2017-00214503-CU-PT

In Re: Michaela Montgomery

Nature of Proceeding: Motion to Compel Independent Medical Examination and Stay

Filed By: Mackey, Robert T.

Respondent Truck Insurance Exchange’s Motion to Compel Independent Medical Examination (“IME”) of Claimant Michaela Montgomery and to Stay Arbitration in Uninsured/Underinsured Motorist Proceedings is granted.

Respondent seeks an order that Claimant appear for an IME and that the currently scheduled June 15, 2018 Underinsured Motorist Arbitration be stayed for at least 30 days following compliance with the order to submit to the IME.

This is an under-insured motorist case against Claimant’s insurer arising out of an automobile accident that occurred on January 16, 2016. Respondent requested the IME on April 25, 2018 but claimant’s counsel stated a motion to compel would be

necessary. Claimant contended that the notice of IME did not comply with the CCP.

Claimant contends in the opposition that Respondent did not comply with either Insurance Code section 11580.2(o) or the CCP governing IMEs. Claimant contends that Insurance Code has narrowly carved out exceptions to the Civil Discovery Act contained within § 11580.2(f), none of which allow for an exception to the IME requirements in the CCP. Claimant further contends that respondent delayed in seeking an IME when it could have done after December 2017 when the arbitration was ordered. However, in the spirit of cooperation, Claimant, in the supplemental declaration of counsel Hank Greenblatt filed June 6, has offered to submit to an IME examination with Dr. Tung in Sacramento.

While CCP 11580.2(f) does not specifically except the application of CCP 2032.220 from uninsured motorist cases, Insurance Code section 11580.2(o) provides for a procedure to obtain an IME in an uninsured motorist case which, in some respects, conflicts with CCP 2032.220 particularly as to timing. See Rutter Group, Insurance, section 6:2396.6. Section 11580.2(f) does not require diligence and it requires only that the IME be scheduled at least 30 days before the arbitration.

Insurance Code section 11580.2(o) provides:

If an insured has failed to provide an insurer with wage loss information or medical treatment record releases within 15 days of the insurer’s request or has failed to submit to a medical examination arranged by the insurer within 20 days of the insurer’s request, the insurer may, at any time prior to 30 days before the actual arbitration proceedings commence, request, and the insured shall furnish, wage loss information or medical treatment record releases, and the insurer may require the insured, except during periods of hospitalization, to make himself or herself available for a medical examination. The wage loss information or medical treatment record releases shall be submitted by the insured within 10 days of request and the medical examination shall be arranged by the insurer no sooner than 10 days after request, unless the insured agrees to an earlier examination date, and not later than 20 days after the request. If the insured fails to comply with the requirements of this subdivision, the actual arbitration proceedings shall be stayed for at least 30 days following compliance by the insured. The proceedings shall be scheduled as soon as practicable following expiration of the 30-day period.

Respondent requested the IME more than 30 days prior to the arbitration, on April 25, but claimant refused, stating a motion would have to be filed. Section 11580.2(o) permits a request for an IME made at any time prior to 30 days before the scheduled arbitration date of June 15, 2018.

The parties are ordered to meet and confer on the date, time and location of the IME to take place within 20 days of the date of this order. The Underinsured Motorist Arbitration, now set for June 15, 2018, is hereby stayed until 30 days after plaintiff complies with the request for the IME. The Court is not ordering plaintiff to fly to LA and orders that the examination must take place in Sacramento or within 75 miles of claimant’s residence. No showing is made of good cause to have the examination more than 75 miles from claimant’s place of residence, nor any showing that it would be in the interests of justice to do so.