Tuesday, January 14, 2020

Sayles Decision Limited to Pre-Suit Claims by Federal Court Case

In the case of Loughery v. Mid-Century Insurance Co., No. 19-383 (W.D. Pa. Dec 23, 2019 Dodge, Fed. Mag. J.),a Western District Federal Magistrate Judge addressed the issue of the proper procedure for an insurance company to compel compliance by a Plaintiff relative to attending a medical examination under a first party medical benefits claim when a first party benefits case was already in suit. 

Before the Court was a motion by the carrier, pursuant to Federal Rule of Civil Procedure 35, which is entitled “Physical and Mental Examinations,” to compel the Plaintiff to attend a medical exam.

The Plaintiff asserted that, under its recent decision in the case of Sayles v. Allstate Ins. Co., --- A.3d --- (Pa. Nov. 20, 2019), the Pennsylvania Supreme Court established the proper method for scheduling an exam under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) as requiring motions practice and the securing of a court order.

While the court agreed that the Sayles decision may apply to pre-suit requests for medical exams in the first party contest, once a first party lawsuit was filed in Federal Court, then F.R.C.P 35 was to be applied. 

Applying F.R.C.P. 35 to the case before it, the Loughery court found that there was good cause shown by the carrier for the exam.

Anyone wishing to review this decision by Western Federal Magistrate Judge Dodge may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

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