CELTIC MED v. PROGRESSIVE INS

• Decision Date: 03 December 2002
• Court: New York District Court
• Parties: CELTIC MEDICAL P.C., as Assignee of JUDITH RATTAN, Plaintiff,<BR>v.<BR>PROGRESSIVE INSURANCE COMPANY, Defendant.

194 Misc.2d 429

755 N.Y.S.2d 209

CELTIC MEDICAL P.C., as Assignee of JUDITH RATTAN, Plaintiff,

v.PROGRESSIVE INSURANCE COMPANY, Defendant.

December 3, 2002.

Delaney & O'Brien, New York City, for defendant.

Sanders & Grossman, Mineola, for plaintiff.

OPINION OF THE COURT

HOWARD S. MILLER, J.

The defendant moves for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's claim. The underlying cause of action is one by plaintiff, a medical service provider, to recover monies due under a no-fault insurance claim from the defendant, who was the insurance company of plaintiff's assignor.

For purposes of this motion, it is uncontested that medical services in the amount of $759.07 were rendered in November and early December of 2001 to Judith Rattan, plaintiff's assignor, for injuries allegedly arising out of an accident on November 24, 2001. At some point within a month or so after the accident, defendant became aware of it and claims to have arranged for a letter to be sent by an independent medical examiner to plaintiff's assignor, scheduling appointments for two medical examinations on January 8 and 12, 2002. Defendant also claims to have summoned plaintiff's assignor for an examination under oath on December 28, 2002, and again on January 16, 2002. Plaintiff's assignor did not attend the examinations, for reasons that have not been disclosed to the court.

After rendering the subject treatment and receiving an assignment of no-fault benefits, plaintiff submitted statutory proofs of the claim, which defendant received on and after January 17, 2002. Defendant thereupon made timely denials on the grounds that its insured had failed to comply with policy conditions, i.e., that the insured must submit to such medical examinations and examinations under oath as the insurer may reasonably require. Defendant moves for summary judgment on the ground that the failure of plaintiff's assignor to submit to medical examinations and examinations under oath means that the insured failed to comply with the conditions in the policy, thereby relieving the insurer of liability as a matter of law.

Unfortunately, there does not seem to be a great deal of pertinent case law on the precise issue submitted to the court, namely whether an insurer can demand examinations of the insured before a formal no-fault claim has been submitted, and whether a failure of the insured to submit to such examinations can constitute a good defense, under the policy, to a no-fault claim. The defendant has submitted a number of arbitration decisions and an opinion by the Office of General Counsel of the New York State Insurance Department. The only pertinent court decision that defendant cites is Matter of Adams v Allstate Ins. Co. (210 AD2d 319 [2d Dept 1994]). In that case, the Appellate Division^[1] declined to reverse an arbitral award in favor of the defendant insurance company, finding that the award had a "rational basis." That is hardly a ringing endorsement of defendant's claim, in this action, to be entitled to summary judgment prior to a hearing on the merits.

The real questions at issue on this motion are whether it is reasonable for an insurer to demand examinations prior to the submission of a no-fault claim, and whether such demands are in derogation of the remedial purposes behind the...