State Farm Insurance Company v. Baker, et al. CASE NO. 114CV264810
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 17
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of petitioner State Farm Insurance Company (“State Farm”) to compel a second psychological examination of respondent Stanley Baker (“Mr. Baker”) was argued and submitted. Respondents Stanley Baker and Virginia Baker (collectively “Respondents”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Factual Background

This is an uninsured motorist action. On 8 May 2006, while driving on I-5 south of Lurline Road between the cities of Williams and Colusa, Mr. Baker was forced off the interstate by a semi-trailer truck and crashed into the median barrier of the highway. As a result of the accident, Mr. Baker alleges that he suffered serious injuries, including a traumatic brain injury. The truck driver that caused the accident did not stop and was never identified.

Following the accident, Mr. Baker made a claim under the Uninsured Motorist coverage portion of his automobile insurance policy issued by State Farm. Ultimately, State Farm and Respondents could not reach an agreement as to the damages Mr. Baker sustained as a result of the accident and the parties began preparing for arbitration as contemplated by Mr. Baker’s insurance policy. When the parties reached an impasse as to whether State Farm could require Mr. Baker to submit to a second mental examination, State Farm filed a petition with this Court to open a discovery file under Insurance Code section 11580.2, which grants the superior court jurisdiction over discovery disputes that arise in the context of uninsured motorist arbitrations.

Discovery Dispute

As required by Insurance Code section 11580.2, Mr. Baker’s insurance policy provided that, if he and State Farm could not reach an agreement as to the amount of damages caused by the uninsured motorist, the dispute would be resolved through arbitration. (See Ins. Code, § 11580.2, subd. (f).) In 2008, following the submittal of Mr. Baker’s uninsured motorist claim to State Farm, the parties began proceeding towards mediation and, if mediation was unsuccessful, to arbitration.

In June/July 2008, Mr. Baker underwent a neuropsychological examination conducted by Dr. Bruce Tapper—Mr. Baker’s treating neuropsychologist.

At State Farm’s request, the data from Dr. Tapper’s examination was provided to State Farm’s then expert Dr. Arthur Williams for evaluation. On 14 September 2009, Mr. Baker submitted to a neuropsychological examination conducted by Dr. Williams.

In January 2013, counsel for the parties began negotiating a list of mediators and arbitrators in an attempt to bring the claim to resolution. Based upon their negotiations, the parties agreed to mediate the claim and, should mediation be unsuccessful, to complete arbitration no later than 30 August 2013.

In March 2013, counsel for State Farm indicated that she would follow up with State Farm’s experts to determine if any further examination of Mr. Baker would be required. (Decl. of Brendan Way in Support of Opp. to Mot. to Compel Exam (“Decl. of Way”), Ex. C.) State Farm did not request a follow-up examination throughout the remainder of 2013.

In August 2013, Mr. Baker underwent a follow-up psychological examination with Dr. Tapper.

Mediation was scheduled to occur on 18 September 2013 and, on 17 September 2013, Respondents provided State Farm with a copy of their mediation brief and a copy of Dr. Tapper’s updated report.

The mediation did not proceed as scheduled and, on 26 September 2013, the parties stipulated to waive the five-year time limit within which arbitration is required to occur under Insurance Code section 11580. The parties also rescheduled mediation to take place on 19 November 2013, and the parties further agreed that arbitration could take place, if necessary, sometime thereafter without regard to any time limitations.

The 19 November 2013 mediation was cancelled the week before it was scheduled to take place.

On 25 January 2014, new counsel for State Farm wrote to counsel for Respondents, indicating that he had taken over the handling of the case. In the letter, State Farm’s counsel indicated that, in reviewing the file, “it appears that there are a couple of issues that need to be addressed, prior to putting this case back on for mediation.” (Decl. of Way, Ex. G.) Specifically, counsel indicated that the witness statements and police reports indicate that the semi-trailer that caused the accident did not actually make contact with Mr. Baker’s vehicle and that “[t]here appears to be a question of whether California’s Uninsured Motorist law would have triggered coverage in this matter” given the lack of contact. (Id.) Counsel for State Farm also indicated that State Farm wanted to conduct a follow-up psychological examination of Mr. Baker to further investigate his traumatic brain injury. (Id.)

Counsel for State Farm wrote to counsel for Respondents three times in March of 2014, requesting that Mr. Baker stipulate to a follow-up examination.

On 5 May 2014, having received no agreement from Mr. Baker concerning the follow-up examination, State Farm filed a petition with this Court to open a discovery file under Insurance Code section 11580.2, subdivision (f), which grants the Superior Court jurisdiction to resolve discovery disputes that arise during the course of uninsured motorist arbitration proceedings.

On 13 May 2014, State Farm filed the motion presently before the Court, seeking an order compelling Mr. Baker to attend a follow-up psychological examination. Respondents filed an opposition to the motion on 3 June 2014, and State Farm filed its reply brief on 6 June 2014.

Discussion

State Farm seeks an order compelling Mr. Baker to attend a psychological examination in Seattle, Washington—where Respondents currently reside—to be conducted by clinical psychologist Carol Walser, Ph.D. Respondents oppose the motion, arguing that State Farm was given ample opportunity to conduct a follow-up examination and that the motion “is nothing more than a delay tactic designed to further harass respondents into dropping their uninsured motorist action.” (Opp., p. 1.)

A. Preliminary Matter

Respondents contend that State Farm’s motion is untimely. In support of this contention, Respondents direct the Court to Code of Civil Procedure section 2024.020—which provides that parties have a right to conclude discovery proceedings on or before the 30th day before the date initially set for trial—and section 2024.050—which requires a party seeking additional discovery after the expiration of the time frame set forth in section 2024.020 to seek leave of court to reopen discovery. Respondents point out that the parties stipulated to conduct arbitration no later than 30 August 2013. According to Respondents, the date of 30 August 2013 should be considered the “date initially set for trial” within the meaning of section 2024.020 and, because State Farm failed to conduct the follow-up examination 30 days prior to that date (and because State Farm has failed to file a motion to reopen discovery) the motion to compel the follow-up examination is untimely and should be denied.

For the reasons set forth below, the Court questions whether section 2024.020 is applicable in uninsured motorist proceedings and, assuming that it is applicable, the Court is not persuaded that the date of 30 August 2013 should be considered the date initially set for trial.

The Insurance Code requires all automobile insurance policies delivered in California, and which cover bodily injury liability, to include insurance for amounts the insured is legally entitled to recover as damages for bodily injury or wrongful death from the owner or operator of an uninsured motor vehicle. (Ins. Code, § 11580.2, subd. (a).) The statute expressly applies to “hit-and-run” situations where the owner or operator of the vehicle causing the accident cannot be identified. (Id., § 11580.2, subd. (b).) The statute further provides that “the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration.” (Id., § 11580.2, subd. (f).)

The statute goes on to provide extensive guidance as to the conduct of discovery in instances where the parties are unable to agree upon the amount of damages and proceed to arbitration. First, the statute provides that “arbitration shall be deemed to be a proceeding and the hearing before the arbitrator shall be deemed to be the trial of an issue therein for purposes of issuance of a subpoena by an attorney of a party to the arbitration under Section 1985 of the Code of Civil Procedure.” (Ins. Code, § 11580.2, subd. (f), emphasis added.) In other words, the statute provides that the parties may compel the attendance of witnesses to testify and produce documents at depositions and the arbitration hearing itself. The statute then adopts the Civil Discovery Act in its entirety, with certain limitations, stating as follows: “Title 4 [which is the Civil Discovery Act] (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure shall be applicable to these determinations, and all rights, remedies, obligations, liabilities and procedures set forth in Title 4 . . . shall be available to both the insured and the insurer at any time after the accident, both before and after the commencement of arbitration, if any, with [certain delineated] limitations.” (Id.)

Concerning what the statute refers to as “limitations,” the statute sets forth seven provisions delineating how certain provisions of the Civil Discovery Act are to be implemented. The first provision indicates that, whenever the Civil Discovery Act provides for court intervention (such as with the filing of a motion to compel), “the court that shall have jurisdiction . . . shall be the superior court . . . in and for any county that is a proper county for the filing of a suit for bodily injury arising out of the accident, against the uninsured motorist, or any county specified in the policy or an endorsement . . . as a proper county for arbitration or action thereon.” (Id., § 11580.2, subd. (f)(1) and (2).) In Miranda v. 21ST Century Insurance Company (2004) 117 Cal.App.4th 913, 926, the court of appeal held that this provision provides the superior court with “exclusive jurisdiction to hear discovery matters arising under uninsured motorist arbitrations.” In other words, the arbitrator has no authority to resolve any discovery disputes that may arise between the parties.

Concerning the remaining limitations, the statute alters the timing for when depositions may be taken without leave of court, (Ins. Code, § 11580.2, subd. (f)(3)), states that section 2025.280—governing the affect of deposition notices—is not applicable, (id., § 11580.2, subd. (f)(4)), indicates that “the insured and the insurer shall each be deemed to be ‘a party to the action’ where that phrase is used in Section 2025.260,” (id., § 11580.2, subd. (f)(5)), authorizes the use of interrogatories and requests for admission, (id., § 11580.2, subd. (f)(6)), and concludes by stating that “[n]othing in this section nlimits the rights of any party to the discovery in any action pending or that may hereafter be pending in any court” (id., § 11580.2, subd. (f)(7)).

The above provisions demonstrate that the Legislature expressly addressed situations where the Civil Discovery Act may not apply based upon the use of language applicable in the litigation setting but not applicable in the arbitration setting (e.g., providing that arbitrations are to be considered trials for the purposes of subpoenas and that “a party to the action” includes both the insured and insurer for the purposes of section 2025.260, which governs motions for depositions to be taken at a more distant location than statutorily authorized).

Here, Respondents ask the Court to find Code of Civil Procedure section 2024.020 applicable to uninsured motorist arbitration proceedings. Section 2024.020 provides that “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc. [“CCP”], § 2024.020, subd. (a).) By its language, the provision applies where an action is “initially set for [] trial.” (Id.) The proceeding in this case was never initially set for trial because there will be no trial—it is, by statute, an arbitration proceeding. Moreover, the above discussion demonstrates that, in enacting Insurance Code section 11580.2, the Legislature was aware of the fact that some of the provisions in the Civil Discovery Act would not apply by virtue of the language contained in the provisions—which is geared towards litigation—and the Legislature knew how to rectify that issue by expressly making certain provisions applicable where they otherwise would not apply in the arbitration context.

Respondents recognize that their argument presents a textual problem. They argue, however, that, “[w]hile arbitration is a separate proceeding from a trial, equity dictates that the Court must apply similar logic here.” (Opp., p. 4.) Even if the Court was inclined to agree with this argument, reliance on principles of equity does little in the way of furthering Respondents’ argument. It is the Court’s role to construe, not write, statutes. (Miranda, supra, 117 Cal.App.4th at p. 923; see also County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 446 [“whatever may be thought of the wisdom, expediency, or policy of the [statute], [courts] have no power to rewrite the statute to make it conform to a presumed intention that is not expressed.”].) As a matter of statutory interpretation, the Court is required to presume that the Legislature intended everything in a given statutory scheme, and the Court cannot “read statutes to omit expressed language or to include omitted language.” (Citibank, N.A. v. Tabalon (2012) 209 Cal.App.4th Supp. 16, 20.)

Based upon the above analysis, the Court finds that section 2024.020 of the Code of Civil Procedure does not apply to uninsured motorist actions under Insurance Code section 11580.2, subdivision (f). Thus, State Farm’s motion is properly before the Court.

B. Legal Standard

Section 2019.010 of the Code of Civil Procedure provides that “’[a]ny party may obtain discovery by . . . (d) Physical and mental examinations.” (CCP, § 2019.010, subd. (d).) A party is entitled to discover information about a person’s physical or mental condition if that condition is in controversy. (CCP, § 2032.020, subd. (a).) A party’s mental condition is placed in controversy if the party claims damages for mental or emotional distress that is severe and ongoing. (See Vinson v. Superior Court (1987) 43 Cal.3d.833, 839-40; Acuna v. Regents of Univ. of Cal. (1997) 56 Cal.App.4th 639, 653; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 340.) Allegations of physical or mental injury in the complaint and denial of the injury or the extent of injury places the condition in controversy. (Schlagenhauf v. Holder (1964) 379 U.S. 104, 119.)

If a party desires to obtain discovery by a mental examination, as State Farm does in this case, the party must obtain leave of court. (CCP, § 2032.310, subd. (a).) The court is authorized to grant a motion to compel a mental examination for “good cause shown.” (CCP, § 2032.320, subd. (a).) This generally requires a showing both of (1) relevancy to the subject matter, and (2) specific facts justifying the discovery, i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (See Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 840.) The good cause standard exists to protect the plaintiff’s privacy interests from unnecessary intrusion. (Carpenter v. Sup. Ct. (2006) 141 Cal.App.4th 249, 259.)

C. Analysis

State Farm asserts that good cause exists for the requested examination for three reasons. First, Mr. Baker has placed his mental condition in controversy by seeking damages for mental and emotional injuries. Mr. Baker does not dispute that his mental condition is in controversy. Second, State Farm points out that the last examination taken by a State Farm physician was conducted in September of 2009—almost five years ago—and the information needs to be updated. Third, and in recognition that the information needs to be updated, State Farm points out that Mr. Baker himself had a follow-up examination completed by his own doctor in August of 2013.

Respondents assert that good cause does not exist because State Farm had the opportunity to conduct a follow-up examination within thirty to sixty days of March 2013 and chose not to do so. Respondents’ assertion that Mr. Baker’s claim has been pending for too long does not fall on deaf ears. But there is nothing in the Civil Discovery Act that authorizes a party to unilaterally limit when a party may take another party’s physical or mental examination. The Code requires the moving party to demonstrate good cause—relevancy plus need. For the reasons set forth in State Farm’s moving papers—and summarized in the preceding paragraph—the Court finds that State Farm has carried its burden to show good cause for the examination. Perhaps most important to the Court’s analysis is the fact that Mr. Baker underwent a follow-up examination in August of 2013. Allowing Mr. Baker to proceed to arbitration with recent information, while prohibiting State Farm from obtaining the same, would place the parties on uneven footing in the arbitration.

Code of Civil Procedure section 2032.310 requires that motions for mental examinations “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (CCP, § 2032.310, subd. (b).) Similarly, section 2032.320 requires the court to set forth certain details of the examination in the order granting a motion for a physical or mental examination under section 2032.310. The statute provides that:

An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (CCP, § 2032.320, subd. (d).)

In accordance with section 2032.310, State Farm indicates that Mr. Baker’s examination will be conducted pursuant to the following terms:

I. DATE AND TIME

That the Examination shall take place on June 19, 2014 from 9:00 am to 5:00 p.m. and June 20, 2014 from 9:00 a.m. to 1:00 p.m., or as mutually agreed upon by the parties. Breaks will be permitted as needed.

II. EXAMINER

That the Mental Examination will be conducted by Carol Beebe Walser, Ph.D (“the Examiner”). Dr. Walser is a licensed psychologist, an expert in clinical psychology, neuropsychology and forensic psychology, a Board Certified Forensic Examiner and a Qualified Medical Examiner. . . .

III. LOCATION

The exam will take place at US Legal – Seattle, 1904 Third Avenue, Suite 900, Seattle, WA 98101, (206) 673-4473.

IV. CONDITIONS

A. Cancellations

That Claimant has been notified that the Examiner charges a $1,000.00 cancellation fee for an appointment cancelled less than 2 business days prior to the noticed time of examination.

. . .

B. Audio Recording

The mental examination may be recorded by audio technology pursuant to Code of Civil Procedure section 2032.530(a). Said audio technology will be provided by examiner.

V. NATURE AND SCOPE OF EXAMINATION (Code Civ. Proc. § 2032.220(c))

Claimant stipulated and agrees to the examination being performed in the following manner:

A. That the Examiner will conduct a clinical interview and will conduct a comprehensive psychological evaluation of Examinee. Such examinations will include:

● Wechsler Adult Intelligence Scale-IV (WAIS-IV);

● Wechsler Memory Scale-IV (WMS-IV);

● Rey 15 Item;

● VIP;

● TOMM;

● SIMS;

● Halstead-Reitan Neuropsychological Battery;

● Delis-Kaplan Executive Function System (DKEFS);

● Minnesota Multiphasic Personality Inventory-2-RF (MMPI-2-RF);

● Millon Clinical Multiaxial Personality Inventory-III (MCMI-III)[;]

● Millon Behavioral Medicine Diagnostic MBMD[;]

● Stroop Color and Word Test[;]

● Boston Naming Test[;]

● Rey-Osterrieth Test[;]

● Rey-Auditory Verbal Learning Test (RAVLT)[;]

● Ruff 2 and 7 Test[;]

[]

B. That the Examiner will perform this Mental Examination in order to consider and evaluate Claimant’s traumatic brain injury and any cognitive deficits.

C. That the examination will last approximately 12 hours over the course of two days.

D. That the examination will not include any diagnostic test or procedure that is painful, protracted or intrusive.

(Mem. of Ps & As in Support of Mot. to Compel Examination, pp. 5-7.)

The Court finds that the terms and conditions set forth in State Farm’s memorandum complies with the requirements of Code of Civil Procedure section 2032.310, subdivision (b).

Because the Court finds that State Farm has demonstrated good cause and has complied with the procedural requirements of section 2032.310, the motion to compel Mr. Baker’s examination in accordance with the terms and conditions set for above is GRANTED.

Conclusion and Order

State Farm’s motion to compel the mental examination of Mr. Baker is GRANTED and subject to the terms and conditions set forth herein