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November 22nd, 2024
Verba was the operator of a vehicle that was struck from behind by another vehicle while he was stopped in traffic. As a result of the crash, he alleged to have sustained injuries to his head, jaw, neck, back, shoulders, arms, hands, spine, tinnitus, which he described as “serious and severe.” Verba’s insurance policy with Erie Insurance Exchange (“Erie”) provided: “[w]hen there is an accident or loss, ‘anyone we protect’ will at ‘our’ request, separately submit to physical and mental examination by doctors ‘we’ choose as often as ‘we’ reasonably require. ‘We’ will pay for these examinations.”
Erie sent a letter to Verba, demanding he undergo a medical examination in accordance with its policy. Verba underwent a medical examination with Dr. Robert Grob, D.O., who determined Verba required no further treatment for the crash-related injuries. Therefore, Erie denied payment for Verba’s alleged “reasonable and necessary medical expenses related to the accident.”
Relying on the case of Sayles v. Allstate Ins. Co., 656 Pa. 99, 219 A.3d 1110 (2019), wherein the Pennsylvania Supreme Court concluded that similar medical exam terms were void as against public policy and the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), Verba sued for breach of contract and bad faith by improperly denying payment for “reasonable and necessary” past, present and future medical expenses related to the accident.
Erie directed Verba to submit to another medical exam with Scott Sexton, M.D. Verba objected to Erie’s request on the basis it would be duplicative of Dr. Grob’s medical exam, and Erie failed to demonstrate “good cause” for the examination. Nonetheless, Verba contacted Dr. Sexton, and before Erie retained Dr. Sexton, Verba submitted himself to Dr. Sexton for a medical exam. Verba submitted Dr. Sexton’s report to Erie. Later, Erie moved the trial court to compel Verba’s attendance at a medical exam with a qualified medical examiner, which the trial court granted.
The Superior Court concluded that Verba’s appeal satisfied the collateral order doctrine because the order at issue was separable from the main cause of action. Specifically, the Court determined that it could address Verba’s claim regarding the propriety of a medical exam without an analysis of the underlying breach of contract action. Additionally, an order directing an individual to submit to an IME implicates issues concerning the privacy of the individual subjected to the examination. See Uhl v. C.H. Shoemaker & Son, Inc., 637 A.2d 1358, 1360 (Pa.Super. 1994); Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24 (Pa.Super. 2007) (Privacy is an issue that is deeply rooted in public policy.) The Court held enforcement of the order would result in the irreversible intrusion upon Verba’s right to privacy, resulting in no effective means of review available.
“A trial court is authorized to order an independent medical examination of a plaintiff upon a showing of good cause for such exam.” McGratton v. Burke, 674 A.2d 1095, 1097 (Pa.Super. 1996). “Whether good cause exists is a determination committed to the sound discretion of the trial court, whose decision may not be reversed in the absence of an error of law or abuse of discretion.” Id.
This Court has evaluated the differences between 75 Pa.C.S.A. § 1796(a) and Pa.R.C.P. 4010(a)(1)-(3) as follows:
Rule 4010, which predated section 1796 of the Vehicle Code, differs only in that it applies to a pending action as opposed to a claim for medical income loss or catastrophic loss benefits, and the rule requires that controversy exists, whereas section 1796 merely provides the mental or physical condition is material to a claim. The provision of “good cause shown” is identical in both. The terms “in controversy” and “material to any claim” cannot be read interchangeably. “In controversy” is read
“more broadly, to include any action in which the condition will be a material issue, although no personal injuries are claimed….
If the phrase “in controversy” is ambiguous and capable of the two meanings that the federal cases have suggested, the history of physical examination in Pennsylvania makes it clear that the broader meaning is intended.” Goodrich-Amram 2d § 4010(a):4, p. 266. “Material to the claim,” as contained in section 1796, limits the examination to those instances where the information is essential to confirm the need to pay or continue payment of the claim. Under Rule 4010, a controversy exists by virtue of a pending action in which the physical or mental condition of a party is at issue.
State Farm Ins. Companies v. Swantner, 594 A.2d 316, 320-21 (Pa.Super. 1991).
Here, the Court found that Verba’s physical condition remained in controversy during the pendency of the action. See McGratton, supra at 1097 (stating that the plaintiff’s medical condition was in controversy where “the nature and extent of [the plaintiff’s] injuries was the sole issue for resolution at trial”). Consequently, the Court concluded that the trial court did not abuse its discretion in finding good cause existing for the medical exam.
Finally, Verba argued that according to Sayles, supra “under Section 1796(a), if the judge does grant an insurer’s request for the IME, the judge selects the physician who will perform the medical exam. However, the Court concluded the order at issue related to a medical exam scheduled in conjunction with a pending action, as contemplated by Rule 4010 and not Section 1796(a). See Swantner, supra at 320-21. Accordingly, the Court affirmed the order requiring Verba to submit to a medical exam.
The opinion in Verba v. Erie Ins. Exchange, 2024 PA Super 251 (October 31, 2024) can be accessed here.
