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The Necessity of EBTs: No-Fault Is No Different
By: Jeremy A. Kosin, Esq.

FOR THE DEFENSE

The Necessity of EBTs: No-Fault Is No Different

By: Jeremy A. Kosin, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York

We are all aware of the boom in the number of no-fault claims for first-party benefits that flood the courts’ calendars as well as the insurance company’s difficulties in defending against this extraordinary volume. Many attorneys for medical providers in this specialized field simply want to file a law suit and then settle the matter with little to no “legal” work being done. The plaintiff does not want to go through discovery and definitely does not want to produce their client for an Examination Before Trial.

Most no-fault plaintiffs will not appear for an Examination Before Trial unless there is a court order telling them to appear. However, even when the insurance company files a motion to compel an Examination Before Trial, the no-fault plaintiff inevitably moves for a protective order with an assortment of unpersuasive and irrelevant reasons to support why a protective order should be granted. For example, no-fault plaintiffs often argue that since the suit is a no-fault matter, there is no need for an Examination Before Trial.

Three recent court decisions are often cited when arguing for or against the issue of whether a no-fault plaintiff must appear for an Examination Before Trial. The first is Albatross Medical P.C. a/a/o Gooding et al v. GEICO, 766 N.Y.S. 2d 309 (2003). In Albatross, Judge Walker stated that “neither the CPLR nor the Civil Court Act provides any different procedures for no-fault claims.” (Emphasis added) Furthermore, “the plaintiff having elected to proceed by way of litigation in the courts, must comply with the CPLR.” (Emphasis added) The question of medical necessity is in no way a simple one, especially for a lay juror.

The second recent decision is the case of Ostia Medical P.C. v. GEICO,(NYLJ Jan. 23, 2004, pp. 19). In this case, Judge Asarch limited the insurance company’s right to an Examination Before Trial under the CPLR to those cases: (1) where medical necessity is in issue and the insurance company issued a timely denial of claim form; or (2) where the insurance company denied the claim based upon fraud or a “coverage defense,” thus negating the need for a “timely” denial. In either case, the insurance company is entitled to an Examination Before Trial to obtain relevant information in order to defend the action and is not harassing the no-fault plaintiff, as is often alleged in support of a protective order.

The third relevant case is Vladimir Zlatnick M.D., P.C. a /a/o Abram Aminov v. GEICO, 2003 N.Y. Misc LEXIS 1482 (2003). No-fault plaintiffs often cite this case for the proposition that an insurance company is not entitled to an Examination Before Trial in addition to a demand for interrogatories. However, this argument can be easily overcome in most cases. In Zlatnick, Judge Markey stated that the courts generally require that a party must complete one discovery device before invoking others. Judge Markey focused on the fact that GEICO never objected to the plaintiff’s responses to their demand for written interrogatories, but demanded an Examination Before Trial in each and every no-fault case in which it was sued.


In most cases, however, the no-fault plaintiff’s responses to the insurance company’s demand for written interrogatories are usually defective or, at least, insufficient to allow the insurance company to properly prepare a defense to the litigation. The insurance company simply has to find and raise the defects and then would be entitled to an Examination Before Trial under Zlatnick.

The Ostia decision also discusses the “duplication” of discovery tools. In contrast to Zlatnick, in Ostia, the court held that an insurance company may serve both a demand for written interrogatories and conduct an Examination Before Trial. Although there may be certain interrogatory responses that will be duplicated at an Examination Before Trial, the Examination Before Trial would certainly encompass additional questions on the issue of medical necessity. Many of the issues raised in a no-fault suit cannot be addressed with simple interrogatories.

Based upon each of these three cases, it is clear that a no-fault action should no longer be viewed as “different” from any other civil action. If the no-fault plaintiff wants to be treated differently, then it always has the option of filing its claim under arbitration rather than the civil courts.

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