Case Summary: Greenidge v Allstate Insurance Company
Defence + Indemnity
Where a Section B insurer insists that the insured submit to a medical examination under the policy, the insured is obligated to attend the examination and submit to the protocols of that examiner or face discontinuance of benefits. The insured is not entitled to insist that the examination be video-recorded where the examiner’s protocol does not permit it.
Greenidge v Allstate Insurance Company, 2019 ABCA 52, per Costigan, J.A.
Facts + Issues
The appellant Greenidge insured was injured in a motor vehicle accident and received payments under Section B coverage. Allstate Insurance Company (“Allstate”) asked Greenidge to attend a medical examination, as required by the policy. The policy did not provide for these examinations to be video-recorded, but did allow for a chaperone or interpreter to be present. Specifically, the policy provided as follows:
(4) Medical Reports . . . the Insurer has the right and the claimant shall afford to a duly qualified medical practitioner named by the Insurer an opportunity to examine the person of the Insured’s person when and as often as it reasonably requires while the claim is pending. . . .
The protocol of the medical practitioner selected by Allstate allowed for the patient examinee to be accompanied by a chaperone or an interpreter but did not allow for the examination to be recorded.
Greenidge refused to undergo examination without video-recording, and Allstate subsequently stopped providing payments for Section B under the policy. Greenidge began an action against Allstate seeking a declaration that she was entitled to benefits under the policy. The only issue on appeal was whether Allstate had breached the terms of the policy when it discontinued coverage for further benefits under the policy after Greenidge declined to attend the medical examination unless it was video-recorded.
At trial, the judge found that Allstate had not breached the policy or its duty of utmost good faith as the insurer had the right to have the insured attend a medical examination in order to provide coverage.
Greendige appealed, submitting that by agreeing to attend a video-recorded examination she had afforded Allstate an opportunity for a medical examination to take place within the meaning of the police, and therefore Allstate had no right to discontinue her payments under the policy.
HELD: For the insurer; appeal dismissed.
The Court of Appeal held that the trial judge had not erred in by incorrectly interpreting the phrase “afford an opportunity”.
- The Court held that the policy allowed Allstate to choose the medical examiner and, in doing so, that examiner’s examination protocol. The insured was bound under the policy to attend for examination pursuant to that protocol:
 We agree with the trial judge that Special Provision 4 is clear and unambiguous. It gives the insurer the right to require an examination of the insured’s person by a duly qualified medical practitioner selected by the insurer. The provision does not give the insured the right to decline the examination, select the practitioner or dictate the manner in which the examination will take place. When the insurer selects the practitioner, it consequently selects the practitioner’s examination protocol. The practitioner must be allowed to conduct the examination in accordance with the practitioner’s protocol, otherwise the insurer’s right to select the practitioner may be nullified. The insured is obliged to attend an examination by the practitioner selected by the insurer in accordance with the practitioner’s protocol.
- The Court held that the fact that the Alberta Rules of Court, Rule 5.42(1)(b) allows for the examinee to insist that the examination be video-recorded was not relevant. The Rule does not apply to medical examinations pursuant to the insurance policy, as opposed to one demanded by the Defendant in the context of litigation. The Court held that “Rule 5.42(1)(b) of the Alberta Rules of Court, which permits video-recording in medical examinations conducted under the Rules, was not incorporated by reference into the provision and it would be inappropriate to read Rule 5.42 into the provision”.
The Court held that “[a]n insurer does not breach the duty of good faith by relying on a term of the policy nor is there anything unfair in an insurer insisting that the insured comply with the policy”. (paragraph 10)