STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. SERMAY (1989)

Petitioner State Farm Mutual Automobile Insurance Company claims it is entitled to an order requiring real party Sharen Sermay to submit to a mental examination because she is seeking emotional distress damages in her first party insurance bad faith lawsuit.   We conclude those damages are associated with Sermay's claims for physical injury damages and consequently deny relief.

Sermay sustained injuries in an automobile accident with an uninsured motorist in January 1985.   She filed a claim with her insurance company (State Farm) and in June 1985 demanded the $25,000 policy limits.   State Farm conducted an independent medical examination of Sermay in July and in August offered Sermay $6,000 to settle her claim.   It did so because it believed Sermay's inability to return to work was due to pre-existing psychological factors not related to her automobile injuries.   However, State Farm paid Sermay's renewed policy limits demand in October, 1985, “so as to avoid costs of defending her threatened lawsuit.”

Sermay filed her lawsuit in January 1986.   It contained causes of action entitled breach of contract, fraud, breach of the covenant of good faith and fair dealing, violation of Insurance Code section 790.03, subdivision (h), and negligent and intentional infliction of emotional distress.   State Farm moved for a mental examination order in October 1987.   It claimed the examination was necessary to demonstrate Sermay's injuries were not a result of her accident and that it had acted reasonably in rejecting her policy limits demand.   It also claimed the examination would help it objectively assess Sermay's correct emotional injuries.   However, before the motion was heard, Sermay dismissed her causes of action for intentional and negligent infliction of emotional distress and stipulated she would not make any claim for emotional distress damages “over and above that normally associated with the injur[ies] claimed.”   Sermay also agreed she would not present expert testimony at trial on the issue of her emotional damages.   The trial court denied the motion in December 1987 on the ground the requested examination was barred by Code of Civil Procedure section 2032, subdivision (d).¹  This court denied State Farm's writ petition on April 14, 1988, as untimely.   In December 1988 State Farm filed a renewed motion to conduct a mental examination of Sermay, urging the same grounds it had argued in its earlier motion.   This time the trial court denied the motion on relevancy grounds;  it concluded an examination today would not be probative of Sermay's mental state in 1985.   This court denied State Farm's renewed writ petition without comment on April 21, 1989.   However, the California Supreme Court granted State Farm's review petition in June and transferred the matter to this court with directions to issue an alternative writ.   The writ has issued but no further briefs have been filed.

Section 2017, subdivision (a), provides, in part:  “Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.   Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”  Section 2032, subdivision (a), authorizes a mental examination where a plaintiff has placed his or her mental health in controversy.   Nevertheless, “[t]he court shall grant a motion for a ․ mental examination only for good cause shown.   If a party stipulates that (1) no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed, and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination of a person for whose personal injuries a recovery is being sought shall not be ordered except on a showing of exceptional circumstances.”   State Farm claims Sermay has placed her mental well-being at issue by filing this lawsuit and baldly asserts “emotional distress is the major component of a bad faith claim.”   It also argues that the section 2032, subdivision (d) exception does not apply because Sermay is not a personal injury plaintiff seeking damages for physical injuries.   We disagree.

Although the discovery rules are to be liberally applied and doubts resolved in favor of allowing discovery (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, 183 Cal.Rptr. 810, 647 P.2d 86), the trial court has discretion to deny discovery in an appropriate case and its decision will not be reversed unless an abuse of discretion is shown.  (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171, 84 Cal.Rptr. 718, 465 P.2d 854.)   State Farm has not shown an abuse of discretion here.

First, Sermay pleads State Farm's conduct caused her “to incur general damages, including the infliction of mental anguish, distress, and suffering, and attorneys' fees, which has caused [her] to become ill, nervous, and upset to the detriment of her general health in an amount not yet ascertained.”   This is a sufficient allegation of “physical injuries” to invoke the protections of section 2032, subdivision (d), and require State Farm to demonstrate “exceptional circumstances” before it is entitled to conduct a mental examination.   State Farm has made no such showing.   Although State Farm would have this court restrict the availability of the subdivision (d) limitation to plaintiffs whose actions are predominately for the recovery of personal injury damages, the statute contains no such restriction.   Indeed, State Farm has itself acknowledged the applicability of the subdivision once physical injuries become an issue in a lawsuit:  “The Reporter's Notes to section 2032, subdivision (d), emphasize this limitation:  ‘This provision prevents a defendant from using a claim for the normal mental distress connected with a party's physical injury as the springboard for the wide-ranging invasion of privacy that a mental examination usually entails.   A plaintiff who stipulates that only such limited discovery is being sought for mental anguish, and that no psychiatric evidence will be presented in support thereof at trial becomes immune from a court-ordered mental examination unless its purpose is vocational rehabilitative testing.’  (Preparing Now For Discovery Under The New Act (Cont.Ed.Bar 1986) p. 161, emphasis added.)”   The “physical injuries” exception is to be read broadly;  no mental examination should take place (over objection) where the emotional distress damages claimed are merely of the sort “usually associated with the [accompanying] physical injuries․”  (Section 2032, subdivision (d).   See also Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173.)

State Farm also failed to demonstrate its entitlement to a mental examination under the lesser “good cause” standard of section 2032, subdivision (d).   Although it claimed the examination would confirm Sermay's lost wages were caused by psychological factors unrelated to her automobile injuries and that its delay in paying benefits was therefore reasonable at the time, it is questionable whether the results of a 1988 or 1989 mental examination would be probative of Sermay's mental state in early 1985.  (Cf. People v. Cruz (1968) 264 Cal.App.2d 350, 357–358, 70 Cal.Rptr. 603.   See generally 1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, § 287, pp. 256–258.)   Indeed, an examination now would be of little value to State Farm because it must demonstrate its 1985 actions were reasonable in light of the information available to it at that time.  (See, e.g., Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 214–215 and fn. 3, 228 Cal.Rptr. 160, 721 P.2d 41.)   In short, the trial court did not abuse its discretion.

The writ is denied and the alternative writ is discharged.   Sermay shall recover her costs.

FOOTNOTES

1.   Subsequent statutory references are to the Code of Civil Procedure.3

SCOVILLE, Presiding Justice.

WALLIN and SONENSHINE, JJ.