The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN BENSCOTER, No. 4:22-CV-01142
Plaintiff, (Chief Judge Brann)
v.
NATIONWIDE MUTUAL
INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION
JANUARY 10, 2024
I. BACKGROUND
A. Relevant Factual Background1
Plaintiff John Benscoter, who at all relevant times held an auto insurance
policy issued by Defendant Nationwide Mutual Insurance Company, was involved
in a motor accident in which he sustained and was subsequently treated for numerous
physical injuries.2 On October 11, 2019 and again on November 11, 2019,
Nationwide informed Benscoter that payment for medical treatment of his injuries
was conditioned on him submitting to—and Benscoter did submit to—an
independent medical examination (“IME”) as required by under his policy:
1 As explained below, for the purpose of this motion, the Court accepts as true all well-pleaded
allegations contained in the Second Amended Complaint. See infra Section II.
Injured persons must submit to examinations by company-selected
physicians as often as the company reasonably requires. The injured
person must submit to examination under oath as often as reasonably
requested by us.3
On November 20, 2019, the Pennsylvania Supreme Court issued its opinion
in Sayles v. Allstate Insurance Company, holding that “an automobile insurance
policy provision, which requires an insured seeking first-party medical benefits
under the policy to submit to an independent medical exam whenever the insurer
requires and with a doctor selected by an insurer” conflicts with 75 Pa. C.S. §
1796(a) of the Pennsylvania Motor Vehicle Financial Responsibility Law and is void
as against public policy.4
“Section 1796(a) requires an insurer who wishes to compel a claimant for
first-party medical benefits to undergo an IME to file a petition with a court of
competent jurisdiction, and, also, to show good cause for the IME. In addition, any
court order for an IME must give the insured ‘adequate notice of the time and date
of the examination,’ as well as ‘state the manner, conditions and scope of the
examination.’”5 Nationwide did not follow this procedure; it did not petition and
demonstrate good cause to a court of competent jurisdiction prior to requiring
Benscoter to attend an IME.6 Further, the IME was conducted by an expert hired by
3 Id. ¶¶ 43-45, 48.
4 219 A.3d 1110, 1110 (Pa. 2019); SAC ¶¶ 46-47.
5 Sayles, 219 A.3d at 1125 (quoting 75 Pa. C.S. § 1796(a)).
6 SAC ¶¶ 47, 49-52.
Nationwide rather than an independent doctor.7 Nevertheless, on December 27,
2019, Nationwide terminated Benscoter’s auto medical benefits effective January
10, 2020 based on the results of the IME it required Benscoter to attend.8
B. Procedural History
Benscoter initiated this lawsuit on June 17, 2022 and filed an Amended
Complaint on February 2, 2023.9 The parties filed cross-motions for summary
judgment;10 the Court denied Benscoter’s motion and granted Nationwide’s motion
except as to Benscoter’s breach of contract claim.11 In doing so, the Court rejected
Benscoter’s argument that an IME he attended at Nationwide’s direction was void
as a matter of law, but permitted him to amend his complaint to include any facts
that would show he was otherwise improperly denied benefits.12 Benscoter filed a
Second Amended Complaint on September 11, 2023.13 Nationwide filed a Motion
to Strike, or, In the Alternative, Dismiss Plaintiff’s Second Amended Class Action
Complaint on October 9, 2023.14 The Motion is fully briefed and ripe for
disposition.15
7 Id. ¶ 53.
8 Id. ¶ 55.
9 Compl., Doc. 1-1; Am. Compl., Doc. 26.
10 The parties consented to converting Nationwide’s then pending motion to dismiss into a motion
for summary judgment. June 9, 2023 Ord., Doc. 42.
11 Aug. 22, 2023 Ord., Doc. 48.
12 Mem. Op. (“MSJ Op.”), Doc. 47.
13 SAC, Doc. 49.
14 Mot. to Dismiss SAC, Doc. 52.
15 Br. in Supp. (“BIS”), Doc. 53; Opp. Br. (“BIO”), Doc. 56; Reply, Doc. 59.
II. LAW
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal for “failure to
state a claim upon which relief can be granted.” The United States Court of Appeals
for the Third Circuit has instructed that, under the standard established by the
Supreme Court of the United States in Bell Atlantic Corp. v. Twombly16 and Ashcroft
v. Iqbal,17 a court reviewing the sufficiency of a pleading must take three steps: (1)
“take note of the elements the plaintiff must plead to state a claim”; (2) “identify
allegations that, because they are no more than conclusions, are not entitled to the
assumption of truth”; and (3) “assume the[] veracity” of all “well-pleaded factual
allegations” and then “determine whether they give rise to an entitlement to relief.”18
III. ANALYSIS
A. The Court’s August 22, 2023 Opinion
In its Memorandum Opinion regarding the parties’ motions for summary
judgment, the Court found that a reasonable jury could conclude that Nationwide
breached its contract with Benscoter by compelling him to undergo an IME without
following the procedure outlined in Section 1796.19 However, the Court concluded
that Benscoter failed to allege or point to any evidence that suggested the results of
16 550 U.S. 544 (2007).
17 556 U.S. 662 (2009).
18 Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations and
citations omitted).
19 MSJ Op. Section IV.B.1.
the IME were actually incorrect and, therefore, that he was not harmed by the
breach.20 The Court specifically rejected that “the IME is void as a matter of law.”21
In his Second Amended Complaint, Benscoter asserts just the opposite: “. . .
IMEs which an insurer compelled an insured to attend based on policy terms and
which an insurer did not compel in conformance with the law [are] void as a matter
of law.”22 Opposing dismissal of the Second Amended Complaint, Benscoter
suggests that the Court had misunderstood him as “claiming that Sayles categorically
prohibited the use of IMEs across the board (even when voluntarily attended) absent
a court order.”23 Benscoter emphasizes that his “claims only concern instances where
an insurer compels an insured to attend an exam without obtaining a court order
through the process mandated by § 1796.”24
As the Court observed in its prior Opinion, “[i]t is undisputed that Nationwide
did not seek the IME pursuant to the procedure set forth in Section 1796, or that a
failure to do so to compel an IME may constitute a breach of contract.”25 Further,
the Court agreed with Benscoter that a reasonable jury could conclude that
20 Id. Section IV.B.2.
21 Id. 23.
22 SAC ¶ 1; accord id. ¶ 67.
23 BIO 1.
24 Id. at 2 (emphasis in original).
25 MSJ Op. 20 (citations to FAC and MSJ briefing omitted).
Nationwide did in fact compel him to attend the IME.26 If that was the end of the
inquiry, Benscoter would have stated a claim for a breach of contract.
Alas, simply alleging a breach of contract is insufficient to state a breach of
contract claim—he must also plead facts sufficient to show that he was harmed by
the breach.27 It may be a distinction only a lawyer could love, and it may leave
Benscoter wondering if Dick the Butcher was onto something,28 but failure to allege
that he was harmed by the breach is what doomed Benscoter’s claims in his First
Amended Complaint.
Arguing otherwise, Benscoter directed the Court to Thompson v. Workers’
Compensation Appeal Board (Exelon Corp.)29 which, Benscoter asserts, supports
“the legal proposition that exams which are unlawful are void.”30 The Court found
that Thompson—a case dealing with the denial of workers compensation benefits
based on an unlawful Impairment Rating Evaluation—was distinguishable because
a prior Pennsylvania Supreme Court decision had essentially found that all IREs
were unlawful, a step not taken by that Court in its Sayles decision.31 Specifically,
the Thompson court noted that a previously suggested remedy for an unlawfully
procured IRE—remanding the matter to the Workers Compensation Judge for a legal
26 Id. at 21-22.
27 McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010).
28 William Shakespeare, The Second Part of King Henry the Sixth, act 4, sc. 2.
29 168 A.3d 408 (Pa. Commw. 2017).
30 BIO 3 n.1.
31 MSJ Op. 23.
IRE—was foreclosed by the Pennsylvania Supreme Court.32 Thus, any denial of
benefits based on an IRE would be unlawful.
Here, the parties agree that Nationwide could deny benefits based on a
lawfully procured IME. Benscoter also did not challenge the results of the
“unlawful” IME. Put differently, he failed to allege that a doctor appointed by a court
under Section 1796 would have reached a different result, namely that he was
entitled to further benefits under his policy. Benscoter does not have an unqualified
right to medical benefits from Nationwide. Rather, he is only entitled to benefits for
injuries he sustained in his accident and from which he had not yet recovered.33 The
IME found, and Benscoter did not dispute, that he had done just that.
In his Second Amended Complaint, Benscoter alleges for the first time that
“he disputes the results of the exam,” specifically “that the results of the exam are
inaccurate and wrong [and] are the product of bias and interest of the exam[iner].”34
Conclusory allegations of inaccuracy and bias are insufficient to cause the Court to
reconsider its prior finding that Benscoter “fail[ed] to allege that the IME’s findings
are incorrect or otherwise unreliable.”35 The Court agrees with Nationwide that, even
assuming that these allegations would have been sufficient to survive dismissal of
Benscoter’s original complaint, that ship has since sailed. Nationwide twice argued
32 Thompson, 168 A.3d at 412-13.
33 MSJ Op. 21-22.
34 SAC ¶ 59.
35 MSJ Op. 23.
the absence of such allegations warrant dismissal and, only after the Court agreed
with Nationwide, did Benscoter change his position.36
Plaintiffs granted leave to amend may not avoid dismissal by simply
creatively repleading facts that have already been alleged. If Benscoter disagrees
with this Court’s legal conclusions, he may take his cause to the Third Circuit, but
he cannot simply mold the facts of his case to fit the law.
B. Breach of Contract
In its prior Opinion, the Court found that, while Benscoter had failed to show
that he was improperly denied benefits based on the IME, a reasonable juror could
find that Benscoter may have nevertheless been entitled to benefits for medical care
which fell outside the scope of the IME.37 The Court permitted Benscoter to amend
his complaint a second time if he could allege that he had been denied such benefits.
Benscoter’s Second Amended Complaint contains no such allegations. Instead,
Benscoter simply doubles down on his argument that “[w]ithout the medical exam
that Nationwide compelled illegally and based on an illegal policy provision,
Nationwide would have had no basis to deny Plaintiff’s first-party benefits and
would have been obligated to continue paying Plaintiff’s benefits.”38 Because the
36 BIS 7-8.
37 MSJ Op. 24-25.
38 SAC ¶ 75.
Court has found that such allegations are insufficient to state a claim for breach of
contract, the Court will grant Nationwide’s Motion to Dismiss.
IV. CONCLUSION
For the foregoing reasons, Nationwide’s Motion to Dismiss is granted.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge