The URL can be used to link to this page

Home My WebLink About2011-4327 STATE FARM MUTUAL AUTOMOBILE : IN THE COURT OF COMMON PLEAS OF INSURANCE COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : MI KYONG CHOI, : DEFENDANT : NO. 11-4327 CIVIL IN RE: PETITION TO COMPEL INDEPENDENT MEDICAL EXAMINATION ORDER OF COURT th AND NOW , this 27 day of June, 2011, upon consideration of State Farm Mutual Automobile Insurance Company’s Petition To Compel Independent Medical Examination, Mi Kyong Choi’s Answer thereto with New Matter, and State Farm’s Reply to New Matter; IT IS HEREBY ORDERED AND DIRECTEDGRANTED that the Petition is . Mi Kyong Choi is directed to submit to an Independent Medical Examination by a doctor selected by Disability Management Consultants. The Independent Medical Examination shall be scheduled by Disability Management Consultants with reasonable accommodation to Mi Kyong Choi, but shall be conducted on or before August 26, 2011. By the Court, M. L. Ebert, Jr., J. Curtis C. Johnston, Esquire Attorney for Plaintiff David Wisneski, Esquire Attorney for Defendant STATE FARM MUTUAL AUTOMOBILE : IN THE COURT OF COMMON PLEAS OF INSURANCE COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : MI KYONG CHOI, : DEFENDANT : NO. 11-4327 CIVIL IN RE: PETITION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OPINION AND ORDER OF COURT Ebert, J., June 27, 2011 - Background Pending before the Court is Petitioner State Farm Mutual Automobile Insurance 1 Company’s Petition to Compel Independent Medical Examination (“IME”) of Respondent Mi Kyong Choi. Respondent is an insured driver listed under the insured’s, Young Jin Choi, motor vehicle insurance policy (#: 7022-8431-C23-38I) pursuant to the Pennsylvania Motor Vehicle 23 Financial Responsibility Law (“MVFRL”). Respondent asks the Court to deny Petitioner’s IME request for failure to comply with the statutory requirements under 75 Pa.C.S.A. § 1796 4 (Mental or physical examination of person). Petitioner asserts, under the written provisions of the insurance policy (“the policy”), a contractual entitlement to an Order compelling the 5 Respondent submit to an IME free of the statutory requirements of section 1796. 1 Pet’r’s Pet. to Compel Independent Medical Examination, May 13, 2011 [hereinafter Pet’r’s Pet]. 2 75 Pa.C.S.A. § 1701, et seq. 3 Pet’r’s Pet. ¶ 3. 4 Mi Kyong Choi’s Answer with New Matter to State Farm Mutual Automobile Insurance Company’s Petition to Compel Independent Medical Examination, ¶ 46 June 8, 2011 [hereinafter Resp’t Answer]. 5 Pet’r’s Pet. ¶ 24. 2 Discussion Contractual Provisions vs. Statutory Requirements “[T]he Pennsylvania Supreme Court has yet to opine on the breadth of [section 1796] and whether it forecloses conflicting policy provisions”, however, the Superior Court has provided a line of cases from the late 1980’s, early 1990’s, to guide with interpretation of 75 Pa.C.S.A. §1796 (hereinafter §1796). Williams v. Allstate Ins. Co., 595 F. Supp. 2d 532, 538 (E.D. Pa. 2009); see Fleming v. CNA Ins. Cos., 597 A.2d 1206 (Pa. Super. Ct. Oct. 9, 1991); State Farm Ins. Cos. v. Swantner, 594 A.2d 316 (Pa. Super. Ct. July 3, 1991); Horne v. Sentry Ins. Co., 588 A.2d 546 (Pa. Super. Ct. Mar. 15, 1991); State Farm Ins. Cos. v. Hunt, 569 A.2d 365 (Pa. Super. Ct. 1990); State Farm Mutual Auto. Ins. Co. v. Zachary, 536 A.2d 800 (Pa. Super. Ct. 1987). This Court agrees with the analysis in Williams stating Fleming has remained controlling and “has never been overruled, rejected, criticized, or meaningfully distinguished by any Pennsylvania court” in cases involving a request for an IME pursuant to a filed insurance policy. Williams, 595 F. Supp. 2d at 541 (citing Fleming and declining to afford weight to Judge Wettick’s holding in Nationwide Ins. Co. v. Hoch, 36 Pa. D. & C.4th 256 (1997) stating, “notwithstanding its efforts to distinguish itself, the holding of Hoch flies directly in the face of the higher court’s ruling in Fleming.”). In Fleming, the Superior Court affirmed a trial court order granting the insurer’s motion to compel an IME based on the insurance policy language as a contract provision entered into between both parties. Fleming, 597 A.2d at 1207. This Court agrees with Williams that “[n]othing 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.” Williams, 595 F. Supp. 2d at 542. Additionally, as addressed in 3 Williams, an argument that contract provisions within an insurance contract in conflict with statutory language must yield is unnecessary when the contractual provisions support the purpose of the statute. See Id. at 542-43 n.5; see also Generette v. Donegal Mutual Ins. Co., 957 A.2d 1180, 1190 (Pa. 2008). The “twin purposes” of the MVFRL is to prevent the insured from “ignor[ing] reasonable limitations on treatment by continuing in treatment without validation or justification” and prevent the insurer from “harassment, untoward intrusion and unwarranted examination” of the insured upon the policy. Id. (quoting Swantner, 594 A.2d at 322) (internal quotations omitted). In the instant case, this Court is presented with an insurance policy provision stating: person Whenever the mental or physical condition of a is material to any claim for medical expenses or income loss benefits, a court of competent jurisdiction person may order the to submit to mental or physical examination by a physician. personperson If a fails to comply with the order, the court may order that the be denied benefits until he or she complies. Pet’r’s Pet., Exhibit A, State Farm Car Policy Booklet p.16 (emphasis in original). Petitioner’s insurance policy with Respondent not only supports the purpose of §1796(a), but comes so close as to almost mirror the language. See 75 Pa.C.S.A. §1796(a). Existing contract provisions between parties, not in conflict with the statutory purpose of MVFRL, will be the standard for review in determining the outcome of an order by this Court compelling an IME. Therefore, this Court, in agreement with the holding in Fleming, issues the following order: th AND NOW , this 27 day of June, 2011, upon consideration of State Farm Mutual Automobile Insurance Company’s Petition To Compel Independent Medical Examination, Mi Kyong Choi’s Answer thereto with New Matter, and State Farm’s Reply to New Matter; 4 IT IS HEREBY ORDERED AND DIRECTEDGRANTED that the Petition is . Mi Kyong Choi is directed to submit to an Independent Medical Examination by a doctor selected by Disability Management Consultants. The Independent Medical Examination shall be scheduled by Disability Management Consultants with reasonable accommodation to Mi Kyong Choi, but shall be conducted on or before August 26, 2011. By the Court, M. L. Ebert, Jr., J. Curtis C. Johnston, Esquire Attorney for Plaintiff David Wisneski, Esquire Attorney for Defendant 5