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Insured tries to duck medical exam

Insured tries to duck medical exam

June 24
08:13 2020

Insured tries to duck medical exam

Michelle Levine was covered under an automobile liability policy issued by Amica Mutual Insurance Company for the period December 1, 2010 to December 1, 2011. Levine sought medical payments for treatment she claimed resulted from a December 6, 2010, motor vehicle accident.

Amica Mutual sought a declaratory judgment that it had no duty to provide medical payment benefits to Levine because she refused to undergo requested independent medical examinations (IMEs) with a physician selected by the insurer, which prejudiced the insurer’s ability to appropriately evaluate the defendant’s claim for such benefits. The correspondence submitted concerning the motion showed that in 2012 and 2013 Amica Mutual made several requests for Levine to submit to a medical examination, but she never did so.

The court granted Amica Mutual’s motion, and Levine appealed.

On appeal, Amica Mutual asserted that it reasonably requested that Levine submit to an IME after review of the medical bills and reports forwarded by her in late June 2011, in connection with her claim made it clear that Levine had been treated for her medical condition prior to the accident. In September 2011, the insurer requested a records review of Levine’s treatment by a urologist, who concluded that, other than on a temporal basis, it was difficult if not impossible to establish a relationship between the accident and Levine’s subsequent medical course.

When Levine was still being treated a year and a half after the accident and was still seeking medical payment benefits, Amica Mutual made several requests that she attend an IME by the urologist to ascertain whether her treatment was related to the accident.

In July 2012, Levine’s attorney objected to Amica Mutual’s selected medical examiner/urologist on the basis that he had not been shown to be an expert who matched the expertise in interstitial cystitis of Levine’s out-of-state physician.

Amica Mutual contended that Levine did not have a reasonable excuse for failing to attend the IME and outlined a number of conditions that she demanded be satisfied before she would submit to the IME, none of which were afforded to her in the policy, such as (1) furnishing a copy of the doctor’s resume; (2) that she either not fill out written questionnaires or be provided the forms ten days in advance so that counsel could object to certain questions; (3) that she not be required to fill out any authorizations unless they were provided prior to the exam with an explanation of the reasons for the request; and (4) that counsel be permitted to attend and tape record the IME.

Levine argued that (1) the policy provision Amica Mutual sought to enforce was void as being against public policy; (2) the provision was void as being against the informed consent doctrine; (3) the provision was void because the urologist whom Amica Mutual wanted to perform the IME was not a “physician” as defined by the policy; (4) the IME request was not reasonable; (5) the preconditions proposed by Levine were not unreasonable; (6) a fact issue existed as to whether Amica Mutual engaged in bad faith/unclean hands; and (7) a factual dispute existed as to whether the insurer waived its right to claim a breach of the cooperation clause by arbitrarily paying out Med-Pay benefits.

With respect to Levine’s first contention, the court said she had never advised Amica Mutual of her objection to the IME on the basis that it violated public policy. On the second contention, the court said that Connecticut’s informed consent doctrine did not apply to Levine’s situation. The court rejected Levine’s third contention that Amica Mutual had failed to prove that it had requested an examination by a physician, because it was based on the fact that the urologist, apparently inadvertently, had submitted an expired medical license. Levine’s fourth contention likewise was rejected by the court, as was her fifth contention that the preconditions she presented were reasonable. The court also rejected Levine’s sixth contention, that Amica Mutual might have acted in bad faith, stating that bad faith involves a dishonest purpose and did not apply to her situation. Finally, the court rejected Levine’s seventh condition, that Amica Mutual might have waived its right to assert a violation of the policy provision that required her to submit to an IME. The court stated that Levine was explicitly put on notice more than four years earlier that Amica Mutual did not intend to waive its rights under the policy.

Amica Mutual’s motion for summary judgment was granted, and it was not required to provide Med-Pay benefits to Levine under the policy.

Amica Mutual Insurance Company v. Levine—Appellate Court of Connecticut—September 10, 2019—No. AC 40999.

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