OGC Op. No. 09-06-10

The Office of General Counsel issued the following opinion on June 24, 2009, representing the position of the New York State Insurance Department.

Re: Examinations Under Oath of Assignees

Question:

May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?

Answer:

No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath.

Facts:

The question is of a general nature, without reference to specific facts.

Analysis:

Under Section 65-1.1 of the New York Comprehensive Codes, Rules & Regulations (“NYCRR”), Title 11, Part 65 (Regulation 68), which prescribes the No-Fault Mandatory Personal Injury Protection Endorsement, the “Conditions” section contains a “Proof of Claim” provision that is relevant to the inquiry. That regulatory provision reads, in pertinent part, as follows:

upon request by the Company, the eligible injured person or that person’s assignee or representative shall:

* * *

(b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribed the same;…

11 NYCRR § 65-1.1 requires an assignee to appear for an examination under oath. Therefore, if the assignee is a natural person, that person must submit to an examination under oath.

The inquirer asks whether the Insurance Law or the regulations promulgated thereunder require that a corporate entity or partnership submit a particular person specified by the insurer to an examination under oath. The Insurance Law is silent on the matter. And the reference to “any person named by the Company and subscribed the same” in 11 NYCRR § 65-1.1 refers to the person that is to conduct the examination under oath, such as an attorney; it does not refer to the “eligible injured person or that person’s assignee or representative” to be examined. However, nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice.

Nevertheless, pursuant to 11 NYCRR § 65-3.5(c), an insurer “is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” If the insurer is unable to garner the information that it needs from the examination under oath of a person submitted by the assignee corporation or partnership, the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the “items necessary to verify the claim.” In a different context, the Appellate Division, First Department has held that an insured’s refusal to produce those of its employees familiar with a claim for an examination under oath constitutes a breach of cooperation. See Somerstein Caterers of Lawrence, Inc. v. Insurance Company of the State of Pennsylvania, 262 A.D.2d 252 (1st Dept. 1999). Although a duty to cooperate is not expressly included in the no-fault endorsement, the Department’s Office of General Counsel is of the view that the principle enunciated in Somerstein Caterers that a corporation ought to produce employees familiar with the claim for an examination under oath should extend to a no-fault examination under oath of an assignee that is a corporation or partnership.

For further information, you may contact Associate Counsel Alexander Tisch at the New York City Office.