This article discusses attorney fees as they relate to no-fault litigation and arbitration initiated by a medical provider, where the insurance carrier denied the claim or otherwise failed to pay the claim based on the defense that the injured party violated a policy condition by failing to attend a duly scheduled Examination Under Oath (EUO) or Independent Medical Examination (IME). Where an insurer attempts to utilize either defense, it invokes an often overlooked section of the no-fault regulations that provides for a calculation of attorney fees which may vary from those that practitioners are accustomed to. Under the calculation attorneys are accustomed to, attorney fees are determined by taking 20 percent of the aggregate of the principal and interest amounts awarded. 11 NYCRR 65-4.6(b).
11 NYCRR 65(c)
All no-fault litigation and arbitration of disputed claims takes place pursuant to a policy of insurance, unless the claims are being brought against MVAIC (Motor Vehicle Accident Indemnification Corporation). The no-fault endorsement is mandatory and must be contained in every policy. 11 NYCRR 65-1.1. Even if the endorsement is not in the policy, it is read into the policy, as if it were there. Trizzano v. Allstate Ins. Co., 7 AD3d 783 [2d Dept. 2004]
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