Misspelled Name in IME Scheduling Letters Defeats No-Show Defense

Key Takeaways

• In Bay LS Med. Supplies v Chubb, IME scheduling letters addressed to “John Canela” could not be said, as a matter of law, to give sufficient notice to the assignor, Jhonffi Canela.
• The misspelling created an issue of fact on proper notification, so the carrier’s summary judgment motion on its IME no-show defense was properly denied.
• Notably, the plaintiff itself had misspelled the assignor’s name (“Johnfi”) in the summons and complaint — and the defense still folded.
• The IME no-show defense is built on proof of proper notice; the scheduling letters must accurately identify the person who is supposed to appear.

In New York no-fault insurance law, insurance companies frequently schedule Independent Medical Examinations (IMEs) to evaluate the extent of a patient’s injuries and medical necessity of ongoing treatment. When patients fail to appear for these examinations, insurers typically use this as grounds to deny claims or seek summary judgment dismissing lawsuits.

However, as this case demonstrates, even seemingly minor administrative errors can have significant consequences for insurance companies’ IME defenses. The accuracy of patient identification in scheduling letters is crucial, as courts require proper notice to establish a valid no-show substantiated defense. This case serves as a reminder that attention to detail in IME procedures can make or break an insurer’s position.

The Decision

Jason Tenenbaum’s Analysis:

Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50790(U)(App. Term 2d Dept. 2014)

This is the first time I saw a spelling error cause an IME defense to fold. But the error here is significant enough to raise an issue of fact on the issue as to proper notification and a poor case to appeal.

“As it cannot be said, as a matter of law, that the IME scheduling letters addressed to John Canela provided sufficient notice that plaintiff’s assignor, Jhonffi Canela (misspelled “Johnfi” by plaintiff in the summons and complaint), was to appear for the IMEs, the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint.”

The Anatomy of an IME No-Show Defense

The no-fault regulation, 11 NYCRR 65, makes the eligible injured person’s appearance at duly scheduled medical examinations a condition of coverage. The mandatory policy endorsement requires the injured person to submit to examination “as may reasonably be required” by the carrier. When the assignor skips two properly scheduled IMEs, the carrier may deny all claims — which is why the defense is a workhorse of no-fault summary judgment practice.

To win on the defense, the carrier’s proof must cover three things:

1. Proper scheduling — letters that comply with the regulation’s timeframes and that actually tell the right person where and when to appear;
2. Proper mailing — an affidavit from someone with knowledge of the standard office practice used to generate and mail the letters, the same foundation discussed in the firm’s mailing and proof of service materials; and
3. Nonappearance — competent proof, usually from the examining physician or facility, that the assignor failed to show on both dates.

Bay LS is a failure at step one. The mailing may have been flawless and the nonappearance undisputed, but letters addressed to the wrong name do not, as a matter of law, notify the right person.

Why the Spelling Error Mattered

“John Canela” versus “Jhonffi Canela” is not a typo of the transposed-letter variety — it is arguably a different name. The Appellate Term did not hold that the assignor lacked notice; it held only that the carrier could not establish sufficient notice as a matter of law. That nuance matters: the defect created an issue of fact, which is fatal on summary judgment but leaves the defense alive for trial.

There is also an irony the court flagged: the plaintiff itself misspelled the assignor’s name (“Johnfi”) in the summons and complaint. Even so, the burden on the summary judgment motion belonged to the carrier, and its papers had to stand on their own. An adversary’s sloppiness does not cure your own.

The decision fits a broader pattern in no-fault litigation: condition-precedent defenses are policed at the level of paperwork detail. Carriers lose mailing fights over inconsistent affidavits, EUO defenses over scheduling defects, and — here — an IME defense over a name.

Lessons for Carriers and Providers

For carriers: the IME vendor’s intake data must match the claim file. Verify the assignor’s name against the NF-2, the assignment of benefits, and the medical records before letters go out. If a discrepancy surfaces mid-claim, re-serve corrected letters; a clean second set is cheaper than a lost dispositive motion and an appeal with bad facts.

For providers: scrutinize the IME letters in discovery. Name errors, wrong addresses, defective timeframes, and mismatched claim numbers all raise the same question of fact that saved the plaintiff here. The defense that looks airtight on the denial form often unravels in the documents.

For both: remember that the no-show defense is ultimately about notice. Courts will forgive neither side the assumption that “close enough” identification satisfies a condition precedent to coverage.

Frequently Asked Questions

What is an IME no-show defense in New York no-fault cases?

It is a coverage defense based on the injured person’s failure to appear for two duly scheduled independent medical examinations. Because attendance is a condition of the no-fault policy endorsement under 11 NYCRR 65, a properly proven no-show permits the carrier to deny the claims.

What does an insurer have to prove to win on an IME no-show defense?

The carrier must show the IME letters were properly addressed and timely scheduled, that they were actually mailed (usually through proof of a standard office mailing practice), and that the assignor failed to appear on both scheduled dates.

Can a misspelled name really defeat an IME no-show defense?

Yes. In Bay LS Med. Supplies v Chubb, scheduling letters addressed to “John Canela” instead of “Jhonffi Canela” raised an issue of fact as to whether the assignor received sufficient notice, defeating the carrier’s summary judgment motion even though the plaintiff had misspelled the name in its own complaint.

Related Resources

• IME no show results in summary dismissal
• IME no-show substantiated again
• IME no show run amuck
• IME no-shows in New York no-fault insurance cases
• The firm’s Legal Encyclopedia
• No-Fault Defense practice