As previously mentioned in this space, in Unitrin Advantage Ins. Co., v. Bayshore Physical Therapy,1 the Appellate Division, First Department, held that “the failure to appear for IMEs requested by the insurer ‘when, and as often as, [it] may reasonably require’ is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central General Hospital v. Chubb Group of Ins Co.“2
The decision challenged the longstanding premise that a defense based upon a failure to attend reasonably requested Independent Medical Evaluations (IMEs) had to be set forth in a timely denial to be preserved. Over the past few months, there have been major developments with respect to this issue, and yet another chasm has developed between the First and Second departments concerning the litigation of no-fault cases. Indeed, none of the recent cases handed down by the Second Department regarding IME no-show defenses apply the Unitrin standard. Rather, the Second Department still adheres to the maxim requiring such defense to be asserted in a timely denial.
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