Barclay Damon
Barclay Damon

Legal Alert

Insured’s Obligation to Comply with Demand for No-Fault IME

The Appellate Division, First Department, recently held that a no-fault insurer may retroactively deny claims on the basis of its insured’s failure to appear for an independent medical examination, even where it initially denied the claim on lack of medical necessity grounds. Unitrin Advantage Insurance Company v. Bay Shore Physical Therapy, PLLC., 82 A.D.3d 559 (1st Dept. 2011).

The New York State Insurance Department regulations concerning no-fault insurance provide that an insured must appear for an IME as often as reasonably required by the insurer. Therefore, when the insureds failed to appear for the requested IME’s, the insurer had the right to deny all claims retroactive to the date of loss, regardless of whether or not the denials were timely issued. “A denial premised on breach of a condition precedent to coverage, voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage***.” The Court rejected the Defendant’s argument that all IME’s must be conducted by physicians.

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