Howie, Sacks & Henry LLP – Personal Injury Law – Sandra Trainby 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.

For more information regarding this or related insurance cases, please contact Sandra Train at strain@hshlawyers.com or 416- 361-7573  or Michael J. Henry at 416-361-0889.

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Among the best in Canada

Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.