No Cameras Please! No Policy Breach By Insurer Who Refused Video Recording Of Medical Examination

Greenidge v Allstate Insurance Company, 2018 ABQB 266

The recent Alberta Court of Queen's decision, Greenidge v Allstate Insurance Company, determined that an insurer was not in breach of Section B of the Standard Automobile Policy (the "Policy") for discontinuing the insured's benefits after she refused to attend a medical examination unless it was video recorded. The Court held that an insurer can require a medical examination under the terms that the medical practitioner permits which, in this case, included no video recording.

Background

Following a motor vehicle accident, Ms. Greenidge applied for Section B benefits to cover expenses related to treatment of whiplash and TMJ injuries. Pursuant to the Policy, Allstate retained a medical practitioner, Dr. Grade, to perform a medical examination of Ms. Greenidge. Ms. Greenidge requested that the examination be video recorded, but Dr. Grade did not accept videographers. It was Allstate's position that Ms. Greenidge was "under a contractual obligation to attend an appointment for an examination with a duly qualified medical practitioner of [their] choice" and that nothing in the Policy allows for videographers. Ms. Greenidge suggested that she attend with a videographer at her expense, or, alternatively, attend an examination with another medical practitioner who allows video recording. Allstate declined both options, the examination never proceeded and Allstate declined all further coverage to Ms. Greenidge under Section B.

Ms. Greenidge alleged that Allstate breached its duty of utmost good faith by denying her the right to have the examination video recorded. As well, Ms. Greenidge argued that as the examination would not address her TMJ injury, Allstate should not have denied coverage in relation to any TMJ expenses.

Allstate took the position that Ms. Greenidge was asking the Court to find an implied condition in the Policy which would "fetter Allstate's legislated ability to select its chosen medical practitioner", and that that would be "contrary to the purpose and intention of the requirement for an insured to attend a medical examination by a professional chosen by the insurer."

Duty of Good Faith

The Honourable Mr. Justice K.G. Nielsen outlined the duty of utmost good faith in insurance contracts.

The insurer is vulnerable to the insured because it relies on information provided by the insured in order to decide whether to provide insurance coverage as well as in conducting its...