by Sandra Train, Associate
Mallozzi v. Quaranta, 2014 ONSC 7378
In a recent ruling, Justice Tucker confirmed that insurers are not always entitled to even a first defence medical examination. The plaintiff was seriously hurt when a drunk driver hit her vehicle. Her husband was killed in the accident. In addition to her physical injuries, she suffered serious emotional sequelae.
When the at fault driver was convicted criminally, her insurer, State Farm, made itself a Statutory Third Party. The plaintiff was also covered by State Farm for her underinsured motorist (UIM) coverage.
After a failed mediation, in April, 2013, counsel for the UIM claim sent her for a psychiatric examination. This expert opined that the plaintiff was completely over her grief within nine months. A few months later, the Statutory Third Party offered its remaining limits to the plaintiff. By doing so, State Farm tacitly acknowledged that her injuries were in excess of $200,000.00. However, months later, State Farm (as Statutory Third Party) requested a defence medical, another psychiatric examination. The plaintiff refused to attend.
The pretrial was held prior to the motion to compel the plaintiff to attend the defence medical. In its pretrial memo, the Statutory Third Party confirmed it not only relied on the psychological medical of the UIM carrier, but also agreed he would also be its expert at trial. It also planned to use its own expert if the motion was granted.
Justice Tucker refused the motion as no unexpected or substantial change had occurred to warrant leave to bring the motion. She was also critical of State Farm who, while wearing “two hats” in this litigation, and while “clothed in different roles under different policies,” had the same interest as it was, in fact, the same company. The Judge found that the purpose of the defence medical was to assess damages. Since the limits had already been tendered, the Judge could only infer that this request was in reality being sought because State Farm (as UIM carrier) was unhappy with its expert report.
This case demonstrates that an insurer is not always going to get a defence medical if the facts do not support it. As well, an unexpected or substantial change had to occur before the court would grant leave to bring a motion after it had been set down for trial.