Verba, R. v. Erie Insurance Exchange

J-A12017-24

2024 PA Super 251

RONALD C. VERBA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

ERIE INSURANCE EXCHANGE :

:

: No. 2633 EDA 2023

Appeal from the Order Entered September 18, 2023

In the Court of Common Pleas of Northampton County

Civil Division at No(s): C-48-CV-2021-02690

BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. *

OPINION BY KING, J.: FILED OCTOBER 31, 2024

Appellant, Ronald C. Verba, appeals from the order entered in the

Northampton County Court of Common Pleas, which required him to submit

to an independent medical examination (“IME”) by a qualified examiner

selected by Appellee, Erie Insurance Exchange. We affirm.

The trial court opinion set forth the relevant facts and procedural history

of this appeal as follows:

[Appellant] was the driver of a vehicle stopped in traffic

when his vehicle was struck in the rear by another motor

vehicle on or about September 10, 2018. He alleged to have

“serious and severe injuries” as a result of the accident

“including but not limited to his head, jaw, neck, back,

shoulders, arms, hands, spine, tinnitus, and/or aggravation

of conditions ….”

At the time of the accident, [Appellant] had an insurance

policy with [Appellee] that provided: “[w]hen there is an

accident or loss, ‘anyone we protect’ will at ‘our’ request,

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* Former Justice specially assigned to the Superior Court.

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separately submit to physical and mental examination by

doctors ‘we’ choose as often as ‘we’ reasonably require.

‘We’ will pay for these examinations.”

[Appellee] sent a letter on April 29, 2019, demanding

[Appellant] undergo an IME in accordance with its policy.

[Appellant] then submitted himself to Dr. Robert Grob, D.O.,

and underwent the IME. [Appellee] selected Dr. Grob and

paid for the examination.

Thereafter, on August 6, 2019, [Appellee], relying upon the

results of the IME, began denying payment for what

[Appellant] contends were “reasonable and necessary

medical expenses related to the accident.”

On November 20, 2019, the Pennsylvania Supreme Court

decided Sayles v. Allstate Ins. Co., [656 Pa. 99, 219 A.3d

1110 (2019)], in which it held substantially similar

insurance language as contained in [Appellee’s] policy

concerning when an insured must submit to an insurance

IME was held to be void as against public policy and the

terms of the Pennsylvania Motor Vehicle Financial

Responsibility Law [(“MVFRL”)].

[Appellant] sued [Appellee] on April 21, 202[1], alleging

breach of contract and bad faith by improperly denying

payment for “reasonable and necessary” past, present and

future medical expenses related to the accident.

By letter dated June 30, 2022, [Appellee] sought another

IME of [Appellant] and suggested dates to see Scott Sexton,

M.D. for that purpose. [Appellant] refused [Appellee’s]

request that he submit to another IME on the basis that it

would be duplicative of Dr. Grob’s IME, and [Appellee] did

not demonstrate “good cause” for the examination.

Nonetheless, [Appellant] contacted Dr. Sexton, learned that

Dr. Sexton had not yet been retained by [Appellee] and

submitted himself to Dr. Sexton, who performed an IME on

[Appellant]. Dr. Sexton wrote a report that [Appellant]

submitted to [Appellee] on or about October 25, 2022.

[Appellee] presented a motion on June 7, 2023, to compel

an IME of [Appellant]. The motion was granted by order of

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September 18, 2023, requiring [Appellant] submit to a

qualified examiner selected by [Appellee] for an IME within

sixty (60) days of that order.

(Trial Court Opinion, filed 10/23/23, at 1-3) (internal record citations

omitted).

Appellant timely filed a notice of appeal on October 10, 2023. That same

day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. Appellant timely filed a Rule 1925(b)

statement on October 16, 2023. On November 7, 2023, this Court directed

Appellant to show cause as to why the order on appeal satisfied the collateral

order doctrine. Appellant filed a response to the show cause order on

November 16, 2023, and this Court discharged the show cause order on

December 5, 2023.

Appellant now raises four issues for our review:

Is the 9/18/2023 order compelling [Appellant’s] subjection

to a physical examination a collateral order?

Did the trial court commit prejudicial error of law and/or

abuse of discretion by granting the motion for

reconsideration and compelling an IME where the court did

not apply a proper definition of good cause, finding that the

mere existence of a PIP claim satisfied good cause?

Did the trial court commit prejudicial error of law and/or

abuse of discretion by granting the motion for

reconsideration and compelling an IME where insufficient

evidence establishing good cause was submitted by

[Appellee] to sustain its burden of showing that the proofs

supplied by [Appellant] in support of the claim were not

adequate, especially considering [Appellant] went to 2 IMEs

that [Appellee] had requested [Appellant] to see previously?

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Even if the court properly found good cause to exist, under

Sayles, did the court err by abdicating its responsibility to

[choose] the IME doctor, and instead, improperly delegate

… its authority to appoint the examiner and related issues

to [Appellee], especially considering that [Appellant] had

already been examined by the doctor that [Appellee]

wanted [Appellant] to see?

(Appellant’s Brief at 5-6) (internal quotation marks omitted).

Consistent with Appellant’s first issue, we begin by addressing the

propriety of this interlocutory appeal. “An appeal may be taken only from a

final order unless otherwise permitted by statute or rule.” Carbis Walker,

LLP v. Hill, Barth and King, LLC, 930 A.2d 573, 577 (Pa.Super. 2007)

(quoting Ben v. Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (1999)).

Collateral orders are an exception to this general rule. See Pa.R.A.P. 313.

To qualify as a collateral order under Rule 313, the order

must be separate and distinct from the underlying cause of

action. Additionally, it is not sufficient that the issue under

review is important to a particular party; it must involve

rights deeply rooted in public policy going beyond the

particular litigation at hand. Finally, there must be no

effective means of review available after an Order requiring

the production … is reduced to judgment.

Significantly, Pennsylvania courts have held that discovery

orders involving potentially confidential and privileged

materials are immediately appealable as collateral to the

principal action.

Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123-24

(Pa.Super. 2007) (internal citations and quotation marks omitted).

Here, the order at issue is separable from the main cause of action, as

this Court can address Appellant’s claim regarding the propriety of an IME

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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).

Privacy is an issue that is deeply rooted in public policy. See Berkeyheiser,

supra at 1124. Further, enforcement of the order would result in the

irreversible intrusion upon Appellant’s right to privacy. Thus, there would be

no effective means of review available. See id. Accordingly, the order on

appeal is collateral to the main cause of action and immediately appealable.

Id.

Appellant’s second and third issues are related, and we address them

together. Appellant argues that the trial court found “good cause” to order

the IME based on the continuing nature of Appellant’s alleged damages and

the four-year lapse of time between the pre-litigation IME and present day.

Appellant maintains, however, that the court did not utilize the proper

definition of good cause to reach this conclusion. Appellant asserts that good

cause to compel an IME requires the petitioner to allege “(1) facts showing

that proof supplied in support of the claim [is] inadequate; (2) that the

proposed physical examination will substantially assist in evaluating the claim;

[and] (3) the amount of the claim justifies the order.” (Appellant’s Brief at

42-43) (quoting McDaniel v. State Farm Mut. Auto. Ins. Co., 6

Pa.D.&C.4th 520 (Mercer Cty. 1990)). Pursuant to this definition, Appellant

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avers that the court should have denied Appellee’s motion to compel.

Additionally, Appellant contends that Appellee “failed to establish good

cause by demonstrating why the proof submitted in support of [Appellant’s]

claim was insufficient to support the claim.” (Id. at 52). Appellant insists

that Appellee “cannot legitimately cite the previous IME it conducted in 2019

to establish the grounds for another IME with a different physician[.]” (Id. at

53). Specifically, Appellant relies on Sayles for the proposition that the 2019

IME was improper where it was conducted pursuant to an illegal insurance

“contract provision stating that [Appellant] must appear for an IME whenever

[Appellee] decides it wants one.” (Id. at 54).

On the flipside of that coin, if the Court were to decide that

Dr. Grob’s IME is not precluded in this proceeding, then that

clearly establishes that [Appellee] already has an IME and

does not need another one. Hence, [Appellant] should not

be compelled to attend another IME.

(Id. at 57). Appellant concludes that the court committed an error of law by

failing to apply the proper definition of good cause, and this Court must

reverse the order granting Appellee’s motion to compel an IME. We disagree.

“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), appeal denied, 546 Pa. 667,

685 A.2d 546 (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.

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“Furthermore, our task in reviewing the discretion exercised by the [trial]

court is not to substitute our judgment for that of the [trial] court, but to

determine if the [trial] court’s action was manifestly unreasonable.” Uhl,

supra at 1360.

Both the MVFRL and Pa.R.C.P. 4010 provide instruction regarding when

a court may order an IME. Section 1796(a) of the MVFRL provides:

§ 1796. Mental or physical examination of person

(a) General rule.—Whenever the mental or physical

condition of a person is material to any claim for medical,

income loss or catastrophic loss benefits, a court of

competent jurisdiction or the administrator of the

Catastrophic Loss Trust Fund for catastrophic loss claims

may order the person to submit to a mental or physical

examination by a physician. The order may only be made

upon motion for good cause shown. The order shall give the

person to be examined adequate notice of the time and date

of the examination and shall state the manner, conditions

and scope of the examination and the physician by whom it

is to be performed. If a person fails to comply with an order

to be examined, the court or the administrator may order

that the person be denied benefits until compliance.

75 Pa.C.S.A. § 1796(a). Rule 4010 adds:

Rule 4010. Physical and Mental Examination of

Persons

(a)(1) As used in this rule, “examiner” means a

licensed physician, licensed dentist or licensed psychologist.

(2) When the mental or physical condition of a

party, or of a person in the custody or under the legal control

of a party, is in controversy, the court in which the action is

pending may order the party to submit to a physical or

mental examination by an examiner or to produce for

examination the person in the party’s custody or legal

control.

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Note: The examination may include blood or genetic

testing.

(3) The order may be made only on motion for

good cause shown and upon notice to the person to be

examined and to all parties and shall specify the time, place,

manner, conditions and scope of the examination and the

person or persons by whom it is to be made.

Pa.R.C.P. 4010(a)(1)-(3).

This Court has evaluated the differences between Section 1796 and Rule

4010 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 a 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 which 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.

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State Farm Ins. Companies v. Swantner, 594 A.2d 316, 320-21

(Pa.Super. 1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (1992)

(emphasis in original; footnote omitted).

As a result, IMEs pursuant to Section 1796 “may arise out of a lack of

knowledge rather than a controversy, and it is up to the trial court to

determine whether, on the basis of information supplied, a medical

examination is warranted to ascertain the needed information.” Id. at 321.

The good cause requirement under Section 1796 is “related solely to the

medical condition as it is material to the claim regardless of a controversy that

would be the focus of a cause of action. Such a claim may be made

independent of any cause of action and is a separate, non-ancillary proceeding

that may be invited by the MVFRL….” Id. at 322.

“The requirement of ‘good cause’ set forth in Rule 4010(a) is designed

to protect parties against an unwarranted invasion of their privacy and

preclude the use of such an examination for improper purposes.” McGratton,

supra at 1097. “If the controversy in a pending action (Rule 4010) relates to

the very existence of a medical condition, this entails a fundamental issue as

to the validity of the cause of action, and absent proof the case may not

proceed.” Swantner, supra at 322. “Good cause to obtain an examination

under those circumstances is more liberally available.” Id.

Instantly, Appellant participated in the 2019 IME with Dr. Grob in

accordance with the insurance policy Appellee had issued. Appellant

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subsequently filed his lawsuit against Appellee. After litigation commenced,

Appellee sought to schedule an updated IME with Dr. Sexton. Appellant

initially refused to participate in an IME with Dr. Sexton because it “would be

duplicative” of Dr. Grob’s IME, and “good cause was not established for even

Dr. Robert Grob’s examination.” (Exhibit C to Motion to Compel IME, dated

7/5/22, at 1). After learning that Appellee had yet to retain Dr. Sexton,

however, Appellant retained Dr. Sexton and voluntarily participated in an IME.

Appellee then sought to compel Appellant to submit to an IME with an

examiner of its choosing, pursuant to Rule 4010. (See Appellee’s Brief in

Support of Motion for Reconsideration, filed 6/30/23, at 2-3) (unnumbered).

Our review of the record confirms that Appellant’s physical condition

remained in controversy during the pendency of the action. See McGratton,

supra at 1097 (stating that 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”). We emphasize that Appellant’s complaint alleged that the

2018 accident was the proximate cause of “serious and severe injuries,

including but not limited to his head, jaw, neck, back, shoulders, arms, hands,

spine, tinnitus, and/or aggravation of conditions[.]” (Complaint, filed

4/21/21, at ¶9). Nevertheless, Appellant’s deposition testimony mentioned

that he suffered from “radiating pain” on the right side of his neck at least five

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years prior to the accident at issue. (N.T. Deposition, 10/26/22, at 29). 1

Appellant’s medical records also revealed a history of fibromyalgia, and

Appellant reported neck pain, chronic headaches, and lower back pain during

a medical appointment three weeks prior to the accident. (See Deposition

Exhibit 1, dated 8/16/18, at 3).

The trial court relied on the “nature of [Appellant’s] alleged damages

and his claim [that] such damages are continuing and will continue into the

future,” as well as “the four-year lapse of time between Dr. Grob’s IME and

now” in concluding that Appellee had demonstrated good cause to compel

another IME. (Trial Court Opinion at 4). The trial court also determined “it is

not unreasonable for [Appellee] to request a current IME by an examiner of

its choosing rather than being required to rely on an examiner paid for by

[Appellant].” (Id.) Considering the relevant authority, we cannot say that

the court committed any legal error in conducting its evaluation of good cause.

See Swantner, supra. See also McGratton, supra (explaining that court’s

refusal of request to conduct IME of plaintiff denied defendant opportunity to

present testimony from physician who had examined plaintiff and who was

qualified to offer testimony to refute plaintiff’s expert testimony on issue of

whether plaintiff had sustained serious injury; such evidence was essential to

proper defense of case). Based upon the foregoing, we conclude that the

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1 Appellant’s deposition transcript is included in the certified record as Exhibit

D to Appellee’s motion to compel the IME.

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court articulated adequate reasons to support its finding of good cause, and

the court did not abuse its discretion or otherwise commit reversible error. 2

See id.; Uhl, supra. Thus, Appellant is not entitled to relief on his second

and third issues.

In his fourth issue, Appellant contends that the trial court improperly

relinquished its authority to choose an examiner for the IME, even if the court

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2 The trial court acknowledged our Supreme Court’s decision in Sayles as

follows:

[T]here has been no determination that the Sayles decision

should be applied retroactively to void previously completed

IMEs. … Furthermore, Sayles dealt with whether an

insurance carrier could require its insureds to submit to an

IME whenever and how often it wanted; it did not deal with

whether an insurance IME was appropriate, i.e. for “good

cause” in any given case. Finally, if Dr. Grob’s IME was

determined to be of no effect, that would be all the more

reason for [Appellee] to request one now in light of the

alleged injuries to [Appellant] and the passage of time.

Otherwise, [Appellee] would be in the position of having to

continue to pay for all treatment of [Appellant’s] alleged

injuries upon [Appellant’s] submissions without the ability

to question whether such injuries were caused by the

accident and are ongoing.

(Trial Court Opinion at 3-4). We accept this analysis. To the extent Appellant

relies on Sayles to dispute the court’s findings, we reiterate that Sayles does

not specifically address a situation where an IME was granted under Rule

4010. See Sayles, supra at 126, 219 A.3d at 1126 (stating that “these IME

policy provisions [requiring insureds seeking medical benefits to submit to

examinations by physicians selected by insurers as often as reasonably

required] manifestly conflict with, and are repugnant to, the statutory

protections for individuals insured under automobile insurance policies

regarding the conduct of IMEs as established by the General Assembly in

Section 1796(a); consequently they are void as against the public policy of

this Commonwealth”).

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properly found good cause to compel the IME. Again, Appellant relies on

Sayles for the proposition that “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 IME[.]” (Appellant’s Brief at 58) (quoting Sayles, supra at 125,

219 A.3d at 1126). As discussed above, however, the order at issue relates

to an IME scheduled in conjunction with a pending action, as contemplated by

Rule 4010. See Swantner, supra at 320-21. Thus, Section 1796(a) does

not apply. As Appellant does not develop this claim further, we cannot say

that he is entitled to relief on his fourth issue. Accordingly, we affirm the

order requiring Appellant to submit to an IME.

Order affirmed.

Date: 10/31/2024

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