Wednesday, November 20, 2019

Pennsylvania Supreme Court Mandates Motions Practice for First Party PIP Medical Exams

The Plaintiff’s bar scored yet another victory at the Pennsylvania Supreme Court level with decision issued by the court in the combined matters of Sayles v Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.) and Scott v Travelers.

The case involved the practice of automobile insurance companies requesting insureds to attend PIP medical exams as may be required by the terms of the insurance policy.

The Plaintiffs argued that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is entitled “Mental or physical examination of a person."

That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The Plaintiff’s argument in Sayles was that Section 1796 required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam and that even when good cause is shown, it is the court and not the insurer who would select the examiner.

The Pennsylvania Supreme Court rejected the current practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions and ruled that insurers must, instead, file a Petition with the Court and demonstrate good cause. Also, it will now be an independent judge who will select the medical examiner and not the carrier.

The Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day.  See fn. 13.

Anyone wishing to review the Majority Opinion by Justice Todd may click this LINK.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott B. Cooper for bringing this case to my attention.

Commentary:  The Pennsylvania Supreme Court's decision in this regard appears to be of little moment as it is a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

Notably, to the extent that motions practice will now be required for those typical cases where an auto carrier wishes to secure an IME as part of the claims process, the Pennsylvania Supreme Court did not provide any guidance on how the already overburdened trial courts are to deal with the possible onslaught of new litigation that may result in this regard by plaintiffs who insist that the now required motions practice be followed.  Nor was any guidance provided by the Supreme Court to the trial court judges on how to select an appropriate doctor to complete the requested examination and/or what the manner, scope or conditions of the exam should be in any given case.

In the end, it appears that what was a non-issue has now been turned into a monumental problem for the trial courts going forward.

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