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Vario v. First National Insurance Co.

United States District Court, W.D. Washington, Seattle

July 26, 2017





         This matter is before the Court on Defendant First National Insurance Company's (“FNIC”) motion to compel a Rule 35 physical examination of Plaintiff Michael Vario. Dkt. #25. Mr. Vario's suit stems from his involvement in a three-car accident in which one driver was underinsured. Following the accident, Mr. Vario sued, and eventually settled, his claims against the underinsured driver and the insured driver. Mr. Vario subsequently filed an underinsured motorist claim with FNIC, his underinsured motorist insurance carrier; FNIC denied Mr. Vario's claim and Mr. Vario sued FNIC. FNIC now seeks a Rule 35 physical examination to address the issues of causation, the nature and extent of Mr. Vario's injuries, as well as Mr. Vario's current and future prognosis. Id. at 9.

         Mr. Vario does not agree with the scope of the Rule 35 examination FNIC requests, and he argues good cause for a Rule 35 examination does not exist because he previously underwent a Rule 35 examination in his underlying tort case against the two motorists involved in the collision that allegedly injured him.[1] Dkt. #33 at 1-2. Mr. Vario reasons he will be unfairly prejudiced if FNIC can rely on two Rule 35 physical examinations to address the question of causation, and he proposes allowing a Rule 35 examination as long as FNIC's chosen Rule 35 doctor does not rely upon or consider the previous Rule 35 doctor's medical opinion. Id. at 2-3.

         For the reasons discussed herein, Defendant's motion to compel a Rule 35 examination of Mr. Vario is GRANTED IN PART.


         Mr. Vario was involved in a three-car accident on Interstate 5 in Whatcom County in May 2014. Dkt. #37 ¶¶ 9-14. At the time, Mr. Vario was a passenger in his co-worker's car. Id. ¶ 12. The two other drivers involved in the accident were Douglas McAcy and Homadokht Fattahi. Id. ¶¶ 9-14. Mr. Vario alleges Mr. McAcy's car struck the car he was in after Mr. McAcy swerved to avoid hitting Ms. Fattahi's car. Id. ¶¶ 13-14.

         Because of the collision, Mr. Vario alleges he sustained “severe physical and mental pain and suffering and injury, ” and general damages (which includes “impairment of enjoyment of life, disability and disfigurement”). Id. ¶ 15. Mr. Vario also alleges he has had to seek medical treatment, has incurred transportation expenses to attend medical appointments, has incurred lost wages, and has incurred expenses for “essential services.” Id. Mr. Vario alleges that a proximate cause of the collision was Mr. McAcy's negligence. Id. ¶ 10. Mr. McAcy had a liability limit of $50, 000. Id. ¶ 11.

         After the accident, in January 2015, Mr. Vario sued Mr. McAcy and Ms. Fattahi. See Dkts. #1, Ex. A at ¶¶ 14, 16 and #26, Ex. A. As part of Mr. Vario's suit against Mr. McAcy and Ms. Fattahi, Mr. Vario underwent a court-ordered Rule 35 independent medical examination. See Dkt. #26, Ex. H. On February 17, 2016, Dr. James M. Blue, a neurosurgeon, conducted a medical evaluation of Mr. Vario's post-collision injuries and a directed neuro skeletal examination. Id. at 2-3. Dr. Blue opined on whether he believed Mr. Vario's injuries were caused by the May 2014 collision, on whether Mr. Vario had pre-existing conditions, and on Mr. Vario's condition and prognosis at the time of the examination. Id. at 13-14.

         In June 2015, because Mr. Vario's co-worker's underinsured motorist (“UIM”) policy includes passengers as “covered person[s], ” and because Mr. McAcy's liability insurance policy limit was less than the damages Mr. Vario claims Mr. McAcy caused him, Mr. Vario filed a UIM claim with Allstate Fire & Casualty Insurance Company (“Allstate”) for the damages caused by Mr. McAcy. See Dkts. #1, Ex. A ¶¶ 12-14 and #37 ¶¶ 3, 16. Allstate's UIM policy limit was $100, 000. Dkt. #37 ¶ 19. Allstate denied Mr. Vario's UIM claim, and in November 2016, Mr. Vario sued Allstate in the Superior Court of Washington for Whatcom County. See Dkt. #1, Ex. A at 1. Allstate removed Mr. Vario's suit to this Court in December 2016, and FNIC was later granted leave to intervene. See Dkts. #1, #11 at 1, and #37 ¶¶ 3-4.

         Mr. Vario's claims against Allstate were eventually settled, and Allstate, FNIC, and Mr. Vario agreed to a stipulation allowing Mr. Vario to amend his Complaint to name FNIC as a defendant while dismissing Allstate from the matter. See Dkts. #31 at 2-3 and #37 ¶ 5. Mr. Vario's Amended Complaint alleges Mr. McAcy caused him damages in excess of $150, 000, while the underinsured motorist policy issued by FNIC has a coverage limit of $500, 000. Dkt. #37 ¶¶ 6, 16, 18, 19. Because the UIM claim Mr. Vario submitted to FNIC was denied, Mr. Vario brought this action to recover UIM benefits he alleges FNIC is contractually obligated to cover. Id. ¶¶ 20-22.


         If an action pending before the Court places the mental or physical condition of a party in controversy, Rule 35 of the Federal Rules of Civil Procedure allows the Court to order a party to submit to a mental or physical examination “by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a)(1). However, the Court's order “may be made only on motion for good cause and on notice to all parties and the person to be examined, ” and it must “specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2)(A)-(B). Parties requesting a Rule 35 examination therefore must meet the following two requirements before a Rule 35 examination is ordered: (1) establish that the physical or mental condition of a party is “in controversy”; and (2) establish that “good cause” for ordering an examination exists. Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995).

         One purpose of Rule 35 is to “‘level the playing field' between parties in cases in which a party's physical or mental condition is in issue.” Id. However, Rule 35 examinations may be denied where additional relevant information will not be gained by the examination. See Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) (“The ability of the movant to obtain the desired information by other means is also relevant.”). “Because of the intrusive nature of [Rule 35] examinations, they are not granted as a matter of right, but rather as a matter of discretion.” Muller v. City of Tacoma, ...

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