STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AN ILLINOIS CORPORATION, PETITIONER,
v.
ALICIA SHEPARD, RESPONDENT
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State Farm sought a writ of certiorari to quash trial court orders requiring it to use a specific expert physician (Dr. Ertag) for an independent medical examination of the plaintiff in an uninsured motorist coverage case. The appellate court granted the petition, holding that while a trial court has discretion to order such examinations and set protective rules including location, it abused that discretion by dictating which expert State Farm must use after already requiring the examination to take place in the plaintiff's preferred county.
The court held that while trial courts have discretion to order Rule 1.360 examinations and impose protective measures including location restrictions, it constituted an abuse of discretion to dictate which expert in the agreed-upon county State Farm must use. Once the court ruled in Shepard's favor on the location issue, State Farm retained the right to select from available qualified experts in that county.
[1] A circuit court departs from the essential requirements of law by requiring a party to use a specific expert for an independent medical examination when the party should…
[2] While a trial court has discretion to order an independent medical examination and to establish protective rules for such examinations, it abuses its discretion by unduly…
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Join FLexlaw to unlock all legal intelligence“a defendant does not have an absolute right to select an expert to perform an examination requested pursuant to Rule 1.360”
Establishes the general principle that trial courts have discretion over expert selection in Rule 1.360 examinations
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Join FLexlaw to unlock all legal intelligenceAlicia Shepard sued State Farm for uninsured motorist coverage following a motor vehicle accident. State Farm requested an independent medical examina…
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PER CURIAM.
State Farm Mutual Automobile Insurance Company (State Farm) petitions this court for issuance of a writ of certiorari quashing that portion of two nonfinal orders requiring State Farm to use Dr. Ertag as its expert witness to conduct an independent medical examination of Alicia Shepard. We grant the petition because the circuit court departed from the essential requirements of law in not permitting State Farm to choose which expert in Collier County would conduct the examination.
Alicia Shepard filed suit against State Farm for uninsured motorist coverage alleging that she sustained injuries as a result of a motor vehicle accident with an uninsured motorist. State Farm filed a request for an independent medical examination pursuant to Florida Rule of Civil Procedure 1.360 requesting that Ms. Shepard submit to examination by a physician located in Lee County.
Ms. Shepard objected to traveling from Collier County where she resides to Lee County. She alleged that her physicians advised her against traveling for long periods of time. At the hearing on Ms. Shepard’s objection, State Farm argued that the qualified physicians available in Collier County were either unavailable or plaintiff oriented. The trial judge entered an order, which was later amended, ordering State Farm to use as its expert Dr. William Ertag located in Collier County if it desired Ms. Shepard to submit to an independent examination.
State Farm does not now challenge the trial court’s order requiring the examination to take place in Collier County. It simply argues that it should have been permitted to choose which expert. Whether to permit a defendant’s requested examination under Rule 1.360 is a matter of discretion. See Toucet v. Big Bend Moving & Storage, 581 So. 2d 952 (Fla. 1st DCA 1991). Further, Rule 1.360(a)(3) permits a trial court to establish protective rules for compulsory examinations. Id. Thus, a defendant does not have an absolute right to select an expert to perform an examination requested pursuant to Rule 1.360. See Looney v. National Railroad Passenger Corp., 142 F.R.D. 264 (D.Mass.1992).
Here, Ms. Shepard’s sole objection to the requested examination was the location. Under the circumstances of this case, the trial court properly ordered that the examination take place in Collier County. See Youngblood v. Michaud, 593 So. 2d 568 (Fla. 4th DCA 1992). Having ruled in Ms. Shepard’s favor on that point, it was an abuse of discretion under the facts of this case not to allow State Farm to select which expert in Collier County would conduct the examination. Accordingly, we quash those portions of the trial court orders requiring State Farm to use Dr. Ertag as its expert.
Petition for writ of certiorari granted.
RYDER, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.
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Wicky v. Crisanto C. Oxonian, 24 So. 3d 571 (Fla. 2d DCA 2009)…body for substances ingested during the year before death). A certiorari petition is the appropriate vehicle for challenging an order granting a compulsory physical examination pursuant to rule 1.360. See State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So. 2d 111 (Fla. 2d DCA 1994); Nobbe v. Nobbe, 627 So. 2d 59 (Fla. 2d DCA 1993). Certiorari relief “is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the pr…
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Leinhart v. Jayme Jurkovich, 882 So. 2d 456 (Fla. 4th DCA 2004)…ted her to use Dr. Silverstein as a second expert examining witness. The issue of whether to permit a defendant’s requested examination under Florida Rule of Civil Procedure 1.360 is a matter of discretion. State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So. 2d 111, 111 (Fla. 2d DCA 1994). We cannot say that the trial court abused its discretion in refusing to permit these late noticed requests for physical examination. Florida Rule of Civil Procedure 1.360(a)(1) provides that “[a] party may request any other…
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Gulf Indus., Inc. v. Jayachandran Nair, 953 So. 2d 590 (Fla. 4th DCA 2007)…nhart v. Jurkovich, 882 So. 2d 456, 460 (Fla. 4th DCA 2004) (stating that whether to permit a defendant’s requested examination under Florida Rule of Civil Procedure 1.360 is a matter of discretion) (citing State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So. 2d 111, 111 (Fla. 2d DCA 1994)). Based on the foregoing, we affirm as to both issues. Affirmed. WARNER and GROSS, JJ., concur. . According to the complaint, Joseph A. Craft, an employee of Gulf, negligently operated a motor vehicle owned by Gulf while…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toucet v. BIG Bend Moving & Storage, Inc., 581 So. 2d 952 (Fla. 1st DCA 1991)
- Roddy v. Roddy, 593 So. 2d 568 (Fla. 4th DCA 1992)