MEMORANDUM
BUCKWALTER, Senior District Judge.
Currently pending before the Court is a Motion for Judgment on the Pleadings by Defendant Allstate Insurance Company and the Response thereto of Plaintiff Celeste Williams. For the following reasons, the Motion is denied.
I. FACTUAL AND PROCEDURAL HISTORY
According to the facts set forth in the Complaint, Defendant Allstate Insurance Company ("Allstate") provided coverage for Plaintiff Celeste Williams, under Policy Number 908936924 02/28. (Compl. ¶ 3.) On December 28, 2006, Plaintiff was involved in a motor vehicle accident, using the car insured under the above policy, resulting in bodily injury and disability, including cervical, thoracic, and lumbar strain and sprain; mild to moderate active L5/S1 radiculopathy bilaterally; dissynergic defacation; functional rectosigmoid obstruction; obstructed defecation; and/or
Immediately after the motor vehicle accident, Plaintiff gave timely notice of her claim to Defendant and submitted proof of the nature and amount of both (1) the medical expenses she incurred as a result of the accident, and (2) the work loss benefits to which she was entitled due to her accident-related disability. (Id ¶¶ 10-11.) Allstate initially accepted and paid Plaintiff's claim for first party medical and wage loss benefits. (Counterclaim ¶ 8; Answer to Counterclaim ¶ 8.) Thereafter, in July 2007, Defendant requested that Plaintiff attend a medical consultation by orthopaedic surgeon Leonard A. Brody, M.D. (Id. ¶ 14.) Plaintiff complied and Dr. Brody issued a report, concluding that Plaintiff had recovered from any soft tissue, spinal injuries resulting from the accident. (Compl. ¶ 14; Counterclaim ¶¶ 9-10; Answer to Counterclaim ¶¶ 9-10.) He noted that Plaintiff's main problem was her chronic constipation, on which he was not qualified to opine. (Compl. ¶ 14.) Based on Dr. Brody's report, on September 6, 2007, Allstate informed Plaintiff and her treating providers of its determination that Plaintiff would not benefit from any further treatment for her neck or back injuries. (Counterclaim ¶ 11; Answer to Counterclaim ¶ 11.)
Subsequently, Defendant requested that Plaintiff attend a physical examination by a gastroenterologist on October 30, 2007. (Counterclaim ¶¶ 12-13; Answer to Counterclaim ¶¶ 12-13.) By way of letter dated October 23, 2007, Plaintiff, through her counsel, unilaterally cancelled the examination with no explanation. (Counterclaim ¶ 14; Answer to Counterclaim ¶ 14, Ex. 3.) Plaintiff then forwarded to Defendant a report by treating gastroenterologist Dr. Fisher, dated December 13, 2007, that attributed Plaintiff's abdominal/constipation complaints to her involvement in the motor vehicle accident of December 28, 2006, and opined that "she is unable to work under the present conditions and I do not anticipate any change in her condition given the currently available medical options." (Compl. ¶ 15.) Following the submission of Dr. Fisher's report, Plaintiff's counsel wrote Defendant indicating that Defendant was not entitled to conduct any further medical examination of Plaintiff, stating:
(Answer to Counterclaim, Ex. 1.) When Allstate attempted to reschedule the examination, Plaintiff's counsel sent another letter, dated March 11, 2008, reiterating that Plaintiff would not undergo any further physical examination. (Id. ¶ 15, Ex. 4.) As a result of Plaintiff's refusal, Allstate stopped paying her first party benefits. (Counterclaim ¶ 18; Answer to Counterclaim ¶ 18.) Allstate never (1) produced a medical report from any physician, which
II. PROCEDURAL HISTORY
On February 27, 2008, Plaintiff filed a Civil Complaint with Bucks County Magisterial District Justice Leonard J. Brown seeking to recover first party wage loss and medical benefits. (Counterclaim ¶ 20; Answer to Counterclaim ¶ 20.) Concurrently, Dr. Daniel Breninghouse filed a separate Civil Complaint before District Justice Brown seeking recovery of his outstanding bills for chiropractic treatment. (Answer to Counterclaim ¶ 20.) The two cases were consolidated. Id. On April 29, 2008, District Justice Brown entered (1) a judgment against Allstate and in favor of Plaintiff for $4,000; and (2) a judgment against Allstate and in favor of Dr. Breninghouse for the following: unpaid chiropractic bills ($2,201.89), court costs ($120), and attorney fees ($500). (Counterclaim ¶ 21; Answer to Counterclaim ¶ 21.) Defendant appealed only the verdict in favor of Plaintiff. (Counterclaim ¶ 22; Answer to Counterclaim ¶ 22.)
On June 10, 2008, Plaintiff filed a Complaint in the Court of Common Pleas of Bucks County, Pennsylvania, alleging that (1) "Defendant's failure to pay medical and work loss benefits to which plaintiff Celeste Williams is entitled is without reasonable foundation, and/or defendant has acted in a wanton or unreasonable manner and in bad faith in refusing to pay said benefits when due," and (2) "Defendant's failure to pay medical and work loss benefits to which plaintiff Celeste Williams is entitled is without reasonable foundation, and/or defendant has acted in a wanton or unreasonable manner and in bad faith in refusing to pay said benefits when due, thus requiring plaintiff Celeste Williams[ ] to secure the services of [counsel] ..." (Compl. ¶¶ 19-20.) That Complaint was removed to federal court by Defendant on June 30, 2008.
Upon removal, Defendant filed an Answer to the Complaint, as well as a Counterclaim for Declaratory Judgment. In the Counterclaim, Defendant alleged that the policy explicitly provided that, "[t]he [insured] shall submit to mental and physical examinations by physicians selected by [Allstate] when and as often as [Allstate] may reasonably require. [Allstate] will pay the costs of such examinations." (Counterclaim ¶ 6.) An endorsement to the policy, effective December 28, 2006, further provided that "[n]o one may bring an action against [Allstate] in any way related to the existence or amount of coverage, or the amount of loss for which coverage is sought, under Part 2—First Party Benefits Coverage, unless there is full compliance with all policy terms...." (Id. ¶ 7.) In light of these contractual provisions, Defendant's Counterclaim requested an order (1) declaring that Plaintiff may not maintain a claim for first party benefits under the policy in connection with injuries allegedly sustained in the December 28, 2006, motor vehicle accident because she failed to comply with the policy; and (2) declaring that Plaintiff may not maintain her claims against Allstate in this lawsuit because it is barred by the policy provision requiring full compliance with its terms prior to bringing an action against Allstate. (Id. at 9.)
On November 25, 2008, following Plaintiff's Answer to the Counterclaim, Defendant moved for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure
III. STANDARD OF REVIEW
Under Rule 12(c) of the Federal Rules of Civil Procedure, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). Judgment under Rule 12(c) will only be granted where, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, the moving party has clearly established that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law. Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988). When considering such a motion, the court must "accept as true allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party." Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir.1989). The court will not, however, accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997).
IV. DISCUSSION
Defendant Allstate premises its motion on the theory that because the precise policy terms conditioned payment of benefits on Plaintiff's submission to medical examinations as often as Allstate may "reasonably require," Plaintiff's undisputed refusal to submit to a medical examination regarding her gastrointestinal injuries constituted a breach of contract, entitling Allstate to curtail continued payment of benefits. In response, Plaintiff contends that the medical examination provision of the policy is rendered unenforceable by section 1796 of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa.C.S.A. § 1701, et seq., which mandates that Defendant petition the state court and show good cause for an order compelling such an examination. As Defendant never filed any such petition or obtained any such order, Plaintiff asserts that its stoppage of benefits was both in violation of the insurance contract and in bad faith.
In light of these conflicting arguments, the Court must determine whether an insurance policy that permits an insurer to demand reasonable examinations of its insured as a condition precedent to coverage is valid and enforceable in light of section 1796(a) of the MVFRL. Such an inquiry requires analysis of an area of state law on which the Pennsylvania Supreme Court has not yet spoken. It is well-established that "[w]ith respect to an issue of state law in a diversity case, when there is no decision from the state's highest court directly on point, we are charged with predicting how that court would resolve the question at issue." Colliers Lanard & Axilbund v. Lloyds of London, 458 F.3d 231, 236 (3d Cir.2006). "When predicting how the state's highest court would resolve the issue, we must take into consideration: (1) what that court has said in related areas; (2) the decisional law of the state intermediate courts; (3) federal cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issue." Id. Although due deference is given to the decisions of all lower Pennsylvania courts, "[t]he rulings of intermediate
Given these principles, the Court begins with an examination of the pertinent statute. Section 1796(a) of the MVFRL permits a court to order a person to submit to a physical or mental examination by a physician upon motion or petition for good cause shown by the insurance company. 75 PA. CONS.STAT. 1796(a).
As previously noted, the Pennsylvania Supreme Court has yet to opine on the breadth of this statute and whether it forecloses conflicting policy provisions. The Pennsylvania Superior Court, however, explicitly discussed the interplay between section 1796 and a policy of insurance that permits an insurance company to unilaterally compel medical examinations, without a showing of "good cause." Fleming v. CNA Ins. Cos., 409 Pa.Super. 285, 597 A.2d 1206 (1991). In Fleming, the appellants were insured under a policy issued to them by appellee CNA at a time when they were involved in a motor vehicle accident. Id. at 1207. Appellants sought treatment for their injuries and submitted to CNA claims for medical bills and lost wages. Id. A year later, when appellants were informed that no further benefits would be paid, they instituted an action to recover basic medical and income loss benefits from CNA. Id. CNA filed a motion to Compel Medical Examination pursuant to Pennsylvania Rule of Civil Procedure 4010,
On appeal, the Pennsylvania Superior Court declined to address the "good cause" requirement of both Rule 4010 and Section 1796, instead focusing on the insurance policy, which stated:
Duties of an Injured Person. The injured person shall:
Id. (emphasis added). The court noted that "[t]his contract provision entered into between the parties clearly requires Appellants' submission to a medical exam to be performed by a doctor chosen by CNA. There is no prerequisite showing of `good cause' necessary." Id. Based on this policy provision alone, the Court affirmed the order of the trial court requiring Appellants to submit to a medical exam. Id. at 1208.
As indicated by Plaintiff, however, Fleming's holding has come under scrutiny by a single jurist from the Pennsylvania Court of Common Pleas, Allegheny County. In a pair of cases—Erie Ins. Exch. v. Dzadony, 39 Pa. D. & C. 3d 33 (1986) and Nationwide Ins. Co. v. Hoch, 36 Pa. D. & C. 4th 256 (1997)—the Honorable R. Stanton Wettick, Jr. deemed unenforceable contractual provisions requiring an insured's submission to medical examinations as a condition precedent to benefits. In Erie, the insureds had filed claims with the insurer for payment of medical bills covering treatment for injuries allegedly sustained in an automobile accident. Id. at 34. The insurer petitioned the court to compel a physical examination. Id. Although the insurer did not demonstrate good cause, it argued that the court should grant its petition because the insureds agreed to submit to examinations under the policy, which stated, "[t]he person we protect shall submit to mental and physical examinations by physicians selected by us when and as often as we may reasonably require. We will pay the cost of such examinations." Id. at 35-36. The court rejected the insurance company's request for several reasons. First, it found that the MVFRL comprehensively regulated the area of when an insured may be compelled to submit to a physical examination and that "[p]rovisions within an insurance contract which impose additional burdens on an insured before the insured may recover these benefits to which the insured is statutorily entitled are inconsistent with this legislative scheme." Id. at 36. As section 1796 of the MVFRL specifically required a petition showing good cause for an insurance company to obtain a medical examination, a contractual clause allowing an insurer to unilaterally demand such an examination was inconsistent with the insurer's obligation to pay benefits whenever the insured submitted reasonable proof supporting his or her claim. Id. at 37-38. Second, the court determined that, even if such a provision could be included in an insurance policy subject to the MVFRL, it
Subsequently, and following the Superior Court's Fleming decision, Judge Wettick had the opportunity to revisit this issue in the case of Nationwide Ins. Co. v. Hoch, 36 Pa. D. & C. 4th 256, 259 (1997). In that case, the insurer petitioned to compel an independent medical examination under both 75 Pa.C.S. § 1796, and the insurance policy, which provided that the insured, if injured, must "submit to examinations by company-selected physicians as often as the company reasonably requires." Id. at 258-59. Citing extensively from its previous decision in Erie, the court deemed the contract provision unenforceable. Id. at 259-63. In response to the insurance company's invocation of Fleming, the court distinguished the Superior Court's ruling as follows:
Id. at 263-64.
Notably, since the issuance of the Hoch decision in 1997, no Pennsylvania appellate court, or any court for that matter, has either affirmatively cited this holding or rejected it as erroneous.
First, notwithstanding its efforts to distinguish itself, the holding of Hoch flies directly in the face of the higher court's ruling in Fleming. Fleming explicitly held that because the insurance policy contained an express provision requiring the insured to submit to a medical examination for a contingency for insurance coverage, the insurer was not required to make a showing of good cause under section 1796(a). Fleming, 597 A.2d at 1207-08. To date, other than the aforementioned decisions in Hoch and Erie, the Superior Court's ruling in Fleming has never been overruled, rejected, criticized, or meaningfully distinguished by any Pennsylvania court. Indeed, on at least two occasions following the Fleming and Hoch decisions, Pennsylvania trial courts have affirmed the principle that an insurer may enforce a policy provision requiring an insured to submit to medical examinations without a separate petition or a showing of good cause. See Hollock v. Erie Ins. Exchange, 54 Pa. D. & C. 4th 449, 532-33 (2002) (noting, albeit in dicta, that an insurance policy containing a provision requiring the insured to submit to a medical examination gives the insurer the right to request that the insured voluntarily undergo such an examination or risk having the insurer deny coverage for failure to cooperate), aff'd, 842 A.2d 409 (Pa.Super.2004); Olsofsky v. Progressive Ins. Co., 52 Pa. D. & C. 4th 449, 479 n. 2 (2001) ("If the insurance policy between the insurer and insured requires the insured to `[s]ubmit to [a] physical examination by a physician of [the insurer's] choice,' the first-party benefits insurer does not have to establish `good cause' under section 1796 as a condition precedent to compelling the insured to undergo a medical examination."). Similarly, several Pennsylvania treatises have affirmatively cited Fleming for the proposition that the existence of such a policy provision negates any need for an order of the court prior to an insurance company's request for a medical examination. See, e.g., 7 STANDARD PENNSYLVANIA PRACTICE § 37:12 (2008) ("An insurance company that provides benefits to its insureds is entitled to an order requiring them to submit to an independent medical examination by a physician of the insurer's choosing, without regard to whether the insurer meets the good cause requirement of ... the Motor Vehicle Financial Responsibility Law ... where the insurance policy contains a provision imposing a duty on the insureds to submit to a physical examination by a physician of the insurer's choice."); 14A SUMM. PA. JUR.2D INSURANCE § 16:140 (2008) ("Although an insurer seeking to compel an insured to submit to a medical examination ordinarily must demonstrate good cause for seeking such an order, where the insurance policy lists among the duty of an insured who is an injured person the obligation to submit to physical examination by a physician of the insurer's choice, then the contract provision entered into between the parties requires the insured to submit to a medical exam to be performed by a doctor chosen by the insurer and no prerequisite showing of good cause is necessary."). As this Court is bound to accord significant weight to rulings of an intermediate appellate court in the absence of a "persuasive indication
Second, both Judge Wettick's and Plaintiff's efforts to distinguish Fleming on public policy grounds are meritless. As noted above, Judge Wettick concluded that the Superior Court, in Fleming, did not address the situation where the insurance policy provision was challenged as being violative of public policy and, thus, was not controlling on any such analysis. Hoch, 36 Pa. D. & C.4th at 263-64. He went on to reason that the contractual provision at issue violated public policy by imposing an added burden on insured's right to recover benefits under the MVFRL. Id. at 261.
Such reasoning, however, is insufficient to meet the "heavy burden required to declare an unambiguous provision of an insurance contract void as against public policy." Generette v. Donegal Mut. Ins. Co., 957 A.2d 1180, 1190 (Pa.2008). "[P]ublic policy is more than a vague goal which may be used to circumvent the plain meaning of the contract." Prudential Prop, and Cos. Ins. Co. v. Jefferson, 185 F.Supp.2d 495, 498 (W.D.Pa. 2002) (citing Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755, 760 (1994)). It requires "reference to the laws and legal precedents and not from general considerations of supposed public interest." Id. While contractual language may be deemed invalid as against public policy when it violates statutory language, "[i]t is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in [declaring that policy to be against public policy]." Neil v. Allstate Ins. Co., 379 Pa.Super. 299, 549 A.2d 1304, 1305 (1988) (quoting Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407, 409 (1941)). "In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts ... contrary to public policy. The courts must be content to await legislative action." Burstein v. Prudential Prop, and Cos. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Paylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234, 1235 (1994)).
Nothing in the plain language or history of the MVFRL suggests that it was intended to interfere with contractual bargaining rights between private individuals or to foreclose any such insurance policy provision.
Moreover, the Court cannot void the contract provision on the basis of Plaintiff's alternative policy argument that such a provision unfairly shifts the burden of establishing or challenging the reasonableness of a medical examination from the corporate insurer—who would only need to
Finally, Plaintiff's attempts to factually distinguish Fleming from the present case are unavailing. Plaintiff contends that, in Fleming, the insurance carrier filed a motion to compel a medical examination, whereas Defendant, in this case, never filed a petition to compel an examination or to otherwise enforce the policy provision. According to Plaintiff, its failure to do so renders its stoppage of benefits improper, irrespective of its contractual rights. Nothing in Fleming, however, requires the filing of such a motion to compel a medical examination where the policy language unequivocally provides for such examinations. Indeed, in light of Fleming's holding that a medical examination provision obviates the need for a showing of good cause, a petition to compel an examination pursuant to such a provision
In short, based on the current state of the law in Pennsylvania, this Court predicts that the Pennsylvania Supreme Court would find that a contractual provision, which requires an insured to submit to reasonable medical examinations as a condition precedent to insurance coverage, is enforceable, notwithstanding section 1796 of the MVFRL. Accordingly, the Court rejects Plaintiff's request that the provision be deemed void.
This conclusion, however, does not foreclose further analysis. Keeping in mind the standard for a motion for judgment on the pleadings, the Court must now interpret the contract to determine whether Plaintiff's failure to submit to Defendant's request for a medical examination with a gastroenterologist entitled Defendant, as a matter of law, to stop benefits. As a threshold matter, "[t]he task of interpreting a contract is generally performed by a court, rather than by a jury .... [t]he goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument." Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983) (internal citations omitted). The insurance contract must be construed as a whole with all of its provisions given their proper effects. Luko v. Lloyd's London, 393 Pa.Super. 165, 573 A.2d 1139, 1142 (1990). Where "the language of an insurance contract is clear and unambiguous, a court is required to enforce that language." Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.1999) (citing Standard Venetian Blind 469 A.2d at 566). Where an insurance policy provision is ambiguous, however, it is to "be construed against the insurer and in favor of the insured." McMillan v. State Mut. Life Assur., 922 F.2d 1073, 1075 (3d Cir.1990); State Farm Fire & Cas. Co. v. MacDonald, 850 A.2d 707, 710 (2004).
As noted above, the contract of insurance, in this case, is unambiguous, stating that "[t]he eligible person shall submit to mental and physical examinations by physicians selected by us when and as often as we may reasonably require. We will pay the costs of such examinations." (Counterclaim ¶ 6 (emphasis added).) Although it is undisputed that Plaintiff refused to attend a physical examination required by Defendant, whether that examination was "reasonably requir[ed]" is less than obvious. Had Plaintiff simply based her refusal to attend the examination on Defendant's failure to obtain an order under section 1796, her non-cooperation could be deemed a contractual violation, which, in turn, would (1) permit Allstate to discontinue benefits and (2) preclude, under the terms of the contract, Plaintiff's lawsuit. Plaintiff, however, vigorously argues that Defendant's request for the examination was unreasonable and, thus, did not contractually require her to attend.
V. CONCLUSION
In light of the foregoing, the Court finds that Allstate's contract validly entitled it to reasonably request medical examinations of its insured, without a separate petition or showing of good cause, prior to paying or continuing to pay medical benefits. Nonetheless, the reasonableness of that request, and the justification for Plaintiff's refusal to attend the examination, remain at issue, thereby precluding judgment on the pleadings.
An order follows.
ORDER
It is further
FootNotes
75 PA. CONS.STAT. 1796(a).
Aside from the fact that Plaintiff does not provide copies of any of these unpublished rulings, she does not assert that they even touched on the issue before this Court of whether a conflicting contractual provision is enforceable under the MVFRL. Accordingly, the Court gives this argument little weight.
As such, Henzler recognized that an insurance contract can, in fact, contain provisions "in derogation of" a statutory provision. In such cases, the statutory enactment is meant to govern individuals not bound or covered by the contractual provisions who seek benefits.
(Pl.'s Sur-reply Br. 6-7.)
Defendant also argues that Plaintiff cannot maintain her bad faith claim under 42 Pa.C.S. § 8371 since "[a] request permitted by the terms of insurance policy ... cannot, as a matter of law, form the basis for a bad faith claim." (Def.'s Mem. Supp. Mot. Judg. on the Pleadings 14.) However, while Defendant would be entitled to a dismissal of the bad faith claim if its request for the medical examination was reasonable, the bad faith claim could theoretically proceed in the face of an unreasonable request for a medical examination. As the Court has already found an issue of fact as to the reasonableness of Defendant's request, we decline to dismiss the bad faith allegation.
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