Recently, the Superior court of Pennsylvania in Verba v. Erie Insurance Exchange, No. 2633 EDA 2023, 2024 WL 4631682 (Pa. Super. Ct. October 21, 2024), analyzed whether the trial court erred in granting an insurer’s motion to compel its insured to submit to an independent medical examination (“IME”).
In Verba, the appellant sustained injuries while driving a motor vehicle that was stopped in traffic and was subsequently rear ended. The appellant was insured under an Erie Insurance policy at the time of the accident. The Erie policy had a provision that said: “[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.” As such, Erie demanded the appellant undergo an IME, which the appellant underwent. After the IME and as a result of the findings of the IME, Erie in August of 2019 denied payment for what the appellant contended was reasonable and necessary medical expenses related to the accident. The appellant then sued Erie for breach of contract and bad faith in April of 2021. Erie then sought another IME of the appellant with a different doctor which the appellant refused, claiming that it was duplicative of the prior IME and that Erie did not have good cause for the IME. Erie presented a motion to compel the appellant to submit to an IME within 60 days of an Order, which was granted by the Court of Common Pleas of Northampton County. The appellant appealed the trial court’s decision to the Superior Court.
There were four questions on appeal in front of the Superior Court. First, the Superior Court held that the trial court’s order on appeal was collateral to the main cause of action and immediately appealable. Pennsylvania law has allowed discovery orders, like the IME, involving confidential or privileged material to be immediately appealable as collateral to principal action. Here, the IME was collateral and separable to the underlying breach of contract and bad faith action and thus could be appealed at that juncture of the case.
The Superior Court analyzed the second and third questions together, finding that the trial court did articulate an adequate reason to support its finding that there was good cause for the IME and that the trial court did not abuse its discretion or commit reversible error by granting the motion to compel the IME. Appellant argued that the trial court erred in this finding good cause for the IME because the trial court used an improper definition of good cause and further that Erie failed to provide sufficient support to establish good cause. The Superior Court reasoned that a trial court is authorized to order an independent medical examination of a plaintiff upon a showing of good cause for such exam and that the finding can only be reversed if there was abuse of discretion or error of law committed by the trial court. Further, the Superior Court stated that the basis for when a court may order an IME comes from section 1796(a) of the MVFRL and Pa.R.C.P. 4010. The Court then went on to analyze the difference between the two rules. The Court reasoned that Pa.R.C.P. 4010 applies when the mental or physical condition of party is in controversy in an action pending before the Court and then the Court may order the party to submit to an IME upon good cause shown. On the other hand, MVFRL section 1796(a) applies when the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss and then the Court may order the party to submit to an IME upon good cause shown. The difference is that the MVFRL rule for IMEs does not require a controversy to exist but rather only requires a lack of knowledge of the needed medical information to exist.
Here, the Superior Court reasoned that the appellant’s physical condition was in controversy during the pendency of the action. The first IME was made in accordance with the Erie policy. After litigation commenced, Erie tried to get an updated IME pursuant to Pa.R.C.P. 4010 because the appellant’s condition was in controversy in the litigation pending. Erie submitted in support the following: the 2018 complaint alleged serios alleged serious injuries, in appellant’s deposition there was complaints of radiating pain of appellant’s neck 5 years prior to the accident, and there were medical records showing prior similar injuries. As a result of the evidence, the trial court held that there was good cause for the IME because of the nature of damages alleged, the claimed future damages, the 4 year lapse between the IME that the insured submitted to and the present time of the case before the court, and that it was reasonable for Erie to request an IME that the appellant did not pay for. Thus, the Superior Court in found that the trial court had good cause to compel the IME and that the trial court did not commit any errors.
Fourth, the Court held that the trial court did not improperly relinquish its authority to choose an examiner for the IME. The appellant argued that even if the trial court found good cause to compel the IME, that under the MVFRL section 1796(a) that the judge should select the medical examiner. The Superior Corut rejected this argument because the IME was scheduled in conjunction with a pending action as contemplated by Pa. R.C.P. 4010 and thus 1796(a) wouldn’t apply.
The Verba decision can be found here.
For additional questions, please contact Alyssa Klier, Esq. and/or Glen Shikunov, Esq.
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