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THE INSURER DID NOT EXPLAIN ITS FAILURE TO TIMELY REQUEST THAT THE INSURED UNDERGO A PHYSICAL EXAM AND AN EXAMINATION UNDER OATH; THE STAY OF ARBITRATION IN THIS UNINSURED MOTORIST BENEFITS DISPUTE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer, GEICO, should not have been granted a stay of arbitration in this uninsured-motorist-benefits dispute with its insured, Eser. GEICO did not explain its failure to timely request a physical exam and an examination under oath (EUO):

GEICO had ample time after being notified of Eser’s claim to seek a medical examination and an examination under oath, but failed to do so. Moreover, it denied the claim, apparently concluding that the medical records were sufficient to determine that Eser did not sustain a serious injury. GEICO offered no excuse for its failure to request a physical examination and an examination under oath. Instead, GEICO represented to the Supreme Court that it had requested the examinations, pointing to [three letters]. Contrary to GEICO’s assertion, however, it did not request examinations in those letters, but, rather, merely advised Eser that if it ultimately determined that the other vehicle was uninsured, it “may require [her] to submit to physical examinations and/or Examination(s) Under Oath” … . Since GEICO had ample time to seek this discovery of Eser, but unjustifiably failed to do so, it was not entitled to a stay of arbitration in order to conduct the examinations … . Matter of Government Empls. Ins. Co. v Eser, 2023 NY Slip Op 01999, Second Dept 4-19-23

Practice Point: Here the insurer in this uninsured-motorist-benefits dispute had ample time to request that the insured undergo a physical exam and an examination under oath and did not explain its failure to do so. The stay of arbitration should not have been granted.

 

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