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Examinations Under Oath: Helpful Whether the Insured Appears or Not (NY)

December 21, 2018

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Examinations under oath or “EUOs” are an excellent tool to flesh out the details of a claim which at first glance appears confusing or suspicious. The New York Supreme Court recently issued a reminder that these proceedings are not a mere formality, but a condition precedent for coverage at all.

In <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/12/Nationwide-Affinity-Ins.-Co.-of-Am.-v.-Jamaica-Wellness-Med.-P.C.pdf">Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C</a>.<em>,</em>the claimant submitted bills for medical treatment rendered pursuant to a no-fault insurance policy.  However, the principal of the claimant had previously been found guilty of Medicare fraud, and there was reason to believe he was himself hospitalized at a time when some of the services claimed were rendered.  2017 NY Slip Op 32943(U)

The insurer served the claimant with four notices requesting an EUO, one in each of July, August, September, and October of 2016 and the claimant failed to appear.  The insurer commenced a declaratory judgment action, arguing no coverage whatsoever was owed under the policy for this failure to appear, submitting affidavits explaining the reason for the necessity of the EUO and attempts to serve the claimant with the proper notices.

Judge Greenwood granted the insurer’s motion for summary judgment, ruling the claimant had violated a condition precedent to coverage, contained both within the insurance policies at issue and the relevant regulation governing no-fault insurance, which vitiated the contract as a matter of law.

When in doubt, an EUO can shed important light on critical areas in questions of coverage—and, sometimes, if the insured fails to cooperate, may provide a basis to disclaim coverage in its own right.

Thanks to Nicholas Schaefer for his contribution to this post. Please email <a href="mailto:vpinto@wcmlaw.com">Vito A. Pinto</a> with any questions.

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