ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 8583/14
DATE: 2014/12/19

B E T W E E N:

Filippa Mallozzi, Angela Wallace, and
Rosa Fazio

Sandra Train, for the Plaintiffs

Plaintiffs

• and -

Margaret Quaranta

No Appearance

Defendant
State Farm Mutual Automobile Insurance Company
Statutory Third Party

Nathalie V. Rosenthall, for the Statutory Third Party

HEARD: December 17, 2014

The Honourable Justice C. A. Tucker

ENDORSEMENT

Issues

1The issues are:

1. Should the statutory third party be allowed leave to bring a motion after the matter has been set down for trial?

2. If the answer is yes, then should the statutory third party be granted an order to cause the plaintiff Filippa Mallozzi to attend a defence medical examination?

Background

2Ms. Mallozzi claims damages for injuries allegedly sustained in a motor vehicle accident which occurred on November 24, 2010. The statutory third party State Farm Mutual Automobile Insurance Company (“State Farm”) has denied this plaintiff’s claims in its Statement of Defence. Ms. Mallozzi attended an independent psychiatric evaluation with a Dr. Ozersky at the request of the defendant State Farm. The issue is whether State Farm as statutory third party is entitled to its own psychiatric medical at this point in the process.

Positions of the Parties

3It is the argument of the moving party that (a) it only recently became aware of the psychiatric component to the claim of the plaintiff; (b) that it has only requested one defence medical; (c) that it has separate interests from the State Farm defendant represented by separate pleadings, separate offices, separate adjusters and lawyers, and this should have its own entitlement to a defence medical; and finally (d) that fairness depends on the court allowing such. It also asserts that leave to bring this motion should be granted as the issue of the psychiatric condition amounts to an unexpected change in circumstances.

4The responding party denies that leave should be granted as the moving party consented to the matter being set down for trial and there is no substantial change in circumstances. Further, if leave is granted, the motion should be denied because the statutory third party State Farm is not adverse in interests to the defendant State Farm and, accordingly, not entitled to a separate or in effect second psychiatric medical. She points out that the moving party has failed to establish that the medical examination is necessary or relevant to the proceedings. Finally, they point out that there is a formal offer by the statutory third party to pay its policy limits. As such, further medical information is not required for them to be able to properly assess damages in this case. On this point State Farm indicates that the offer should not be a bar to its claim as it could be withdrawn at any time.

Analysis and Decision

5Firstly, I find that there is no reason to allow the motion to proceed. The matters have long been set down for trial. The issue of the “psychiatric” claim was known since at least April 2013. An independent psychiatric report was obtained in May 2013 by the defendant State Farm. The actions have been consolidated, but prior to that, each had been set down for trial with the last on December 23, 2013. Accordingly, I cannot find that an unexpected or substantial change has occurred which would make a refusal to allow leave manifestly unjust.

6Further, although I agree that State Farm wears two hats and is clothed in different roles under different policies, ultimately its interests are that of one company. The right and purpose for a defence medical is to assess damages. The moving party has policy limits and has offered those limits rendering the issue of damages moot from its perspective. The inference that is left is that the medical is in reality being sought for the purpose of the defendant State Farm. I acknowledge that offer could be withdrawn but having made it, I find the moving party has played its hand.

7The “defence” has an independent psychiatric examination. To not allow a second examination in these circumstances is not unfair. Accordingly, I find that leave should not be granted, but if I am incorrect in that decision I find further that the moving party in these circumstances is not entitled to a separate psychiatric medical.

8Accordingly, I dismiss the motion. If the parties are unable to agree upon costs, I may be spoken to provided that such occurs prior to January 6, 2015.

Tucker J.