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Rowe v. Wahnow (N.Y.App.Term 11/19/2009)

November 19, 2009

CLEMENTINE HARRIS ROWE, PLAINTIFF-RESPONDENT,
v.
KEITH WAHNOW, DEFENDANT-APPELLANT. KEITH WAHNOW, THIRD PARTY PLAINTIFF, ANTON A. ROWE, THIRD PARTY DEFENDANT.



Defendant Wahnow appeals from an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), dated March 12, 2008, which denied his motion for summary judgment dismissing the complaint.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Heitler, Shulman, JJ.

No. 570391/08

Order (Julia I. Rodriguez, J.), dated March 12, 2008, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Defendant's examining physicians found that plaintiff had recovered from soft tissue injuries, without neurological or orthopedic disability, and had normal ranges of motion (see Gorden v Tibulcio, 50 AD3d 460 [2008]; Johnson v Paulino, 49 AD3d 379 [2008]; Rossi v Alhassan, 48 AD3d 270 [2008]). Plaintiff's opposition papers, lacking any "objective medical findings based on a recent medical examination" (Thompson v Abbasi, 15 AD3d 95, 98 [2005]), were insufficient to raise a triable issue. Aside from several visits to defendant's examining doctors, and alleged testing and physical therapy (reports of which were not submitted), the record lacks any evidence of plaintiff's treatment for injuries allegedly sustained in this motor vehicle accident. Nor does the record disclose the existence of a triable issue as to whether plaintiff sustained a non-permanent injury that prevented her from performing substantially all material daily activities for at least 90 of the first 180 days following the accident.

In reaching this result, we do not intend to minimize the concerns voiced by the dissent over the use of independent medical examinations conducted in the context of claims for first-party no-fault benefits. However, in our judgment, this is an inappropriate case to authoritatively address those concerns, where both sides have charted their litigation course by affirmatively relying, both below and on appeal, on the same IME reports whose perceived misuse the dissenter now invokes, without input from the parties, as the sole basis for deciding the appeal. "For us now to decide this appeal on a distinct ground that we winkled out on our own would pose an obvious problem of fair play" (Misicki v Caradonna, 12 NY3d 511, 519 [2009]). McKeon, P.J. (dissenting).

At the core of New York's No-Fault automobile insurance scheme is the bright line difference between a claimant's entitlement to first-party benefits, i.e. wages and medical care (basic economic loss), irrespective of fault, and the right of a seriously injured person to bring a lawsuit for damages (see Montgomery v Daniels, 38 NY2d 41 [1975]). The former is the product of a statutory and regulatory design by which a person involved in an automobile accident is able to receive prompt medical attention and treatment in the immediate aftermath of the accident. While the system is not perfect and instances of fraud have been found, there is Insurance Department oversight over the process and its basic aim -- the creation of a simplified and non-adversarial system to provide basic benefits irrespective of fault -- has been achieved. In reality, the standard automobile policy in New York, while remaining a liability policy providing defense and indemnity for suits arising from a vehicular accident, has a distinctly severable feature, medical insurance, making it in actuality, two separate policies in one (see Pommells v Perez, 4 NY3d 566, 571 [2005]). Given this reality, the Court of Appeals in Dermatossian v New York City Transit Authority, 67 NY2d 219, 226 (1986), recognized that "strong policy considerations militate against permitting proof that a claimant's receipt of first-party benefits for an injury covered by no-fault insurance as bearing on a material point in issue in the ensuing lawsuit to recover damages for those injuries."

The matter at bar presents a troubling scenario in which the findings of two physicians, who conducted physical examinations of plaintiff to determine her continued entitlement to first-party benefits,*fn1 were detrimentally used against plaintiff in the within personal injury action. I write separately because I believe that the use of these reports, under such circumstances, violates public policy and the purpose and spirit of New York's No-Fault Law. I would, therefore, preclude their use and affirm Civil Court's denial of summary judgment, albeit for reasons different than those stated by the motion court.

In support of his motion for summary judgment on the ground of lack of serious injury in this automobile personal injury action, defendant offered, as the only admissible evidence of plaintiff's medical condition, affirmed medical reports by Drs. Edward M. Weiland and Dr. S.W. Bleifer, prepared following their independent medical examinations (IME) of plaintiff to determine whether she should continue to receive no-fault benefits.

The acronym IME has several meanings within the jurisprudence of New York. The most common involves the typical personal injury lawsuit, where a party has, by virtue of statute and court rule (see CPLR 3102[a]; 22 NYCRR 202.17), the right to have an alleged injured person examined by a physician of one's choosing for purposes of providing testimony at trial, usually to place at issue the extent and severity of claimed injuries. Within this context, the term independent medical examination, particularly the "independent" prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the "adversarial process" (Bazakos v Lewis, 56 AD3d 15, 18 [2008], revd on other grounds -- NY3d--, 2009 NY Slip Op 05199 [2009]) with Chief Judge Lippman forthrightly observing that "[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

But other permissible uses of IME's are not intended, at least facially, to be part of a partisan exercise; rather, their purpose is to elicit medical information to assist a third party in determining the extent of a person's disability or entitlement to medical care or benefits. Thus, a worker's compensation carrier may conduct an IME of a claimed injured claimant (see 11 NYCRR 65-1.1[d]; 65-3.5[d]), a police department may utilize an IME to determine whether an injured officer can be returned to duty (see Biolandi v City of New York, 184 AD2d 364 [1992]) or, as occurred here, an automobile insurance carrier may utilize an IME to determine whether a claimant is entitled to further care and treatment or other first-party benefits. Notably, the reports of Drs. Weiland and Bleifer were prepared for this purpose, not as part of the discovery process in this litigation. Indeed, there is no indication in the record that defendant ever requested a physical examination of plaintiff in the context of this litigation.

Under regulations promulgated by the Insurance Department (see 11 NYCRR 65.15 [a]), a person involved in an automobile accident who makes claim for no-fault benefits is not to be treated "as an adversary" by an insurer, whose primary charge is to make "prompt and fair payment." Presumably, this mandate requires an insurer to act in good faith in assessing a claimant's injuries and the need for continuing medical services. The physician who conducts an IME to assess continued eligibility for first-party benefits is a vital part of that process, and while his or her relationship to the claimant/examinee is not one of physician/patient, it must ...


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