ANILA MUCI V STATE FARM MUTUAL AUTOMOBILE INS COAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 21, 2005
Wayne Circuit Court
LC No. 03-304534-NF
STATE FARM MUTUAL AUTOMOBILE
Official Reported Version
Before: Saad, P.J., and Fitzgerald and Smolenski, JJ.
SAAD, P.J., (dissenting).
I respectfully dissent because Michigan's no-fault law should govern a no-fault insurer's
statutory right to have a claimant submit to a medical examination. Under the Legislature's
comprehensive and detailed framework for medical examinations, an insured must submit to a
mental or physical examination required by the insurer as a condition of payment of a claim for
benefits, and the insurer is statutorily permitted to make reasonable provisions for such
examinations. MCL 500.3151. The insurer's right to this examination does not depend on
whether an insured has filed a lawsuit for failure to pay. In other words, regardless of whether
litigation has commenced, a claimant remains obligated to submit to a medical examination if the
claimant's condition is material to a claim for past or future personal injury protection (PIP)
Indeed, under MCL 500.3142(2), the claimant is obligated to provide "reasonable proof of the
fact and of the amount of loss sustained." Consistently with this section, the necessity of the
medical examination directly relates to whether plaintiff can establish reasonable proof of the
fact and amount of loss. Though plaintiff may have undergone examinations by her own
doctors, an insurer is entitled under § 3151 to have a claimant submit to an independent medical
examination under the reasonable provisions set forth in the insurance agreement. Contrary to
the suggestion by the majority in footnote 4 of its opinion, I do not suggest that plaintiff failed to
submit to any medical examinations before filing her claim. But the record is clear that plaintiff
refused, and continues to refuse, to submit to a § 3151 examination without conditions—
conditions that the Legislature chose not to require.
Plaintiff refused to submit to an examination required by § 3151 and demanded that the
insurer stipulate certain conditions, including, among numerous other requirements, that a third
party may be present during the examination, that the examination may be videotaped, and that
plaintiff may not give the examining doctor an oral account of the accident or her medical
history. When defendant declined to stipulate plaintiff 's terms, plaintiff attempted to litigate
defendant's statutory right under § 3151 by asking the court to impose her conditions on the
insurer pursuant to MCR 2.311. I would hold that MCR 2.311 should not be used preemptively
to circumvent our Legislature's extensive statutory scheme for dealing with medical
examinations under the no-fault act.
The Legislature made the obligation to submit to a § 3151 examination unambiguous and
mandatory by specifically providing that "the person shall submit" to such an examination.
Moreover, unlike MCR 2.311, which conditions physical and mental examinations on a showing
of "good cause" and allows the trial court the discretion to grant and tailor the request, the
Legislature chose not to impose such conditions on the right of a no-fault carrier to require a
claimant to submit to an examination. Plaintiff takes the untenable position that, if a claimant
files suit, an insurer must establish "good cause" for the examination notwithstanding the
Legislature's clear intent that the examination is mandatory under § 3151.
Just as the Legislature did not condition an insurer's right to medical examinations on a
showing of good cause, the Legislature chose not to impose the kind of conditions required by
the trial court here. Rather, the Legislature provided for remedies, as expressed in MCL
500.3153,2 MCL 500.3142, and MCL 500.3148. In these remedial sections, our Legislature
MCL 500.3153 states:
A court may make such orders in regard to the refusal to comply with
sections 3151 and 3152 as are just, except that an order shall not be entered
directing the arrest of a person for disobeying an order to submit to a physical or
mental examination. The orders that may be made in regard to such a refusal
include, but are not limited to:
(a) An order that the mental or physical condition of the disobedient
person shall be taken to be established for the purposes of the claim in accordance
with the contention of the party obtaining the order.
(b) An order refusing to allow the disobedient person to support or oppose
designated claims or defenses, or prohibiting him from introducing evidence of
mental or physical condition.
(c) An order rendering judgment by default against the disobedient person
as to his entire claim or a designated part of it.
imposes penalties of twelve percent on no-fault insurers for overdue payments if the insurer
refuses to pay benefits after reasonable proof of loss is submitted. And, significantly, in MCL
500.3148, our Legislature grants attorney fees to lawyers who advise and represent PIP claimants
who are unreasonably denied benefits, providing that "[t]he attorney's fee shall be a charge
against the insurer in addition to the benefits recovered, if the court finds that the insurer
unreasonably refused to pay the claim or unreasonably delayed in making proper payment."
Thus, to the extent a claimant has a grievance or concern that an insurer is abusing the medical
examination process simply to delay the payment of benefits, the Legislature provides substantial
remedies that also constitute serious disincentives for an insurer to attempt to abuse that process.3
From the foregoing, it is clear that our Legislature dealt comprehensively with both the
question of medical examinations for PIP claimants and the appropriate penalties for an insurer's
unreasonable refusal to pay benefits. Therefore, if a no-fault carrier abuses its right under § 151,
a trial court should use no-fault law and apply the remedies available in §§ 3153, 3142 and 3148
rather than use MCR 2.311 to impose conditions for the taking of such examinations—conditions
our Legislature chose not to impose.4 In this manner, our courts can both honor the Legislature's
role in creating rights and remedies for PIP benefits under Michigan's no-fault automobile
insurance law and protect a claimant's right to PIP benefits.
/s/ Henry William Saad
(d) An order requiring the disobedient person to reimburse the insurer for
reasonable attorneys' fees and expenses incurred in defense against the claim.
(e) An order requiring delivery of a report, in conformity with section
3152, on such terms as are just, and if a physician fails or refuses to make the
report a court may exclude his testimony offered at trial.
Indeed, in her complaint, plaintiff sought to recover under these specific statutory remedies.
Indeed, to the contrary, under MCL 500.3151, the Legislature grants the insurer the right to
make "reasonable provisions" in the policy for such examinations.