Federico v. Maric – 1/28/2010
Arizona Court of Appeals Division One Rules That An Aiding and Abetting Bad Faith Claim Made Against a Doctor Performing an Independent Medical Exam for an Insurer Must Include Evidence That the Physician Knew of the Insurer’s Tort and Substantially Assisted or Encouraged the Insurer.
Federico injured his back in a work-related accident. He made a claim for worker’s compensation benefits and, after receiving some treatment from M.B.I. Industrial Medicine (“MBI”), his employer’s workers’ compensation insurer denied Federico’s claim. A year later, Federico told MBI that he had re-aggravated his injury. A month after that, Federico sustained another work-related injury. After the new injury, the insurer requested that MBI retain Dr. Maric to perform an independent medical examination (“IME”) of Federico. Maric concluded in the IME that Federico did not need further medical treatment, and noted that there was no objective evidence of physical pain or injury. He also noted that Federico may be a malingerer. As a result, the insurer denied Federico’s worker’s compensation claim.
Federico sued for bad faith and asserted that MBI and Maric aided and abetted the insurer’s bad faith. The trial court granted Maric’s motion for summary judgment on the aiding and abetting claim and Federico appealed.
The Court of Appeals affirmed in a unanimous opinion. The Court first reviewed Arizona’s aiding and abetting tort, explaining that Federico had to prove, among other things, (1) that Maric had knowledge of the primary tort – the insurer’s bad faith denial of Federico’s claim – and, (2), that Maric “substantially assist[ed] or encourag[ed]” the insurer. The Court held that Federico had not raised a contested issue of material fact on either point.
As to Maric’s knowledge, Federico argued that the trial court could have inferred that Maric knew about the insurer’s bad intent based on various alleged facts, including allegations that Maric improperly examined Federico and that Maric knew his report would negatively impact Federico’s claim. The Court reasoned that such allegations referred only to Maric’s actions and were irrelevant to Maric’s knowledge of the insurer’s actions. As to substantial assistance, the Court noted that Federico had not provided any evidence that Maric assisted the insurer’s actions. Although the insurer may have requested the IME for improper purposes, nothing suggested that the insurer needed the IME to act in bad faith.
Finally, the Court rejected Federico’s argument that the trial court applied the wrong summary judgment standard. Although the judge may have viewed some evidence from Maric’s perspective, that was necessary to assess Maric’s knowledge or implied knowledge of the insurer’s tortious actions.
Judge Irvine authored the opinion; Judges Gemmill and Thompson concurred.