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Nationwide General Insurance Company v. Pantaleon S. De Leon Peralta, et al.,
Lower Court Index # 002537/2020
Supreme Court – New York – Onondaga County
In Nationwide General Insurance Company v. Pantaleon S. De Leon Peralta, et al., the insurer commenced an action in the Supreme Court, Onondaga County, seeking a declaration that it had no obligation to pay any claims submitted by or on behalf of the insured since the insured failed to appear for an examination under oath (“EUOs”), thereby breaching a condition precedent to coverage. The insurer moved for summary judgement which was opposed by the insured and various medical providers who took an assignment of benefits from the insured.
In opposition, the insured argued that there was a triable issue of fact as to whether he missed two EUOs and that the insurer should have provided him with more than two opportunities to appear, since he changed counsel and verbally requested an adjournment of the EUO. However, the Supreme Court ruled that the insured failed to provide any legal basis for being given more than two opportunities to appear. Further, the insured offered no evidence that an additional opportunity to appear was requested prior to the second missed EUO. Incoming counsel for the insured alleged that just days prior to the second missed EUO, incoming counsel called the insurer, and its counsel, to advise of their representation and that the EUO needed to be adjourned. While incoming counsel alleges that they were advised that the EUO would be adjourned, the insured was unable to substantiate the allegation. The record was devoid of a letter of representation from incoming counsel or a drop letter from prior counsel during the scheduling phase. The Court held that the failure to provide a letter of representation within 10 days of the second missed EUO severely prejudiced Nationwide.
Despite offering a belated willingness to appear for an EUO, the Court held that affording an additional opportunity for the insured to appear for an EUO would result in a material dilution of the insurer’s rights.
Various other arguments (timeliness of the EUO requests, timeliness of the denials, the need for discovery of the SIU file and whether the insurer must establish willful non-cooperation) often raised, were equally rejected by the Court.