' contention that the IME request notices were [*2]invalid. Plaintiff satisfied its prima facie burden on summaryjudgment of establishing that it requested IMEs in accordance with the procedures and timeframes set forth in the no-fault implementing regulations, and that defendants' assignors did notappear. In opposition, defendants failed to raise an issue of fact that the requests wereunreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15Misc 3d 13, 14-15 [2007]; A.B. Med.Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).
Defendants' argument that plaintiff was required to demonstrate that the assignors' failure toappear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine ofwillfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159[1967]), applies in the context of liability policies, and has no application in the no-fault context,where the eligible injured party has full control over the requirements and conditions necessary toobtain coverage (cf. id. at 168).
Defendants' argument that all IMEs must be conducted by physicians is unavailing. AlthoughInsurance Department Regulations (11 NYCRR) § 65-1.1 (d) states that "[t]he eligibleinjured person shall submit to medical examination by physicians selected by, oracceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require," theregulations permit reimbursement for medically necessary treatment services that are rendered bynonphysicians, such as chiropractors and acupuncturists, as well (see Five Boro Psychological Servs., P.C. vAutoOne Ins. Co., 22 Misc 3d 978, 979-980 [2008]).We have considered defendants' remaining contentions and find them unavailing.Concur—Andrias, J.P., Saxe, Friedman, Moskowitz and Richter, JJ. [Prior CaseHistory: 2010 NY Slip Op 31936(U).]