Each auto insurance policy in Massachusetts requires that after an accident or loss, the named insured or anyone else covered under the policy must cooperate with the insurer in the investigation, settlement and defense of any claim or lawsuit. This mandatory cooperation is a contract obligation which means that the insurer can deny coverage based on the insured or claimant’s failure to cooperate.
Duty to Cooperate
The duty to cooperate includes providing available documentation of the accident and loss, submitting to an examination under oath, and attending an independent medical examination (IME) for persons making a claim for Personal Injury Protection (PIP) benefits, or Uninsured/Underinsured coverage under the policy. The standard Massachusetts automobile policy provides that an insurer has the right to require such a claimant to attend an IME by a medical professional selected by the insurer, at reasonable intervals, and at its expense. Generally, the IME examiner submits a report of the examination to the insurer who then uses the IME results to determine whether to continue or stop paying benefits, even where such results differ from a claimant’s treating physicians. Although the interests of the claimant and the insurer are usually adversarial in this way, insurers routinely denied claimants’ requests to record the IME, or allow an attorney, or other observer, to attend the examination with the claimant in order to have objective verification of the test, and claimants were understandably reluctant to challenge the insurer for fear of violating the cooperation clause of the policy. The standoff continued until recently when a Superior Court judge on a motion for summary judgment concluded that a PIP claimant was entitled to have a chosen observer present during an IME or record the examination.
Ruling in Favor of the Claimant
In that case, the claimant, by advice of counsel, failed to attend two IME’s scheduled by her insurer because the insurer refused to allow her to record the examination or have her attorney present. The insurer then denied PIP benefits based on the claimant’s failure to cooperate and filed for a declaratory judgment in the Superior Court to determine the parties’ rights and obligations. In awarding summary judgment to the claimant, the trial court judge found that the failure to attend the IME was not non-cooperation per se, but was merely evidence of non-cooperation. The judge further determined that because the claimant did not attend the IME on advice of counsel and because the designated doctor allegedly had a history of concluding that claimants were not injured, the insurer had not carried its burden to establish non-cooperation. The judge recognized that the IME was indeed adversarial in nature and concluded that the injured party was not required to unconditionally submit to an examination regardless of the circumstances or without conditions. The judge continued that, under the circumstances, the claimant’s request was reasonable as there was nothing in the record indicating that recording the IME would have impeded the examination or made it less effective. The judge added that the insurer would need to show actual prejudice to justify an objection to the requested accommodation. The insurer has filed a notice of appeal.
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If you want more information about duty to cooperate in car accident claims, contact Attorney Bob Allison today by calling 978-740-9433 or by filling out our online form. You will receive a free consultation to review your claim.