IME doctor not Liable for "Aiding and Abetting" Insurance Co. in Bad Faith Denial of Workers Comp Claim

Federico v. Maric, 574 Ariz. Adv. Rep. 15 (App., Div. I, January 28, 2010) (J. Irvine)

IME DOCTOR FREQUENTLY HIRED BY WORKERS COMPENSATION CARRIER ENTITLED TO SUMMARY JUDGMENT ON COMPLAINT ALLEGING AIDING AND ABETTING INSURANCE COMPANY IN BAD FAITH CONDUCT

Plaintiff sustained multiple injuries on the job and made workers compensation claims as a result. Liberty Mutual, the comp carrier sent him for an independent medical examination before Dr. Zoran Maric. Maric opined that plaintiff had no objective findings, only subjective complaints and needed no further medical treatment. Liberty Mutual then denied plaintiff's workers compensation claim.

Plaintiff then sued Liberty Mutual for bad faith and sued Maric for "aiding and abetting" Liberty in the commission of this tort. Defendant Maric's motion for summary judgment was granted by the trial court and this ruling was affirmed by the Arizona Court of Appeals.

The court first recognized that to prove aiding and abetting the plaintiff must establish:

The primary tortfeasor committed a tort that caused injury to the plaintiff;
The defendant must know the tortfeasor's conduct constituted a breach of duty;
The defendant must substantially assist or encourage the primary torfeasor in achievement of the breach.

Here all of plaintiff's evidence went to the alleged beliefs of Maric concerning the type of people typically sent to him and the very conservative nature of his analysis in most cases. There was no credible evidence he knew his opinions and report on plaintiff would be used by Liberty Mutual to commit the tort of bad faith. In fact, there was no evidence that Maric's report was even necessary let alone "substantially necessary" for Liberty Mutual to commit the alleged tort of bad faith.

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