Silbernagel v. Westfield Insurance Company

Background

Nathan Wayne Silbernagel sought underinsured-motorist benefits from Westfield Insurance Company after a September 2018 automobile accident. He alleged serious and permanent injuries and related medical expenses, pain and suffering, lost wages, and loss of enjoyment of life. The case concerns whether his insurance policy covers those losses.

Westfield moved under Federal Rule of Civil Procedure 35 to require Silbernagel to complete a physical examination by an examiner selected by Westfield. Silbernagel did not object to the examination or the examiner, but he wanted to make an audio recording. The parties’ pretrial scheduling order had required the examination to occur by December 26, 2022, but that deadline passed while they disputed recording. Westfield also moved to amend the scheduling order.

Physical examination and recording

The court held that Silbernagel’s physical condition was genuinely at issue and that there was good cause for the examination. It therefore granted Westfield’s request to compel Silbernagel to participate in the Rule 35 physical examination.

The court separately held that Silbernagel could record the examination. It treated the recording question as a fact-specific issue concerning the examination’s conditions. The court found that Westfield had not shown that recording would impede or affect the examination. It reasoned that a recording could provide both parties and the fact-finder with a complete and verifiable account of what occurred and could help resolve later disputes about the examination.

The court ordered that Silbernagel alone pay the recording costs and make the recording available to Westfield immediately upon receiving it. The parties were ordered to confer by March 7, 2023, about the examination’s time, location, and recording method.

Scheduling order

The court found good cause to modify the pretrial schedule because the examination had not been completed while the parties addressed an unsettled procedural issue. It granted Westfield’s Motion to Amend the Pretrial Scheduling Order and extended the deadline for completing the examination to May 1, 2023.

Disposition

Westfield’s Motion to Compel was GRANTED in part and DENIED in part: it was granted as to requiring the physical examination and denied as to preventing Silbernagel from recording it. Westfield’s Motion to Amend the Pretrial Scheduling Order was GRANTED. This order addressed discovery and scheduling; it did not decide whether Westfield’s policy covers Silbernagel’s claimed losses.