In a recent case the First Department considered whether failure to appear for an examination under oath (EUO) could result in a denial of no-fault benefits. This case arose out of an automobile accident that occurred on or about April 28, 2011, involving a vehicle insured by his no-fault carrier. The vehicle’s owner and driver assigned his no-fault insurance benefits to defendant medical providers. His no-fault insurance company commenced this action, seeking a declaration that it is not obligated to pay no-fault benefits to defendants, driver and his medical providers, because, among other reasons, the driver failed to complete an EUO, as required by the subject insurance policy. Thus, the no-fault carrier argues that the driver breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover the driver’s no-fault benefits.
Following commencement of this action, the no-fault carrier moved for summary judgment. The lower court granted the no-fault carrier’s motion for summary judgment. The defendants, driver and medical providers, appealed the lower court’s decision.
In support of its motion, plaintiff relied primarily upon the driver’s EUO, which was corroborated by the affidavit of no fault carrier’s investigator who was present at the examination. The EUO established that the driver appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of the driver, the named insured, established a prima facie case that the driver had breached a condition precedent to coverage under the policy.
In opposition, defendants did not dispute what occurred at the EUO. Instead, defendants argued that the transcript of the EUO was inadmissible. The First Department held however, that the EUO transcript of the driver was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission. Even if this were not the case, the affidavit of the no fault carrier’s investigator confirms that the driver did not seek another EUO, a fact the insured does not dispute. Insofar as defendants complain that the n-fault carrier did not seek another EUO, the record demonstrates that the driver, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.
The First Department held that Supreme Court properly granted summary judgment in the no-fault carrier’s favor. The First Department also held that an assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor. Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by the no-fault carrier against the driver, it is available as against defendants, who accepted assignments of no-fault benefits.
This case illustrates just how important it is that all people involved in motor vehicle accidents in New York, comply with all no-fault requirements, including an insurer’s request for an EUO if their policy requires that one be held. Failure to do so can result in denial of your no-fault benefits