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Insured’s Failure to Appear for Examinations Under Oath Results in Vitiation of Insurance Coverage

The New York Appellate Division, First Department, in Nationwide Affinity Ins. Co. of Am. v. Thomas, 2020 NY Slip Op. 02258 (1st Dep’t April 9, 2020), recently affirmed the granting of summary judgment in favor of an insurance company that sought a declaration that it owed no coverage to insureds who failed to appear for duly noticed examinations under oath (“EUO”), which were timely and duly noticed pursuant to the terms and conditions of the policy. After reviewing how the EUO notices and insurance denial letters were generated, the precise means by which they were sent and to whom they were sent, the basis for the denials and where a detailed record was made of the insureds’ non-appearances, the court held that the insureds’ failure to appear vitiated their insurance coverage, and the appeals court agreed. This decision provides a useful template for understanding what needs to be done in order to create a record that will support vitiating coverage for the failure to comply with an EUO. An insurer must carefully document that the insured received timely notices under the policy and inexcusably refused to appear for examination before seeking to vitiate coverage on this ground.