Kemper Independence Insurance Company v. Cornerstone Chiropractic, P.C., et al.
The defendants had submitted claims to plaintiff for no-fault benefits arising out of an underlying auto accident. The insurer had denied coverage based upon the claimant’s failure to sign and return the transcripts of their respective examinations under oath. The court viewed signing the returning the transcripts as a condition precedent to coverage and the failure to do so, alone, warranted a denial of benefits under the policy.
In addition, the court concluded that the plaintiff insurer was entitled to summary judgment affirming its denial because the defendants had failed to appear at two scheduled EUOs.
Lex lata: This case could be extremely helpful to insurer’s dealing with non-responsive or uncooperative claimants. Traditionally, obtaining a declaration that an insurer is not required to provide no-fault benefits is difficult. It is common for insurers and counsel to “paper the file” demonstrating trying to demonstrate a claimant’s continued pattern of refusing to appear or cooperate in order to sustain a disclaimer. Insurers can now look to the First Department’s decision as a benchmark for assessing whether a denial based on the failure to respond or cooperate is valid.