IME Default Motions: Why the Insurance Policy Itself Need Not Be in the Record (Insurance Law § 5103)

Key Takeaways

• In Apollo Chiropractic v Praetorian, the Appellate Term, First Department, held a carrier moving on an IME no-show defense does not need to produce the insurance policy to prove the policy contained an IME provision.
• Insurance Law § 5103 deems the mandatory personal injury protection endorsement (11 NYCRR 65-1.1) embodied in every auto policy — so the IME condition exists as a matter of law.
• The carrier’s prima facie case remains two-fold: due mailing of the IME requests and the assignor’s failure to appear on both scheduled dates.
• The shortcut likely would not extend to optional exclusions (such as intoxication), which exist only if actually written into the policy.

Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U)(App. Term 1st Dept. 2010)

The Decision

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 ; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1), since the policy “shall be construed as if such provision[] embodied therein” (Insurance Law § 5103).

Would we have had the same outcome if the defense was the violation of the optional intoxication exclusion or a violation of another optional exclusion? I think not. But, on the basis of an IME or EUO defense, this decision is correct.

The Statutory Framework: § 5103 and the Mandatory Endorsement

Every owner of a motor vehicle registered in New York must carry no-fault coverage, and Insurance Law § 5103 dictates the minimum content of that coverage. The implementing regulation, 11 NYCRR 65-1.1, prescribes the mandatory personal injury protection endorsement word for word — including the condition that an eligible injured person “shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

Critically, the statute provides that a policy is construed as if the mandatory provisions were embodied in it. A carrier cannot write the IME condition out of its policy, and a claimant cannot escape it by pointing to a policy that omits it. The endorsement exists by operation of law.

That is why the Appellate Term reversed the Civil Court’s contrary premise: demanding the actual policy document to prove the existence of an IME provision asks the carrier to prove something the Legislature has already established. The mandatory endorsement is not a fact in dispute; it is law.

Mandatory Conditions vs. Optional Exclusions

The post’s original caveat is where the doctrine gets interesting. The deemed-incorporation rule covers mandatory terms. Optional exclusions — intoxication being the classic example — are different animals. They exist in a given policy only if the insurer actually included them, so a carrier defending on an optional exclusion should expect to produce the policy (or other competent proof of its terms) to establish that the exclusion applies.

The same logic explains why the IME and EUO defenses travel light. Both examinations are conditions found in the regulatory endorsement, and since Stephen Fogel Psychological, appearance at a duly scheduled IME has been treated as a condition precedent to coverage. The carrier’s evidentiary burden is therefore aimed at conduct, not contract: prove the letters went out and prove nobody showed up.

Why This Matters for No-Fault Litigants

For carriers and defense counsel, Apollo Chiropractic removes a paper-chase objection from IME and EUO motion practice. Retrieving a certified copy of the policy for every one of thousands of provider suits is a real administrative burden; this decision confirms it is unnecessary where the defense rests on a mandatory endorsement provision.

For provider counsel, the case redirects the opposition. Attacking the absence of the policy is a dead end on an IME default motion. The productive targets are the carrier’s actual proof: the mailing affidavits behind the scheduling letters, the personal knowledge of the affiant who swears to the no-shows, and the reasonableness and timeliness of the IME requests themselves.

The two-pronged prima facie showing recited in Apollo — due mailing of two requests plus non-appearance at both — remains the working checklist for these motions, and subsequent case law has only sharpened the scrutiny applied to each prong.

Practice Pointers

• Carriers: anchor the motion in the affidavits — standard office mailing practice for the IME letters and a personal-knowledge affirmation of non-appearance from the examining professional. The policy stays in the file.
• Know when the shortcut ends. Defending on an optional exclusion (intoxication, livery use, and the like)? Produce the policy. § 5103 only reads in the mandatory terms.
• Providers: focus opposition on foundation defects in the mailing and no-show proof, or on the reasonableness of the examination requests — not on the missing policy.
• Both sides: remember the IME default is a coverage-vitiating defense; courts demand strict proof precisely because the remedy is retroactive denial of all claims.

Frequently Asked Questions

Does an insurer have to attach the insurance policy to an IME no-show motion in New York?

No. Under Apollo Chiropractic v Praetorian, the mandatory PIP endorsement — including its IME provision — is deemed embodied in every auto policy by Insurance Law § 5103, so the carrier need not produce the policy to establish the IME condition exists.

What must a no-fault insurer prove to win on an IME default?

Two things, with admissible evidence: that the IME scheduling letters were duly mailed to the claimant or assignor, and that the person failed to appear on both scheduled dates. Both showings are routinely tested through affidavit foundations.

Would the same rule apply to an intoxication exclusion?

Probably not. Intoxication and similar exclusions are optional policy terms, not mandatory endorsement provisions, so a carrier relying on one should be prepared to prove the exclusion is actually in the policy.

Related Resources

• Understanding IME No-Shows in New York No-Fault Insurance Cases — the firm’s cluster hub on IME no-show law
• IME No Show: Understanding Confusing Court Interpretations of Duplicate Mailing Requirements
• IME Notification Requirements in New York No-Fault Cases: Address Matching Rules
• A court in Nassau has applied Unitrin through a front door and back door channel
• New York No-Fault Insurance Law
• Browse the firm’s Legal Encyclopedia for more no-fault defenses
• No-Fault Defense practice page

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Legal Update (February 2026): Since this 2010 decision, New York’s no-fault regulations under 11 NYCRR Part 65 have undergone multiple amendments, and procedural requirements for establishing IME defaults may have been modified. Additionally, case law interpreting Insurance Law § 5103 and the sufficiency of prima facie showings for IME non-appearance has continued to evolve. Practitioners should verify current regulatory provisions and recent appellate decisions when addressing IME default defenses.