Thursday, October 18, 2018

Pennsylvania Supreme Court to Address Propriety of Auto Policies Allowing for Multiple IMEs of Insureds

According to an October 18, 2018 article in the Pennsylvania Law Weekly by Zack Needles entitled "Pa. Supreme Court Takes 3rd Circ.'s Question on Auto Insurers' Medical Exam Policies," the Pennsylvania Supreme Court has agreed to review the question certified over by the Third Circuit Court of Appeals of whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing before they can receive benefits.

The article notes that the Pennsylvania Supreme Court issued identical October 15, 2018 Orders in both Sayles v. Allstate Insurance and Scott v. Travelers Commercial Insurance, granting the Third Circuit’s petition for certification of a question of law. 

The certified question is, as follows: “Whether, under Pennsylvania law, a contractual provision in a motor vehicle insurance policy that requires an insured to submit to an independent medical examination by a physician selected by the insurer, when and as often as the insurer may reasonably require, as a condition precedent to the payment of first-party medical benefits under that policy, conflicts with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1796(a), and is therefore void as against public policy.”

The Order in Sayles can be reviewed HERE.

The Order in Scott can be reviewed HERE.

Commentary:  It appears that at least one of the arguments by the Plaintiffs in these cases is that an automobile insurance carrier should not be able to send its insured to an IME or multiple IMEs as a matter of course as allowed by the policy language where the Pennsylvania Rules of Civil Procedure only allow for IMEs when good cause is shown.  See Pa.R.C.P. 4010.

In reality and as a practical matter, it is a rare occurrence that an auto insurance carrier will subject its insureds to multiple IMEs.  In some cases, where a Plaintiff has separate types of injuries for which he or she has treated with separate specialists, then a carrier may request separate IMEs with doctors in those same types of specialties.  But carriers are not in the habit of sending its insureds to multiple IMEs as a matter of course.

Therefore, it is curious that the Pennsylvania Supreme Court would accept this issue for review where a decision on this question presented is not likely to have any great effect as a practical matter.

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