Smart v. State Farm Mutual Automobile Insurance

JAMES S. GETTY, Judge (Retired, Specially Assigned). This appeal arises from the grant of a Motion for Summary Judgment by the Circuit Court for Prince George’s County. State Farm Automobile Insurance Company, the appellee, filed the motion alleging that Barbara Smart, the appellant herein, and State Farm’s insured, materially breached her insurance contract with State Farm by refusing to attend an out-of-state medical examination sought by State Farm. Background On July 12, 1996, appellant, a resident of Prince George’s County, was involved in a collision with a tractor-trailer on Interstate 95 near Fairfax, Virginia.

The accident occurred when the tractor-trailer collided with the rear of appellant’s vehicle, which appellant alleged resulted in serious and permanent injuries to her. Subsequent investigation revealed that the tractor-trailer was uninsured and the New Jersey license tags on the vehicle were untraceable. Appellant’s insurance policy issued by State Farm included uninsured motorist coverage. Appellant submitted to an MRI examination requested by her treating physician on September 9, 1996.

All active medical treatment ended by October 29,1996, and appellant’s physician assigned her an impairment rating of 14%. A follow-up visit to appellant’s physician on March 5, 1997, indicated that her physical condition was unchanged and no further visits were scheduled. She had two herniated discs. On April 24, 1997, State Farm forwarded a letter to appellant’s counsel stating that it had not yet decided whether to demand an independent medical examination (IME) of appel ⁵¹³ lant.

Six days later, State Farm requested an IME to be performed by Dr. Bruce Ammerman in Washington, D.C., on May 23,1997. Appellant objected to the out-of-state examination because Dr. Ammerman was beyond the jurisdiction of the Prince George’s County Court and could not be subpoenaed to attend a trial or to provide medical records for any litigation that might become necessary in Maryland. As a result, the scheduled IME was not performed. On May 29, 1997, appellant filed suit against State Farm alleging breach of contract.

State Farm’s answer was filed July 17,1997, generally denying liability, but not asserting any material breach of the terms of the contract. By letter dated July 31, 1997, appellant’s counsel inquired if State Farm wanted an IME now that suit had been filed. State Farm responded on October 20, 1997, nearly three months after appellant’s inquiry, by issuing a reservation of rights letter based solely on appellant’s pre-suit refusal to attend an out-of-state IME. State Farm then scheduled, by letter dated October 27,1997, an IME before Dr. Ammerman on November 24 in the District of Columbia; that appointment was changed for scheduling reasons to December 11,1997.

On December 3, 1997, appellant notified State Farm that she would submit to the examination by Dr. Ammerman in the District of Columbia on December 11 only if the physician would expressly agree to submit to the jurisdiction of the Maryland court. State Farm refused the offer, and on December 31 the insurer filed a Motion for Summary Judgment, alleging a material breach of the contract concerning both the IMEs which appellant had refused to attend. 1 Appellant filed a Motion for Protective Order, pursuant to Md. Rule 2-423, on March 10,1998, requesting that the circuit court set the time, date, and place for an IME of appellant by a doctor “both licensed and employed” in the State of Maryland. In the motion, appellant’s counsel cited as cause for the ⁵¹⁴ motion Dr. Ammerman’s alleged extensive defense litigation practice and counsel’s belief that the physician would not obey a subpoena from the circuit court, or voluntarily submit to the jurisdiction of the Maryland court. State Farm opposed appellant’s motion, citing from the policy language that “the person making claim also shall ... be examined by physicians chosen and paid by us as often as we reasonably may require.” The plain meaning of the terms governing an IME, according to State Farm, prohibits appellant from “restricting the Defendant’s choice of doctor in this case.” Additionally, State Farm alleged that Md. Rule 2-428 does not limit a party’s choice of physician as appellant suggests.

The Rule provides: When the mental or physical condition ... of a party ... is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner.... [T]he order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusion and the testimony at trial by the examiner, the payment of expenses, and any other related matters. This case then proceeded along different paths.

Two different judges made separate and inconsistent rulings four days apart. On March 30, Judge Thomas P. Smith considered appellant’s Rule 2-423 motion and State Farm’s response and granted the motion without a hearing, but none was requested. His Order provided that State Farm had a right to choose the physician, but that the examination must take place in Maryland by a doctor licensed and employed in Maryland. Judge Smith’s Order was not docketed, however, until April 8.

The docket entries show that copies of the Order were mailed to counsel by the Clerk’s Office on that date. ⁵¹⁵ On April 3, Judge E. Allen Shepherd conducted a hearing on State Farm’s Motion for Summary Judgment. Apparently, at the time of the second hearing, neither of