United States District Court, D. Colorado
Y. Wang United States Magistrate Judge
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.
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].
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].
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
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.
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
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.
Pursuant to Defendant's Notice of IME, Owners requests an
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 ...