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Martinez v. Lewis11/29/1996
provider there did not examine plaintiff at the request of a third party. Further, Lewis' report was used solely in-house at State Farm; his report was never made public. Additionally, there is no fear of others attaching a great stigma to Lewis' report as it was used only to obtain an opinion about plaintiff's injuries in order for the insurance company to make a determination about no-fault benefits. See Card v. Blakeslee, ___ P.2d ___ (Colo. App. No. 95CA1536, August 22, 1996).
D.
Nor do we find any other ground for imposing a duty of due care on Lewis.
Here, the factors to be considered in determining whether to recognize a duty, see Smith v. City & County of Denver, supra, weigh in favor of not imposing a duty on Lewis. First, the risk involved in this case is that the insurer will receive and rely on an independent medical examiner's unduly unfavorable report, and possibly deny benefits based on this report. Because an insurer must act reasonably and without knowledge of or in reckless disregard for the fact that no reasonable basis existed for denying the claim, Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985), the examinee has recourse against the insurance company in an action for breach of good faith and fair dealing or breach of contract.
The foreseeable harm that might result from the possibility that a physician will fail to diagnose or report a serious health problem is outweighed by the social utility of independent medical examinations.
In addition, there is social utility in allowing no-fault insurance companies to request independent medical examinations performed by physicians of their choice. Insurance companies "must be accorded wide latitude in [their] ability to investigate claims and to resist false or unfounded efforts to obtain funds not available under the contract of insurance." Travelers Insurance Co. v. Savio, supra, 706 P.2d at 1274. Independent medical examinations at the insurance company's request allow it to make informed decisions about whether to deny benefits based on a physical or psychological condition.
When assessing the magnitude of the burden of guarding against the harm and the consequence of placing the burden on the defendant, we should not diminish the value of independent medical examinations. One possible repercussion of imposing a duty of due care upon an independent medical examiner is the risk that experts would be less willing to make independent Conclusions and opinions adverse to the examinee for fear of being subject to liability. See Hafner v. Beck, supra. The social utility of independent medical examinations producing informed decisionmaking and policy by insurance companies outweighs the possible consequences of imposing a duty. Balancing these factors weighs against establishing a duty of due care under the circumstances here.
II.
Plaintiff next contends that the trial court erred in dismissing her claim under the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S. (1992 Repl. Vol. 2) (the Act). Plaintiff specifically argues that Lewis violated § 6-1-105, C.R.S. (1992 Repl. Vol. 2) by knowingly making a false representation as to the characteristics, uses, and benefits of his psychological testing and reports, and that he represented that his services were of a particular standard. She thus contends that Lewis represented that his reports were valid and that State Farm could rely on them in determining its course of action. We conclude that her claim was properly dismissed.
Section 6-1-105(2), C.R.S. (1992 Re
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