March 5, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1667

                        DENNIS VANHAAREN,

                      Plaintiff, Appellant,

                                v.

         STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. David M. Cohen, U.S. Magistrate Judge]
                                                      

                                           

                              Before

                       Selya, Circuit Judge,
                                           

               Higginbotham,* Senior Circuit Judge,
                                                  

                     and Cyr, Circuit Judge.
                                           

                                           

   Francis M. Jackson for appellant.
                     
   Michael  S. Wilson with whom Louise K. Thomas and Pierce, Atwood,
                                                                    
Scribner, Allen, Smith &amp; Lancaster were on brief for appellee.
                                

                                           

                          March 5, 1993
                                           

          CYR, Circuit Judge.  The district court determined that
          CYR, Circuit Judge.
                            

plaintiff  Dennis  VanHaaren  had  forfeited  coverage  under the

                  

*Of the Third Circuit, sitting by designation.

uninsured motorist  policy issued by defendant  State Farm Mutual

Automobile Insurance Company ("State Farm") by not complying with

State Farm's  requests that he  submit to an  independent medical

examination ("IME").  The district court granted summary judgment

in favor of State Farm, and VanHaaren appealed.  We affirm.

                                I

                            BACKGROUND
                                      

          VanHaaren  was involved in an automobile collision with

an uninsured motorist on  July 1, 1989.  Alleging permanent  back

injury,  VanHaaren soon  exhausted  the  $5,000 medical  payments

coverage  provided  under  his State  Farm  automobile  insurance

policy,  and in March 1991  he submitted a  $100,000 claim repre-

senting the full amount of the uninsured motorist coverage  under

the State Farm  policy.  The State Farm policy contained a provi-

sion  ("IME clause")  which  required VanHaaren  to submit  to an

"examin[ation]  by physicians chosen and  paid by [State Farm] as

often as [State Farm] reasonably may require."

          On April 8,  and again on May 2, 1991, State Farm wrote

VanHaaren's  counsel requesting  confirmation that  VanHaaren was

residing in Florida, so that an  IME could be conducted in Flori-

da.   On  May 17,  VanHaaren's counsel  advised  State Farm  that

VanHaaren had  relocated to  North Carolina  to take a  job at  a

summer resort,  and suggested that  "a realistic approach  to the

case would  be to allow  [State Farm] to  obtain an [IME]  in the

Ashville, North Carolina area  and then to set up  an arbitration

or mediation."   The State Farm  representative responded, noting

that the policy included an  arbitration provision.  He requested

that  VanHaaren's  counsel advise  State Farm  "where [VanHaaren]

will be for a reasonable  period of time so I may  refer [sic] to

the proper State Farm office to  make [IME] arrangements."  It is

conceded that VanHaaren's counsel  did not respond to the  latter

request.

          On September 13,  VanHaaren brought an action  in Maine

Superior  Court, which  State  Farm promptly  removed to  federal

district court.  Counsel to State Farm wrote VanHaaren's  counsel

on  December 16,  requesting  confirmation  that  VanHaaren would

attend an IME scheduled for January 14, 1992, in Portland, Maine.

One  week later,  VanHaaren's  counsel declined  to confirm  Van-

Haaren's  attendance at the  IME, noting  that he  considered the

usual  diagnoses of  the  orthopedist chosen  by  State Farm  too

"conservative,"  inviting State  Farm to  propose other  orthope-

dists,  and inquiring  why  the IME  could  not be  conducted  in

Florida  where VanHaaren  was  again residing.   Otherwise,  Van-

Haaren's counsel suggested, State Farm "may bring a motion for an

examination in the [district court]."   On January 10, 1992, over

VanHaaren's  opposition, the  presiding magistrate  judge granted

State  Farm's motion to compel VanHaaren to attend the IME sched-

uled for January 14 in Portland.  VanHaaren complied.

          In  May 1992  the district  court granted  State Farm's

motion  for  summary  judgment  on the  ground  that  VanHaaren's

conduct  before and after filing suit constituted a breach of the

                                3

IME clause, barring recovery  under the uninsured motorist provi-

sion in the State Farm policy.

                                II

                            DISCUSSION
                                      

A.   Applicable State Law
                         

          We review a grant of summary judgment de  novo, employ-
                                                        

ing the same criteria incumbent upon the district court.  Pedraza
                                                                 

v. Shell  Oil Co., 942 F.2d 48, 50 (1st Cir. 1991), cert. denied,
                                                                

112 S. Ct. 993 (1992).  Summary judgment is appropriate where the

record, including  the pleadings, depositions, answers  to inter-

rogatories,  admissions on  file, and  affidavits, viewed  in the

light most favorable  to the nonmoving party,  reveals no genuine

dispute as to any material fact and the moving party  is entitled

to judgment as a matter of law.  See Fed. R. Civ. P. 56(c); Canal
                                                                 

Ins. Co.  v. Benner,     F.2d     ,     (1st Cir.  1992) [No. 92-
                   

1360,  1992 U.S.  App.  LEXIS 30889,  at  *5 (1st  Cir.  Nov. 24,

1992)].

          Although the  parties agree that Maine  law informs the

present  determination  as  to the  materiality  of  any fact  in
                                               

genuine dispute,  see Blanchard  v. Peerless Ins.  Co., 958  F.2d
                                                      

483,  485 (1st Cir. 1992),  the Maine Supreme  Judicial Court has

yet to  address the pivotal issue presented by this appeal:  what

material facts  must an insurer establish  beyond genuine dispute

to warrant summary judgment against a policy holder  who breaches

an  IME  clause?   Absent  controlling state  court  precedent, a

                                4

federal  court sitting in diversity may certify a state law issue

to the state's  highest court, or undertake  its prediction "when

the course  [the] state courts  would take is  reasonably clear."

Porter  v. Nutter, 913 F.2d  37, 41 n.4  (1st Cir. 1990) (quoting
                 

Bi-Rite Enters., Inc.  v. Bruce Miner Co., 757 F.2d  440, 443 n.3
                                         

(1st  Cir. 1985)).  See  also American Waste  &amp; Pollution Control
                                                                 

Co.  v.  Browning-Ferris, Inc.,  949  F.2d 1384,  1386  (5th Cir.
                              

1991);  S &amp; R Metals,  Inc. v. C.  Itoh &amp; Co., 859  F.2d 814, 816
                                             

(9th Cir. 1988).  The prognostic chore is reasonably straightfor-

ward in the instant case.

          State Farm  argues that  Maine law would  follow estab-

lished contract  law principles, permitting the  insurer to avoid

all  liability  under its  insurance  contract  where the  policy

holder commits an anticipatory breach of a condition precedent to

coverage by "refusing" to  submit to an IME, irrespective  of any

prejudice to  the insurer.  In  our view, its assessment  is less

than prescient.

          In Ouellette v. Maine Bonding &amp; Cas. Co., 495 A.2d 1232
                                                  

(Me.  1985), the Maine Supreme Judicial Court, sitting as the Law

Court, explicitly  "abandon[ed]  the  analysis  of  a  negotiated

contract," under which an  insurer's performance would be excused

on  the bare showing that the insured breached a condition prece-

dent  to coverage  by  inexcusably delaying  notification of  the

policy claim for four years.  Id. at 1235.  Rather, the Law Court
                                 

held that the insurer  must prove "that the notice  provision was

in  fact breached, and . . .  that the insurer  was prejudiced by
                                                                 

                                5

the insured's  delay."  Id. (emphasis added).   Ouellette brought
                                                         

Maine  law in  line with  the growing  majority of  jurisdictions

which acknowledge that a post-occurrence  forfeiture of insurance

coverage  is rarely to be invoked, absent actual prejudice to the

insurer, because  (1) insurance  policies are contracts  of adhe-

sion,  (2) the insured has prepaid the premiums for coverage, and

(3) insurance coverage furthers broader public policy aims.  See,
                                                                

e.g., St. Paul Fire &amp;  Marine Ins. Co. v. Petzold, 418  F.2d 303,
                                                 

305 (1st Cir.  1969) (applying  New Hampshire law  to "notice  of

claim"  provision); Johnson  Controls, Inc.  v. Bowes,  381 Mass.
                                                     

278,  282-83,  409 N.E.2d  185,  188  (1980) ("notice  of  claim"

provision); cf. Piro  v. Pekin  Ins. Co., 514  N.E.2d 1231,  1234
                                        

(Ill. App. Ct.  1987) ("Declaring forfeiture  of the benefits  of

[fire] insurance  bought  and paid  for  based solely  on  events

occurring  subsequent to  the event  of the  insured-against loss

should be avoided.").  As Maine law plainly requires a showing of

prejudice for  "notice of  claim" violations, we  can discern  no

sound  reason  to anticipate  a  less  stringent requirement  for

breach of  an IME clause  in an  uninsured motorist policy.   Cf.
                                                                 

Bankers Ins. Co. v.  Macias, 475 So.2d 1216, 1217-18  (Fla. 1985)
                           

(breach of "notice of claim" provision raises rebuttable presump-

tion  of prejudice  to  insurer, whereas  breach of  "cooperation

clause" in policy raises no  presumption but requires showing  by

                                6

insurer that  breach was  material and caused  substantial preju-

dice).2

          State Farm endeavors to  forfend against the portent of

the  Ouellette decision on the  ground that the "prejudice" issue
              

was  not preserved in the  district court.   State Farm correctly

points out that VanHaaren neither cited to the Ouellette decision
                                                        

nor argued to  the district  court that Maine  law would  require

proof of prejudice.  Although the district court acknowledged the

                    

     2VanHaaren contends that the IME clause is unenforceable, as
it violates  the public policy enunciated in  the Maine uninsured
motorist statute, Me. Rev.  Stat. Ann. tit. 24-A,   2902  (1990 &amp;
Supp. 1991), by impermissibly  constricting the scope of mandated
uninsured motorist coverage.   First, VanHaaren waived this claim
by failing to  raise it before the district  court.  Sandstrom v.
                                                              
Chemlawn Corp.,  904 F.2d 83, 87 (1st Cir. 1990).  Second, courts
              
quite  generally  have  found  that reasonable  "proof  of  loss"
obligations serve  a legitimate purpose, affording  the insurer a
more objective  accounting of the insured's  injuries or damages.
See McKimm  v. Bell, 790 S.W.2d 526,  528 (Tenn. 1990) (and cases
                   
cited  therein); cf. Huntt v. State Farm Mut. Auto. Ins. Co., 527
                                                            
A.2d 1333,  1335 (Md. App.  1987) (noting that  no-fault personal
injury protection ("PIP") coverage was never "intended to provide
a PIP  claimant with a blank  check").  Third, the  IME clause is
readily distinguishable from  other types  of uninsured  motorist
policy restrictions  invalidated by  the Maine  Law Court.   See,
                                                                
e.g., Lanzo  v. State Farm Mut.  Auto. Ins. Co., 524  A.2d 47, 50
                                               
(Me. 1987)  (statutory term "hit-and-run" does  not allow insurer
to restrict  uninsured motorist coverage  to accidents  involving
physical  contact).  Given the relative ease of compliance with a
"reasonable" IME request,  an IME clause does  not unduly circum-
scribe  uninsured  motorist  coverage  or remove  it  beyond  the
insured's control.   Fourth, the  Law Court has  suggested, quite
clearly, that insurers are  entitled to the protection of  an IME
at  "critical stages"  in the  uninsured motorist  claim process.
See Home Ins. Co. v. Horace Mann Ins. Co., 603 A.2d 860, 861 (Me.
                                         
1992).  Finally, the principal  case upon which VanHaaren  relies
is  inapposite.  Benson v.  Nationwide Mut. Ins.  Co., 238 S.E.2d
                                                     
683  (S.C. 1977),  turns on  the peculiar  language of  the South
Carolina  uninsured motorist insurance  statute ("[T]he uninsured
motorist  provision  shall  not  require  anything not  otherwise
herein  provided for. . . ."),  which disallows  all proscriptive
policy provisions not specifically authorized by statute.  Id. at
                                                              
684.

                                7

significance of Ouellette, it  expressly bypassed the issue since
                         

VanHaaren had neither  contended that State Farm  was required to

show  "prejudice" under Maine law, nor  argued that prejudice had

not been established.  Although loathe to conclude that VanHaaren

waived the "prejudice"  issue, we do so in light  of the district

court's pellucid  determination that VanHaaren had  made no claim

that State Farm was  either required to demonstrate  prejudice or

failed  to do so.3   In these  circumstances, VanHaaren's failure

to move  for reconsideration of  the district court  order should

not be excused.  See Boston Celtics Ltd. Partnership v. Shaw, 908
                                                            

F.2d  1041, 1045  (1st Cir.  1990); Brown  v. Trustees  of Boston
                                                                 

Univ., 891 F.2d 337, 357 (1st Cir. 1989), cert. denied, 496  U.S.
                                                      

937 (1990).

B.  Breach of IME Clause
                        

          VanHaaren nevertheless contends that State  Farm failed

to  establish beyond  reasonable disputation the  other essential

element of  its defense     that he  breached the  IME clause  by

"refusing" to comply with State Farm's reasonable IME requests.

                    

     3The district court opinion could not have been more clear:

     The plaintiff,  however, does not argue  that the court
     must  find  prejudice  resulting  from  his  failure to
     submit to an IME  upon request in order to  relieve the
     defendant of its obligation  to him under the uninsured
     motorist provisions of the policy.  Nor does he contest
     the defendant's  assertion that the amount  of time and
     money  spent  by State  Farm to  secure  an IME  of the
     plaintiff constitutes prejudice.  He simply argues that
     any expenses incurred by State Farm are a result of its
     failure to cooperate with him.

                                8

          As  a  general  rule,  whether  there  was  substantial

compliance with a condition precedent in an insurance contract is

a question of fact ill-suited to disposition on summary judgment.

See,  e.g., Piro,  514 N.E.2d  at 1234  (noting that  whether the
                

insured provided  necessary information "too late"  normally is a

question  for  the factfinder).   Under  Maine  law, even  if the

insurer  suffers  appreciable  prejudice  from  the  breach,  the

insured  may still  quell  the insurer's  affirmative defense  by

proffering a  valid excuse  or justification  for the  failure or

refusal to comply.   See Ouellette, 495 A.2d at 1234 (noting that
                                  

if insured's delay was "unreasonable or unexplained," insurer may

avoid coverage by demonstrating  "prejudice"); cf. Hines v. State
                                                                 

Farm Fire &amp; Cas. Co., 815 F.2d 648, 652 (11th Cir. 1987) (holding
                    

that, under  Georgia law,  asserted justification for  failure to

provide  tax  returns foreclosed  summary  judgment  on issue  of

breach);  St. Paul, 418 F.2d  at 305 (requiring  that jury deter-
                  

mine,  under  New Hampshire  law,  whether  insured's failure  to

comply with  condition was unexplained,  unexcused, unreasonable,

or  arbitrary); cf.  also Matthias  v. Government  Employees Ins.
                                                                 

Co.,  517 N.Y.S.2d 540, 541  (N.Y. App. Div.  1987) (finding that
   

insured failed to defeat insurer's defense by showing  a justifi-

cation for  repeated non-compliance); Pennsylvania Gen.  Ins. Co.
                                                                 

v.  Becton, 475 A.2d  1032, 1035 (R.I.  1984) (using multi-factor
          

test, requiring  factfinder to weigh length of delay, reasons for
                                                                 

delay, and probability of prejudice to insurer).
     

                                9

          Even if  we were  to  accord VanHaaren  the benefit  of

every conceivable  doubt, allowing that he  may have misperceived

the  intent or  urgency  of State  Farm's  inquiries on  April 8,

May 2,  and  June 10,4  the  ongoing  pattern  of  noncooperation

                    

     4IME  clauses, and  similar  provisions,  differ from  other
types of conditions precedent in that the insured's obligation is
not  automatically triggered  by the  occurrence which  forms the
basis for the insurance claim.  Rather, the insurer must activate
the contractual  obligation  by communicating  a  reasonable  IME
request to the insured.   Cf. Weber v. General Acci. Fire  &amp; Life
                                                                 
Assur.  Corp.,  10 Ohio  App.3d. 305,  307,  462 N.E.2d  422, 424
             
(1983) ("sworn examination" clause  not a "self-executing" condi-
tion  precedent,  and  there  can be  no  noncompliance  absent a
"demand"  by  insurer).   State Farm  posits  that it  made three
reasonable IME requests on April 8, May 2, and June 10, 1991, all
prior  to  the date  VanHaaren filed  suit.   On the  other hand,
VanHaaren's  attorney  characterizes State  Farm's pre-litigation
inquiries  as exploratory  settlement  negotiations.   Thus,  the
asserted excuse for VanHaaren's  noncompliance is tantamount to a
claim of mutual miscommunication.
     Viewed in  isolation from  the events which  followed, these
initial  communications might reasonably  be thought sufficiently
indefinite to  have  excused VanHaaren's  failure  to  cooperate.
Much  of  the language  in the  State  Farm letters  was arguably
precatory (e.g.,  I "would  like your  agreement .  .  ." and  "I
               
request permission  . . .").   The IME clause provides  that Van-
Haaren must  submit to an  examination "by physicians  chosen" by
State Farm, conceivably suggesting that the insured might reason-
ably reserve assent  until such time as a  doctor was "chosen" by
State Farm.   See Ray  v. Blue Alliance  Mut. Ins. Co.,  594 A.2d
                                                      
1110,  1111  (Me.  1991)  (ambiguous  policy  language  construed
against insurer).   Finally, State Farm's  initial letters failed
to designate  specific or  comprehensive IME terms  (date, place,
name of  physician).  See Ferro v.  Gebbia, 252 So.2d 545, 546-47
                                          
(La. App. 1971) (insurer  must notify insured that it  has sched-
uled  doctor's  appointment  at  specific time  and  place);  cf.
                                                                 
Huggins v. Hartford Ins. Co., 650 F. Supp. 38, 42 (E.D.N.C. 1986)
                            
(requests for oral examination  must specify date, place, examin-
er, and not leave it up to plaintiff to get in  touch with insur-
er);  Saft America, Inc. v.  Insurance Co. of  North America, 155
                                                            
Ga.  App.  500, 501,  271 S.E.2d  641,  642 (1980)  (insurer must
designate terms  of oral examination; not sufficient to set forth
agreeable choices for insured, and ask insured to decide; minimum
requirement  for valid "request"  is identification of examiner);
Weber,  10  Ohio App.3d.  at 307,  462  N.E.2d at  424 (defective
     
"demand"  for  "sworn  exam"  contained  precatory  language  and
shifted arrangement of details to insured).

                                10

unmistakably  exceeded the  bounds  of  reasonableness by  Decem-

ber 16, 1991, when he flatly rejected State Farm's definitive and

objectively  reasonable  IME  request,  and  invited  State  Farm

instead to pursue  a judicial remedy  which would compel  compli-

ance.  Even if Maine  law permitted an insured to test  the "rea-

sonableness"  of  an  IME  request prior  to  compliance  without

thereby committing an incurable  breach, see Kay v. Aetna  Cas. &amp;
                                                                 

Sur.  Co., 152  So.2d 198,  199-200 (Fla.  App. 1963)  (fact that
         

plaintiff  seeks "legal ruling as  to whether he  was required to

submit  to  the [IME]"  should  not constitute  breach  of policy

condition); cf. Insurance Co.  of North America v. Goelz,  4 Ill.
                                                        

App.3d 862, 863,  282 N.E.2d  15, 16 (1972)  (good faith  refusal

based on "honest mistake" will not work forfeiture "without first

giving the insured a right  to comply"), the insured must act  in

good faith in asserting a challenge to the IME request.

          VanHaaren's  objections to  the terms  of the  December

1991 IME request belie a "good faith" challenge.  See Falagian v.
                                                              

Leader Nat'l Ins. Co., 167 Ga. App. 800, 801, 307 S.E.2d 698, 700
                     

(1983) (reasonableness  of IME  terms  is a  jury question,  "but

there are instances in which it can be decided as a matter of law

                    

     Notwithstanding  his protestations of "good faith" misunder-
standing,  however, VanHaaren's  later  suit against  State  Farm
sealed the breach since it foreseeably deprived State Farm of the
valuable opportunity  to assess and settle the  claim without the
attendant  costs and  burdens  of litigation.    Cf. Falagian  v.
                                                             
Leader Nat'l Ins. Co., 167 Ga.  App. 800, 801-02, 307 S.E.2d 698,
                     
700 (1983) (finding refusal to comply where insurer had scheduled
an IME,  which the insurer  cancelled when the  insured's counsel
promised  the insurer  he would  reschedule  the IME  but instead
filed suit).

                                11

by  the court").   An IME clause  is a condition  precedent which

imposes  a duty  of performance  on the  insured.   A contracting

party's insistence, "wilfully or by mistake," on preconditions to

performance  not stated in the  contract, constitutes a breach by

anticipatory repudiation.    See 4  Arthur L.  Corbin, Corbin  on
                                                                 

Contracts   973, at 910 (1951) ("Such a repudiation is condition-
         

al in character, it is  true; but the condition is  a performance

to  which the repudiator has no right."); cf. Martell Bros., Inc.
                                                                 

v. Donbury,  Inc., 577 A.2d 334, 337  n.1 (Me. 1990) (a "distinct
                 

and unequivocal" repudiation entitles  the injured party to treat

the contract  as "entirely rescinded," and  its obligations under

the contract  as discharged); cf.  also REA  Express v.  Interway
                                                                 

Corp., 538 F.2d 953, 955 (2d Cir. 1976) (New York law).
     

          VanHaaren's  objection to  the  final  State  Farm  IME

request  on the  ground that  the selected  physician's diagnoses

were too  conservative was  just such an  untenable precondition.

The  IME clause required VanHaaren to submit to an "examin[ation]

by  physicians chosen"  by  State Farm  as  often as  State  Farm

"reasonably  may require."    The  IME  clause would  afford  the

insurer little protection if the insured were entitled to dictate

the  identity of the examining  physician.  Thus,  the IME clause

reasonably  cannot be interpreted as  affording an insured a veto

power  based  on  physician  preference,  as  distinguished  from

reasonable and timely objection  to the scheduled location, date,

or  time, or to particular risks which the examination might pose

to the health of the insured.   See, e.g., Kay, 152 So.2d at 199-
                                              

                                12

200 (insured did not breach IME clause by objecting, on advice of

physicians,  to lower  GI examination  which would  aggravate his

physical condition, even though he was later ordered  to comply).

The insured's  preference for an examining  physician more likely

to  provide a  "favorable"  (i.e., gloomier)  diagnosis certainly
                                 

cannot qualify as a  reasonable basis for failing to  accommodate

the IME request, unless the clause is to be rendered meaningless.

See, e.g.. Allstate Ins. Co. v.  Graham, 541 So.2d 160, 162 (Fla.
                                       

App. 1989) (holding "unreasonable,"  under Florida law, insured's

refusal to submit to  IME on counsel's advice that  physician was

not sufficiently "independent"); Lockwood v. Porter, 98 N.C. App.
                                                   

410,  411, 390  S.E.2d  742, 743  (1990) (holding  that insurer's

affirmative  defense was  established as  a matter  of  law where

insured  refused to submit  to IME  "because he  did not  want to

waste his time with a doctor who was not going to do anything for

him and would report to [the insurer] that nothing was wrong with

him when that was not so").

          VanHaaren's complaint with the place for conducting the

IME was  objectively unreasonable  as  well, for  at least  three

reasons.  First, VanHaaren chose  Portland, Maine as a convenient

forum for instituting suit against State Farm, which entailed the

reasonable prospect  that he  would be  required to make  himself

available in  the forum  district for court  appearances, deposi-

tions, and other reasonably foreseeable  examinations relating to

the  matter in  litigation.   Thus, it  would be  unreasonable to

indulge a  presumption that VanHaaren would  be inconvenienced by
                      

                                13

an  IME  in Maine,  especially  since State  Farm  scheduled Van-

Haaren's  IME and deposition for the same  day, in the same city.
                                                                

Second,  in the  letter  rejecting State  Farm's December 16  IME

request,  counsel indicated  that VanHaaren  might be  willing to

come  to Maine  for an  IME if  State Farm  were to  designate an

orthopedist acceptable to him.5   Finally, viewed in the  context

of State Farm's earlier expressions of willingness to schedule an

IME  wherever VanHaaren  was residing,  coupled with  VanHaaren's
                                     

repeated  failure to  identify  his current  place of  residence,

VanHaaren's objection to an IME in Maine rings hollow.

          Nor is  VanHaaren saved  by his eventual  submission to

the court order compelling his attendance at the  January 14 IME.
               

Were  it otherwise, IME clauses  would be reduced  to little more

than invitations to litigate IME requests.   As the unreasonable-

ness  of  VanHaaren's  earlier repudiation  was  beyond  dispute,

Falagian, 167 Ga.  App. at 801, 307 S.E.2d at  701,6 State Farm's
        

                    

     5The letter stated:  "Under all the circumstances I strongly
suggest  that  you consider  the  possibility  of an  independent
medical  examination where  Mr. VanHaaren  is located  in Florida
rather than here [Maine]  or we agree on a  different physician."
                                                               
(Emphasis added.)

     6The  theory advanced  by our  dissenting brother  was never
argued by the  appellant.   Absent any suggestion  in the  record
below  or on appeal, we  cannot accept the  sua sponte assumption
                                                      
indulged in the dissent that VanHaaren's counsel somehow may have
exceeded his representational authority  in responding to the IME
requests.  (Much less would we assume "bad faith" on  the part of
counsel.  See infra at p. 18.)  The court below, unlike those  in
                   
the cases cited  in the dissent, could not have  been expected to
allocate responsibility, as between  attorney and client, for the
insured's responses to IME  requests.  We leave any  such alloca-
tion to whatever forum  might be invited, by attorney  or client,
to undertake it.

                                14

obligation to cover VanHaaren's  claim for the alleged occurrence

was excused upon VanHaaren's unequivocal repudiation.7

                               III

                            CONCLUSION
                                      

          As no  reasonable trier  of fact  could find  that Van-

Haaren  acted  in good  faith in  refusing  to comply  with State

Farm's   December 16  IME  request,  and  VanHaaren  inexplicably

refrained from  raising the prejudice issue  below, summary judg-

ment for State Farm was proper.8

          Affirmed.
                  

                    

     7VanHaaren belatedly argues that State Farm waived its right
to  substantial compliance with  the IME  request because  it (1)
proceeded to  obtain the  court  order to  compel the  presumably
"unnecessary" IME,  (2) accepted VanHaaren's compliance  with the
court order,  and (3) made a settlement offer on the basis of the
IME  results.   As  these  bootstrapping  arguments were  neither
presented to the district court, see Brown,  891 F.2d at 357, nor
                                          
presented  in appellant's  opening brief  on appeal,  see Pignons
                                                                 
S.A. de  Mecanique v.  Polaroid Corp., 701  F.2d 1,  3 (1st  Cir.
                                     
1983) ("In preparing  briefs and arguments, an  appellee is enti-
tled to rely on the content of an appellant's [initial] brief for
the scope of the issues appealed . . . ."); see also Fed. R. App.
                                                    
P. 28(a), (c), we deem them waived. 

     8Also before us  is State  Farm's motion  to strike  various
portions of  VanHaaren's reply brief  and to impose  sanctions on
the  ground that the reply brief materially exceeded the scope of
the issues raised  in VanHaaren's opening  brief.  VanHaaren  did
raise  a bevy of new legal  arguments in his reply brief, thereby
frustrating  State Farm's  right  to prepare  an appropriate  re-
sponse.  See Pignons, 701 F.2d at 3;  Fed. R. App. P. 28(a), (c).
                    
For  example, VanHaaren  argued  for the  first  time that  State
Farm's IME requests were  ineffective because they were delivered
to his attorney.  We deliberately  bypass these belated arguments
in arriving at our decision, see Frazier v. Bailey, 957 F.2d 920,
                                                  
932 n.14 (1st Cir.  1992) (issues raised for first  time in reply
brief deemed waived), but decline to impose sanctions.  

                                15

                                16

VanHaaren v. State Farm, et al, No. 92-1667

HIGGINBOTHAM, Circuit Judge, dissenting.
                           

          The  majority has written  a very thoughtful, carefully

reasoned and meticulously cited opinion.  But  regretfully I must

dissent.

          Normally  I  would  agree with  the  court's conclusion

that:

          As no  reasonable trier  of fact  could find  that Van-
          Haaren acted in good faith  in refusing to comply  with
          State Farm's December 16  IME request, and [that]  Van-
          Haaren inexplicably  refrained from raising  the preju-
          dice issue  below, summary judgment for  State Farm was
          proper.

In this  case, however,  there is  no evidence in  the record  to

support the conclusion that VanHaaren failed to act in good faith

in refusing to  comply with State  Farm's repeated IME  requests.

All that the record thus far reveals is that VanHaaren's counsel,
                                                                

rather than VanHaaren himself, failed to act in good faith.

          In  Dunbar v. Triangle Lumber  and Supply Co., 816 F.2d
                                                       

126  (3d Cir. 1987), the Court of  Appeals for the Third Circuit,

considered  the appeal  of a  plaintiff whose complaint  had been

dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute

and comply  with an order of the court.  Plaintiff's counsel had 

failed to  enter an appearance  and had failed  to attend  a pre-

trail conference in blatant disregard of numerous orders from the

district  court.   The court  finally dismissed  plaintiff's com-

plaint  on the ground that plaintiff had failed to prosecute. The

Court of  Appeals reversed  the district  court and remanded  the

                                16

case for further proceedings.  The court reasoned that  dismissal

in  this context is a  "drastic tool" which  may appropriately be

invoked  after careful analysis of several factors:

          (1) the extent of the party's  personal responsibility;
                                                                
          (2) the prejudice to the  adversary caused by the fail-
                           
          ure to meet the scheduling  orders and respond to  dis-
          covery; (3) a history  of dilatoriness; (4) whether the
                               
          conduct  of the party or the attorney was willful or in
                                                           
          bad  faith;  (5) the  effectiveness of  sanctions other
                    
          than dismissal, which entails  an analysis of  alterna-
                                                                 
          tive sanctions;  and  (6) the  meritoriousness  of  the
                                                        
          claim or defense.

Dunbar, 816 F.2d at  128 (emphasis in original).   In plaintiff's
      

case,  the Third Circuit determined that there was no evidence in

the  record  that plaintiff  "bore  some  responsibility for  the

flagrant actions of her counsel."  Id. at 129.  Accordingly,  the
                                      

court  concluded that  the case  should be  remanded to  permit a

hearing  based on all the above factors after notice to plaintiff

and  her counsel. Id.   As an example to the district court about
                     

the  "alternative sanctions",  other  than  the dismissal,  which

might  be considered, the court of appeals assessed costs person-

ally against plaintiff's counsel. Id.
                                     

          Similarly  in  Velazquez-Rivera  v.  Sea-Land  Service,
                                                                 

Inc.,  920 F.2d 1072 (1st Cir. 1990), this circuit considered the
    

appeal of plaintiffs whose  case had been dismissed due  to coun-

sel's  failure to  attend pre-trial  conferences and  comply with

other orders of the  district court.  Before the  district court,

plain-tiffs'  counsel,  in an  extraordinary  act  of contrition,

"requested that sanctions be imposed against himself as attorney,

but that, the plaintiffs not being at fault, the dismissal of the

                                17

action  be set aside." Velazquez-Rivera,  920 F.2d at  1074.  The
                                       

district  court  denied  counsel's  requests  and  dismissed  the

action.   This court reversed the district court and remanded the

case  for further  proceedings. Id.  at 1079.   We  reasoned that
                                   

"dismissal should  be  employed only  if the  district court  has

determined that  it could not  fashion an `equally  effective but

less drastic  remedy.'"  Id. at  1076.  We also  reasoned that it
                            

was significant that  the failure to follow the  district court's

orders was  due to counsel's mistakes rather  to any bad faith on

the part of plaintiffs.  Id. 
                            

          Here, thus  far  the record  reveals  that  VanHaaren's

counsel, rather  than VanHaaren himself,  acted in  bad faith  in

refusing State Farm's repeated  IME requests.  It  seems to me  a

rather drastic and tragic remedy to dispose adversely of 

VanHaaren's claim because  of the  conduct of his  attorney.   Of

course, it  may very well be  that VanHaaren himself knew  of the

IME  requests, and himself refused to  comply with them.  If that

is the case, then summary  judgment in favor of State  Farm would

be appropriate.  But, at the very least, the district court ought

to hold a  hearing to determine whether  VanHaaren bears personal

responsibility for the actions of his counsel.  If VanHaaren does
                                                                 

not bear personal  responsibility, and if  failure to respond  to
   

the IME requests was due simply to dereliction on the part of his

counsel, then the court  ought to consider a less  drastic remedy

than  to dispose  adversely  of his  action.   One  such  remedy,

pursuant  to Velazquez and Dunbar  might be in  the form of sanc-
                                 

                                18

tions  imposed or  personal  costs  assessed against  VanHaaren's

counsel.

          For the foregoing  reasons I respectfully dissent  from

the judgment of the court.

                                19
