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Martinez v. Lewis11/29/1996
Plaintiff, Yolanda Martinez, appeals the summary judgment in favor of defendant Frederick A. Lewis, Jr., M.D., (Lewis) (now Estate of Frederick A. Lewis, Jr., and Jeanne C. Lewis, by substitution) in which the court held that Lewis, who was retained by defendant State Farm Mutual Automobile Insurance Company to perform independent medical evaluations of plaintiff, owed her no duty in performing the evaluations, and also dismissed her Colorado Consumer Protection Act claim. We affirm.
The following facts are undisputed. Plaintiff was injured in September 1991 when a vehicle driven by an uninsured motorist struck the rear of her car. Plaintiff subsequently sought treatment from a psychologist for cognitive and psychological difficulties she was experiencing and submitted the bills for her psychological treatment to State Farm, her automobile insurer, for payment.
State Farm retained Lewis to conduct, in March 1992, an independent medical examination of plaintiff and to render his opinions to State Farm regarding the nature and extent of her injuries. After reviewing the available medical records, interviewing plaintiff, and running a series of tests, Lewis reported to State Farm that in his opinion plaintiff was "malingering," and that further treatment was unnecessary. Based at least in part on Lewis' recommendation, State Farm decided to deny plaintiff future psychiatric or psychological care under her no-fault automobile insurance policy.
Plaintiff filed this action in September 1993 against State Farm alleging a violation of the no-fault statute, breach of contract, and breach of the duty of good faith and fair dealing. While preparing for trial, counsel for State Farm arranged for plaintiff to see Lewis for another evaluation. After reviewing her medical records, running more tests, and re-interviewing her, Lewis again reported to State Farm that his impressions were that plaintiff was a malingerer. In a third report issued in September 1994, Lewis reconfirmed his previous Conclusions.
Plaintiff then amended her complaint to assert claims against Lewis for professional negligence and breach of the Colorado Consumer Protection Act. She alleged, inter alia, under her professional negligence claim, that Lewis was neither competent nor qualified to select, administer or interpret certain computerized neuropsychological test results, that because of Lewis' negligent misdiagnosis and recommendations, she had not been paid no-fault benefits or received necessary treatment, and that Lewis concealed the fact that he lacked certain qualifications regarding testing upon which he relied.
Lewis moved for summary judgment on both issues attaching to his motion various exhibits, including correspondence between Lewis and State Farm. In response, plaintiff submitted exhibits that included copies of portions of various depositions, correspondence, Lewis' reports, and documentation questioning Lewis' competence in neuropsychological testing. Lewis' motion was granted in its entirety. An order pursuant to C.R.C.P. 54(b) certifying the judgment as final was subsequently entered.
Lewis died during the pendency of this appeal, and the estate of Frederick A. Lewis, Jr., M.D., and the estate's personal representative, Jeanne C. Lewis, were substituted for Lewis.
I.
Plaintiff contends that Lewis owed her a duty to use due care in formulating any opinions, diagnosis, and recommendations which the insurance company would consider in its decision whether to deny no-fault benefits. We disagree.
A.
Summary judgment is a drastic remedy that is warranted only on a clear showing that ther
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