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Olsen v. Owners Insurance Co.

United States District Court, D. Colorado

March 1, 2019



          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on Defendant Owners Insurance Company's (“Defendant” or “Owners”) Motion Pursuant to Fed.R.Civ.P. 35 (the “Motion”), filed January 31, 2019. [#50]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated February 1, 2019 [#51]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon careful review of the Motion, the applicable case law, and the entire case file, I GRANT the Motion for the reasons stated herein.


         This litigation arises out of an insurance dispute between Plaintiff Kenneth Olsen (“Plaintiff” or “Mr. Olsen”) and Owners. See [#1; #3]. On or about April 23, 2017, Plaintiff was involved in a traffic collision with a third party, Varejo Manzaneras (“Ms. Manzaneras”). See [#3 at ¶ 5]. Plaintiff sustained injuries because of the traffic collision, requiring medical treatment; Plaintiff alleges his injuries also prohibited from returning to work. See [id. at ¶¶ 10, 15-19, 26-27]. Mr. Olsen, through his employer at the time, was covered under Defendant's uninsured/underinsured motorist insurance policy. See [id. at ¶ 29].

         On or about October 9, 2017, Owners gave permission to Plaintiff to accept Ms. Manzaneras's $25, 000 policy limit. See [id. at ¶ 23]. Believing this money did not cover all his injuries and medical treatment, Plaintiff sought benefits from Owners. See [id. at ¶¶ 32-36]. Over the next several months, Plaintiff continued to request benefits or an update on the status of his benefits and provided medical bills to Owners, but to no avail. See [id. at ¶¶ 32-62]. Plaintiff then initiated this suit, originally filed in the Denver County District Court but removed to this court by Owners, asserting claims against Owners for breach of contract, unreasonable delay or denial of insurance benefits pursuant to Colo. Rev. Stat. § 10-3-1115, and bad faith breach of an insurance contract. See [id. at ¶¶ 69-83].

         Relevant here, the Parties appeared before the undersigned for an informal discovery dispute conference on January 2, 2019, at which the Parties first raised Defendant's request that Plaintiff attend an independent medical examination (“IME”). See [#45]. That same day, this court issued a Minute Order holding that Schultz v. GEICO Casualty Co., 429 P.3d 844 (Colo. 2018) did not preclude Defendant from requesting an IME as a matter of law, but that Defendant had not followed the proper procedures for requesting an IME, thereby prohibiting the undersigned from determining whether good cause existed to order an IME. See [#46]. The instant Motion followed. See [#50].

         Now, Owners seeks an IME of Plaintiff, currently set for “March 21, 2019 with Dr. Kathy McCranie [(the “doctor”)] at 6087 S. Quebec Street Suite 200, Centennial CO 80111.” See [id. at 2]. Owners represents that the Parties have two issues that require court intervention: (1) the permissible scope of the IME and (2) the use of an intake questionnaire. See [id.]. This court provided Plaintiff the opportunity to respond by February 12, 2019. See [#53]. Mr. Olsen did not respond by February 12, but rather filed his Response on February 18, the date provided for Owners' Reply. See [#56; #57]. This court struck Mr. Olsen's untimely Response because he had not moved for nor received an extension of time to file his Response, and directed Mr. Olsen that he could re-file his Response after filing a formal motion requesting an extension that satisfied Rule 6(b)(1)(B)'s excusable neglect standard and after a robust meet and conferral with Owners. See [#59]. To date, Mr. Olsen has not done so. Nonetheless, this court concludes that resolution of the Motion is appropriate presently. See D.C.COLO.LCivR 7.1(d). I therefore consider Defendant's arguments below.


         Rule 35 of the Federal Rules of Civil Procedure provides that a court may order an IME of a party where the party's mental or physical condition “is in controversy.” Fed.R.Civ.P. 35. Rule 35 requires an affirmative showing by the moving party that each condition as to which the examination is sought is really and genuinely in controversy and good cause exists for ordering each particular examination. See Schlangenhauf v. Holder, 379 U.S. 104, 118 (1964). “Good cause” indicates that the showing is more than mere relevance, and is not merely a formality. Id. Rather, the court weighs the need for information against the individual's right to privacy. Id. The decision to grant or deny a Rule 35 examination is committed to the sound discretion of the court. See Simpson v. Univ. of Colorado, 220 F.R.D. 354, 362 (D. Colo. 2004). Because the “in controversy” and the “good cause” requirements often implicate the same factors, the court may consider both issues together. Id. “While Rule 35 should be construed liberally in favor of granting discovery, its application is left to the sound discretion of the court.” Id. (internal citations omitted); see also Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 322 (N.D.Ga. 2000) (noting that the “factors reviewed in determining ‘good cause' often merge with those requirements necessary to find that a plaintiff's mental condition is ‘in controversy'”).


         As mentioned, the Parties do not dispute that Mr. Olsen's physical condition is in controversy. See Stefansson v. Equitable Life Assurance Soc'y of U.S., No. 5:04CV40(DF), 2005 WL 2277486, at *4 (M.D. Ga. Sept. 19, 2005) (holding that an action for benefits withheld and penalties for bad-faith refusal to pay benefits placed the plaintiff's health in controversy). Instead, the Parties dispute the appropriate scope of the IME and the doctor's use of an intake questionnaire. See [#50 at 2]. I consider each issue in turn.

         Scope: Pursuant to Defendant's Notice of IME, Owners requests an IME

entailing a physical examination of and inquiry into related medical matters appurtenant to the examination. The IME will not include imagery or other sampling/testing. It will address the injuries and medical conditions identified and/or referenced in the medical records disclosed in this matter and any other medical issues which [the doctor] deems medically relevant to the same.

[#50-1 at 6]; see also [#50 at 2-3]. Owners contends that Plaintiff objects to the final clause which allows the doctor to determine any other “medically relevant” medical issues, and seeks to limit the scope “to a layperson's understanding of the potential medical conditions at issue . . . [and] those areas of ...

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