Defendant insurer alleges that it timely requested “recorded statements” from plaintiff which it effectively claimed tolled the time by which defendant had to either pay or deny.

The Court said as follows:

The question arises as to whether a request for a recorded statement effectively tolls the time by which an insurer must pay or deny a claim. First, we must be clear about what a “recorded statement” is. Defendant’s letters identified the event as a “statement” and, subsequently, as a “recorded statement”, but did not specify what a recorded statement entailed. It merely stated that defendant wanted a statement from the assignor discussing the accident and the injuries sustained. In addition, defendant did not treat the request for a recorded statement as an EUO. In fact, the defendant’s letters state that asking for a recorded statement does not preclude defendant from requiring EUOs or medical examinations. Thus, defendant implies, if not explicitly states, that a recorded statement is distinct from an EUO.

Furthermore, in an apparent matter of first impression, cases in this state have not yet specified what a “recorded statement” is or how it should be treated. Certain cases used the terms “recorded statement” and “EUO” interchangeably, but did not state whether the event in question was a formal examination in which testimony was given under oath (see Westchester Med. Ctr. v. Govt. Empls., 2009 N.Y. Slip Op 30914[U] [Sup Ct, Nassau County 2009]; see also Am. Commerce Ins. Co. v. Sanford, 2014 N.Y. Slip Op 31108[U] [Sup Ct, N.Y. County 2014] ). The term “recorded statement” also has been used in the context of notice of a claim (see N.Y. Cent. Mut. Fire Ins. Co. v. Bett, 12 AD3d 1024, 1024 [4th Dept 2004] [holding that a recorded statement was not enough notice of claim to the insurance company] ).

Additionally, the relevant regulation does not explicitly state that recorded statements, however they are defined, toll the time to pay or deny a claim (see 11 NYCRR 65–3.5[b] ). Cases construing 11 NYCRR 65–3.5(b) do not suggest that the regulation should be read so broadly as to include recorded statements (see Presbyt. Hosp. v.. Md. Cas. Co., 90 N.Y.2d 274, 285 [1997] [suggesting in dicta that interrogatories, a “distinct request for information”, would not be a sufficient mode of verification]; but see St. Vincent’s Hosp. v. Am. Tr. Ins. Co., 299 A.D.2d 338, 340 [2d Dept 2002] [holding that the statutory period in which insurer was required to pay or deny the hospital’s claim was tolled by a request for patient records that was made by letter rather than by prescribed forms] ). As a result, there appears to be no basis to hold that a request for a recorded statement should toll the time by which defendant must pay or deny a claim.

Defendant also suggests that the “verification requests/delay letters” it mailed in response to Claims 1 and 3 tolled the time to deny the claims. Mr. Miller states that the first verification requests were mailed on December 31, 2014 for Claim 1 and on March 3, 2015 for Claim 3. Although a verification request may be made in letter form, “an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30–day claim determination period” (Ocean Diagnostic Imaging P.C. v. Citiwide Auto Leasing Inc., 8 Misc.3d 138 [A], 2005 N.Y. Slip Op 51314[U], *1 [App Term, 2d & 11th Jud Dists 2005], quoting Melbourne Med. P.C. v. Utica Mut. Ins. Co., 4 Misc.3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; New Way Acupuncture, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 49 Misc.3d 148[A], 2015 N.Y. Slip Op 51706[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015] ). Here, defendant’s request for “verification” generally seeks “the circumstances surrounding the accident; the causal relationship of the claimed injuries sustained in this accident; and whether there is coverage for this claim.” The defendant fails to state with specificity what part of the claim concerned it and the exact information it needs to conduct an investigation. Furthermore, the verification request itself is included at the end of certain Explanations of Benefits, which are congested with other information, in minuscule font. Defendant’s requests for additional information are mere delay letters, which did not effectively toll defendant’s time to pay or deny plaintiff’s claims.


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