Tuesday, February 8, 2011

Novel Issue on Insurance Policy Mandated IMEs Addressed in Erie County

In a January 28, 2011 Order issued in the case of Erie Ins. Exchange v. Greentree, No. 90034 - Civil -10 (Erie Co. Jan. 28, 2011, Connelly, J.), Judge Shad Connelly of the Erie County Court of Common Pleas compelled an Erie insured to attend an independent medical examination (IME) over the insured's objection.

By way of background, this matter involved a First Party medical claim under the old No-fault Act, which required payment of lifetime medical treatment so long as the treatment was reasonably related to the accident. Erie Insurance sought an IME to investigate need for further treatment (over 30 years since the accident.) The insured refused, and Erie filed the motion to compel an IME at issue.

The Court granted Erie's motion and held that as long as the request made by Erie Insurance under a policy provision requiring an insured to attend an IME is reasonable, such policy provision is enforceable and trumps any language in the old No-Fault Act that required an insurer to meet a more demanding burden of proof.

In its Order, the Erie County Court of Common Pleas also followed the recent U.S. Eastern District Court of Pennsylvania decision in Williams v. Allstate Ins. Co., 595 F.Supp.2d 532 (E.D.Pa. 2009), which held that IME policy provisions also take precedence over any language in the Motor Vehicle Financial Responsibility Law (MVFRL) pertaining to the burden of proof on a carrier before setting up an IME (i.e. Section 1796 requires the carrier to file a petition to the court and show "good cause" for the issuance of an Order compelling attendance at an IME).

In the Williams case, the Eastern District of Pennsylvania court noted that, as of the time of its 2009 decision the Pennsylvania Supreme Court had not address the conflicting interplay between insurance policy language allowing carriers to order IMEs as often as the carrier may reasonably require and the mandates of Section 1796 of the MVFRL. The Williams court predicted that, if faced with the issue, "the Pennsylvania Supreme Court would find that a contractual provision, which requires an insured to submit to reasonable medical examinations as a condition precedent to insurance coverage is enforceable, notwithstanding section 1796 of the MVFRL." Id. at p. 545.

I note that the Erie County decision is by Order only. Anyone desiring a copy of the Order may contact me at dancummins@comcast.net.

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