November 15, 2018

Colorado Supreme Court: Insurer’s Conduct Must Be Evaluated Based Upon Evidence Before it When Coverage Decision Made

The Colorado Supreme Court issued its opinion in Schultz v. Geico Casualty Co. on Monday, November 5, 2018.

Insurance—Bad Faith—C.R.S. § 10-3-1115—Fair Debatability—C.R.C.P. 35—Independent Medical Exams.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to undergo an independent medical examination (IME), pursuant to C.R.C.P. 35, at defendant’s request. The court issued a rule to show cause.

In this case, plaintiff, who was insured by defendant, alleged that defendant insurance company breached its duty of good faith and fair dealing and violated its statutory obligation to evaluate and pay her insurance claim without unreasonable delay. Defendant denied liability, asserting that because the question of medical causation was “fairly debatable” at the time it made its coverage decision, it did not act unreasonably or in bad faith. To establish these defenses, defendant sought an IME of plaintiff, and over plaintiff’s objection, the district court granted that request.

The court concluded that defendant’s conduct must be evaluated based on the evidence before it when it made its coverage decision. Thus, defendant is not entitled to create new evidence to try to support its earlier coverage decision. The court further concluded that the district court abused its discretion when it ordered plaintiff to undergo an IME over three years after the original accident that precipitated this case and a year and a half after defendant had made the coverage decision at issue. The court therefore made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

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