Michigan Court of Appeals; Docket #251438; Published
Judges Saad, Fitzgerald, and Smolenski; 2-1 (Judge Saad dissenting)
Official Michigan Reporter Citation: 267 Mich. App. 431, Link to Opinion 
On June 7, 2007, the Michigan Supreme Court REVERSED the judgement of the Court of Appeals; Link to MSC Summary
STATUTORY INDEXING:
12% Interest Penalty on Overdue Benefits – Nature and Scope [3142(2)(3)]
Obligation of Claimant to Submit to Physician Examination [3151]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 2-1 published opinion, the Court of Appeals held that although State Farm had a statutory right under MCL 500.3151 and the provisions of its insurance contract to have plaintiff submit to an examination by physicians chosen by State Farm, the provisions of the discovery rule in MCR 2.311 allowed the trial court to impose conditions on the medical examinations so long as they were reasonable.
Plaintiff was involved in a motor vehicle accident and submitted a claim for PIP benefits from her insurer, State Farm. When State Farm refused to pay those benefits, an action was commenced. State Farm filed a motion to compel independent medical examinations pursuant to MCL 500.3151 of the No-Fault Act, which provides:
“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.”
The State Farm insurance contract contained the following provision allowing for an examination:
“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. . . .”
Although the trial court allowed the examinations, citing MCR 2.311, the trial court imposed certain conditions on the examination, including allowing plaintiff’s counsel to be present at the examinations, allowing video taping of the examinations, and holding plaintiff will not be required to give an oral history “of the accident” or any oral medical history “not related to the areas of injuries claimed in the lawsuit.”
The Court of Appeals, in a 2-1 opinion, Judge Saad dissenting, held a claimant is obligated to provide “reasonable proof of the fact and amount of loss sustained” pursuant to MCL 500.3142(2). Citing the decision in Cruz v State Farm, 466 Mich 588 (2003), the Court of Appeals held the provision in the State Farm contract provided a discovery device to evaluate plaintiff’s claim. Because MCL 500.3151 authorizes the insurer to include “reasonable provisions” for a medical examination of persons claiming PIP benefits, the touch stone for upholding the provision in the contract regarding the medical examination is one of “reasonableness.” Citing language from other jurisdictions, the court stated it was “persuaded by the rationale of the above 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 MCL 500.3151.” Further, the court held that a “standard of reasonableness” should be applied in a manner that would not clash with Michigan’s No-Fault Act concerning the details of the performance of the examination. Although §3151 authorizes reasonable provisions for medical examinations in insurance policies, the right created by the statute does not give the parties a right to “contract to determine how to proceed with discovery in a civil action.” In the context of plaintiff’s lawsuit, the trial court correctly treated the motion as a discovery device, subject to MCR 2.311. The court ruled that two of the conditions (allowing plaintiff’s counsel to be present and the video taping of the examination) were permissible because the defendant had waived any challenge to those conditions. With regard to the preclusion of the taking of oral history of either the accident or non-related medical history, the court felt these conditions were permissible and not an abuse of discretion by the trial court.
In his dissent, Judge Saad stated MCR 2.311 should not be used preemptively to circumvent our Legislature’s extensive statutory scheme for dealing with medical examinations under the No-Fault Act.
