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Vanartsdalen v. Farm Family Casualty Insurance Co.

Superior Court of Delaware

March 13, 2017

ROBERT VANARTSDALEN, Plaintiff,
v.
FARM FAMILY CASUALTY INSURANCE COMPANY, Defendant.

          Submitted: January 31, 2017

         Upon Defendant's Motion for Summary Judgment: GRANTED.

          Jonathan B. O'Neill, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill, P.A., Attorney for Plaintiff Robert Vanartsdalen.

          Aman K. Sharma, Esquire, David C. Malatesta, Esquire, Kent & McBride, P.C. Attorneys for Defendant Farm Family Casualty Insurance Company.

          ORDER

          WHARTON, J.

         This 13th day of March, 2017, upon consideration of Defendant Farm Family Casualty Insurance Company's Motion for Summary Judgment ("Defendant") and Plaintiff Robert Vanartsdalen's Response ("Plaintiff), it appears to the Court that:

         1. Plaintiff is a resident of Grenloch, New Jersey.[1] On November 3, 2014, Plaintiff was involved in a motor vehicle accident with another driver.[2] At the time of the accident, Plaintiff was driving his employer's vehicle, which was registered in Delaware[3] Because the vehicle was registered in Delaware, the vehicle was required to be insured for no-fault, personal injury protection ("PIP") pursuant to 21 Del. C. § 2118. Defendant provided the requisite insurance for the employer's vehicle.[4]

         2. Plaintiff sought PIP benefits from Defendant for personal injuries that he sustained from the accident. Before Plaintiff could receive these benefits under Defendant's insurance policy, however, Plaintiff must "[s]ubmit to an examination, at [Defendant's] expense, by physicians of [its] choice, as often as [it] reasonably require[s]."[5]

         3. By letter dated March 18, 2015, Defendant notified Plaintiff that he was required to attend an independent medical examination ("IME") on April 17, 2015 with a doctor located in Cherry Hill, New Jersey.[6] Plaintiff lives in another municipality approximately fifteen miles away from this location. Pursuant to New Jersey statute, an IME "shall be conducted within the municipality of residence of the injured person. If there is no qualified health care provider to conduct the examination within the municipality of residence of the injured person, then such examination shall be conducted in an area of the closest proximity to the injured person's residence."[7] Accordingly, Plaintiffs counsel objected to Defendant's IME request on the grounds that the doctor's office was located outside of Plaintiff s municipality.[8]

         4. In response to this objection by Plaintiffs counsel, Defendant scheduled an IME with a different doctor.[9] The doctor chosen by Defendant to conduct this IME was also located outside of Plaintiff s municipality.[10] By letter dated April 14, 2015, Plaintiffs counsel renewed his objection that Defendant's IME request did not comply with New Jersey law.[11]

         5. By letter dated July 24, 2015, Defendant requested Plaintiff to attend an IME on August 12, 2015.[12] The doctor performing the IME was located approximately one mile from Plaintiffs residence.[13] However, Plaintiff failed to appear for the IME without providing any justification to Defendant.[14]

         6. By letter dated August 14, 2015, Defendant requested Plaintiff to attend an IME on August 31, 2015 with the same doctor.[15] Plaintiff again failed to appear without providing any justification to Defendant.[16] In both letters, Defendant explicitly stated that Plaintiffs future medical expenses would not be reimbursable if Plaintiff has "2 or more unexcused failures to attend the scheduled examination."[17]

         7. By letter dated October 5, 2015, Defendant advised Plaintiff that he had breached an essential term of the insurance policy by failing to appear for two IMEs. As a result, Defendant denied coverage for Plaintiffs PIP benefits.[18]

         8. On February 1, 2016, Plaintiff filed a Complaint against Defendant. Plaintiff argues that he is entitled to PIP benefits, including medical expenses and lost wages.[19] Plaintiff asserts that Defendant has refused to pay Plaintiffs medical expenses "despite medical confirmation that they are reasonable, necessary, and casually related to the aforesaid accident."[20] Plaintiff therefore seeks general and special damages from Defendant, as well as costs, interests, and attorney's fees.

         9. On December 30, 2016, Defendant filed a Motion for Summary Judgment. Defendant argues that summary judgment is appropriate because Plaintiff did not "comply with an essential condition precedent set forth in the policy" when Plaintiff failed to appear ...


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