MUCI v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Docket No. 251438
Court of Appeals of Michigan
Submittеd April 13, 2005, at Detroit. Decided July 21, 2005, at 9:00 a.m.
267 Mich App 431
Leave to appeal sought.
The Court of Appeals held:
1.
2. The trial court did not err by applying
3. The defendant waived its challenge to the condition that allows the plaintiff‘s counsel to be present at the examinations and the condition that allows the examinations to be videotaped by agreeing to those conditions if
Affirmed.
SAAD, P.J., dissenting, would hold that the Legislature made the obligation to submit to an examination under
INSURANCE - NO-FAULT - PERSONAL PROTECTION INSURANCE BENEFITS - MEDICAL EXAMINATIONS.
The provision of the no-fault automobile insurance act that requires a person claiming personal protection insurance benefits to submit to a medical examination authorizеs an insurer to include in a no-fault insurance policy reasonable provisions for a medical examination, including a requirement that the claimant submit to a medical examination by a physician of the insurer‘s choosing; the right to include such a discovery provision in a policy does not give the parties the right to determine how to proceed with discovery, and the trial court has the discretion to impose conditions on the medical examination (
Hewson & Van Hellemont, P.C. (by James F. Hewson), and Gross, Nemeth & Silverman, P.L.C. (by James G. Gross), for the defendant.
Amicus Curiae:
Siemion, Huckaby, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), for Michigan Defense Trial Counsel.
Before: SAAD, P.J., and FITZGERALD and SMOLENSKI, JJ.
FITZGERALD, J. In this action under the Michigan no-fault automobilе insurance act,
FACTS AND PROCEDURAL HISTORY
Plaintiff was involved in a motor vehicle accident on May 15, 2002. Defendant initially paid personal injury protection (PIP) benefits to plaintiff, but subsequently refused to pay benefits. Plaintiff filed the present action on February 11, 2003, alleging that defendant “unreasonably refused” to pay PIP benefits to which she is entitled under the no-fault act, notwithstanding that “reasonable proof has been submitted.” In its affirmative defenses, defendant stated in part that plaintiff “is not presently entitled to any no-fault benefits as she has failed to supply the Defendant with reasonable proof of
On July 10, 2003, defendant filed a motion to compel independent medical examinations pursuant to
The trial court allowed the medical examinations, but imposed several conditions, citing
Defendant argues that
Michigan‘s no-fault act is designed to regulate the insurance of motor vehicles in this state and the payment of benefits resulting from accidents involving motor vehicles. Cruz, supra at 595. PIP benefits are payable as loss accrues.
When the mental or physical condition of a person is material to a claim that has been or may be made for past or future personal protection insurance benefits, the person shall submit to mental or physical examination by physicians. A personal protection insurer may include reasonable provisions in a personal protection insurance policy for mental and physical examination of persons claiming personal protection insurance benefits.5
The person making claim also shall:
a. under the personal protection injury protection . . . coverages:
* * *
(2) be examined by physicians chosen and paid by us as often as we reasonably may require.
This type of provision in an insurance policy falls within the ambit of discovery devices that enable an insurer to discover and eliminate fraud. See, generally, Cruz, supra at 597-599. Such contractual discovery devices are precluded only when they clash with the
In Cruz, supra at 598-601, the Court found that a policy that conditioned the payment of PIP benefits on the plaintiff submitting to an examination under oath (EUO) was void as against public policy to the extent that it imposed a greater obligation on the plaintiff than required by the no-fault act. But the inclusion of the EUO in the insurance policy was not itself deemed inappropriate, even though the no-fault act is silent with respect to EUOs. An EUO was characterized as a “prelitigation, complementary process to that allowed by [
EUOs, or other discovery methods that the parties have contracted to use, are only precluded when they clash with the rules the Legislature has established for such mandatory insurance policies. However, when used to facilitate the goals of the act and when they are harmonious with the Legislature‘s no-fault insurance regime, EUOs in the no-fault context should be viewed no differently than in other
types of policies. In light of this reasoning, we conclude that an EUO that contravenes the requirements of the no-fault act by imposing some greater obligation upon one or another of the parties is, to that extent, invalid. Thus, a no-fault policy that would allow the insurer to avoid its obligation to make prompt payment upon the mere failure to comply with an EUO would run afoul of the statute and accordingly be invalid. However, an EUO provision designed only to ensure that the insurer is provided with information relating to proof of the fact and of the amount of the loss sustained—i.e., the statutorily required information on the part of the insured—would not run afoul of the statute. [Cruz, supra at 598.]
The present case also involves a provision in an insurance policy that provides a discovery device to evaluate plaintiff‘s claim. Defendant did not establish any substantive right under
No Michigan case addresses what constitutes a reasonable provision. But in Cruz, supra at 600 n 15, the Court approved the reasoning in Morris v Aetna Life Ins Co, 160 Ga App 484; 287 SE2d 388 (1981). In Morris, an insured brought suit against the insurer for failure to timely pay benefits under Georgia‘s no-fault insurance law. The insurer delayed payment because the insured refused to submit to an independent medical examination and the insurance policy gave the insurer a right to request a medical examination as part of its investigation of the claim. The Georgia Court of Appeals held that the contraсtual right to request the medical examination was valid, notwithstanding the lack of statutory
In a later case, the Maryland Court of Special Appeals addressed an insured‘s claim, against the same defendant as in this case, that a similar contractual provision that allowed defendant to require a person making a claim to be ” ‘examined by physicians chosen and paid by [State Farm] as often аs [it] reasonably may require’ ” was invalid under the state‘s no-fault law. Huntt v State Farm Mut Automobile Ins Co, 72 Md App 189, 191; 527 A2d 1333 (1987). In Huntt, defendant had reimbursed the insured for medical expenses until October 1985, when it advised the insured that it would not pay any further benefits unless she submitted to a medical examination by a physician that it selected. The insured‘s benefits ended after she refused to submit to the medical examination. The insured then filed suit against defendant, arguing in part that Maryland‘s PIP statute did not require an insured to submit to an examination by a physician chosen and paid for by the insurer. The Maryland court held:
The statutory language requiring construction in this case is found in
Md. Code, supra, Art. 48A, § 544(a) , which provides in part: “All payments of benefits prescribеd under § 539 shall be made periodically as the claims therefor arise and within 30 days after satisfactory proof thereof is received by the insurer. . . .” (Emphasis supplied). . . .Section 539(a) permits an insurer providing loss of income benefits to require, as a condition of receiving such benefits, “that the injured person furnish the insurer reasonable medical proof of his injury causing loss of income.”Section 544(a)(2) permits an insurer to require “reasonable medical proof” when an injured person who received benefits under the coverage(s) described in § 539
seeks additional benefits after a lapse in the period of disability or in medical treatment. . . .
* * *
. . . While § 539 was enacted in order to assure prompt payment of PIP benefits without regard to fault, this does not mean that PIP coverage was intended to provide a PIP claimant with a blank check. Maryland‘s no-fault statute, like those of other states, places a control on inflated or spurious claims by limiting the insurer‘s obligation to payment of “reasonable” expenses for “necessary” services arising from the accident in question. 5 M. Minzer, et al., Damages in Tort Actions § 47.12[2][b] (1987). In our view, it would be impossible in many cases for an insurer to determine whether a PIP claimant‘s expenses were “reasonable” and for “necessary” services if the insurer could not require that the claimant be examined by a physician of its choice. Therefore, we hold that a policy provision permitting an insurer to require that a PIP claimant submit to a physical examination as a condition precedent to payment of benefits is consistent with the statutory mandate in § 544(a) that payment shall be made after the insurer receives “satisfactory proof” of the claim. [Id. at 192-194.]
We are persuaded by the rationale of these cases and conclude that a contractual provision allowing defendant to require an insured making a claim to submit to a medical examination “by physicians chosen and paid by us as often as we reasonably may require” is permissible within the meaning of
Our conclusion does not validate defendant‘s claim that the trial court erred by applying
When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party‘s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be present at the examination. [
MCR 2.311(A) .]
II
Defendant argues that even if
With regard to the first two conditions, defendant waived any challenge to the conditions becausе its attorney agreed to these conditions if the court rule applied. Error requiring reversal must be that of the
With regard to the third condition, defendant challenges paragraphs 14 and 15 of the trial court‘s order, which provide:
14. That Plaintiff will not be required to give any oral history of the accident.
15. That Plaintiff will not be required to give any oral medical history not related to the areas of injuries claimed in this lawsuit.
This Court reviews a trial court‘s decision with regard to a discоvery order for an abuse of discretion. Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 224; 663 NW2d 481 (2002).
A trial court may limit discovery to relevant issues. See Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35-36; 654 NW2d 610 (2002). At the time of defendant‘s motion for the medical examinations, defendant‘s attorney argued that an oral history would assist the examiner to form an opinion whether any injuries were presented and related to the accident. The injuries in this case were broadly characterized as involving closed-head and psychiatric injuries. Plaintiff‘s attorney expressed concern that defendant‘s ex
The final condition, number 15, does not preclude plaintiff from giving an oral medical history related to the “areas of injuries” claimed in the lawsuit. Although the “areas of injuries” might be difficult to analyze when a psychiatric injury is in controversy, defendant has not explained why the stated condition constitutes an abuse of discretion. To the extent that defendant suggests that the examiner would be totally precluded from orally asking plaintiff about her medical history, the language in condition 15 does not support this claim. Defendant has failed to establish that the trial court abused its discretion by including conditions 14 and 15 in the August 25, 2003, order.
Affirmed.
SAAD, P.J. (dissenting). I respectfully dissent because Michigan‘s no-fault law should govern a no-fault insurer‘s statutory right to have a clаimant submit to a medical examination. Under the Legislature‘s comprehensive and detailed framework for medical examinations, an insured must submit to a mental or physical examination required by the insurer as a condition of payment of a claim for benefits, and the insurer is statutorily permitted to make reasonable provisions for such examinations.
Plaintiff refused to submit to an examination required by § 3151 and demanded that the insurer stipulate certain conditions, including, among numerous other requirements, that a third party may be present during the examination, that the examination may be
The Legislature made the obligation to submit to a § 3151 examination unambiguous and mandatory by specifically providing that “the person shall submit” to such an examination. Moreover, unlike
Just as the Legislature did not condition an insurer‘s right to medical examinations on a showing of good cause, the Legislature chose not to impose the kind of conditions required by the trial court here. Rather, the Legislature provided for remedies, as expressed in
disobeying an order to submit to a physical or mental examination. The orders that may be made in regard to such a refusal include, but are not limited to:
(a) An order that the mental or physical condition of the disobedient person shall be taken to be established for the purposes of the claim in accordance with the contention of the party obtaining the order.
(b) An order refusing to allow the disobedient person to support or oppose designated claims or defenses, or prohibiting him from introducing evidence of mental or physicаl condition.
(c) An order rendering judgment by default against the disobedient person as to his entire claim or a designated part of it.
(d) An order requiring the disobedient person to reimburse the insurer for reasonable attorneys’ fees and expenses incurred in defense against the claim.
(e) An order requiring delivery of a report, in conformity with section 3152, on such terms as are just, and if a physician fails or refuses to make the report a court may exclude his testimony offered at trial.
Notes
A court may make such orders in regard to the refusal to comply with sections 3151 and 3152 as are just, except that an order shall not be entered directing the arrest of a person for
In a dispute regarding an insurer‘s right to discovery of facts about an injured person‘s earnings or about his history, condition, treatment and dates and costs of treatment, a court may enter an order for thе discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and shall specify the time, place, manner, conditions and scope of the discovery. A court, in order to protect against annoyance, embarrassment or oppression, as justice requires, may enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requirеs.