                      [J-49A-2019 and J-49B-2019] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


 SAMANTHA SAYLES, INDIVIDUALLY                 :   No. 58 MAP 2018
 AND ON BEHALF OF ALL OTHERS                   :
 SIMILARLY SITUATED,                           :   Certification of Question of Law from
                                               :   the United States Court of Appeals for
                      Appellee                 :   the Third Circuit at No. 17-3463.
                                               :
                                               :   ARGUED: May 15, 2019
               v.                              :
                                               :
                                               :
 ALLSTATE INSURANCE COMPANY,                   :
                                               :
                      Appellant                :

 WILLIAM H. SCOTT,                             :   No. 59 MAP 2018
                                               :
                      Appellee                 :   Certification of Question of Law from
                                               :   the United States Court of Appeals for
                                               :   the Third Circuit at No. 17-3769.
               v.                              :
                                               :   ARGUED: May 15, 2019
                                               :
 TRAVELERS COMMERCIAL                          :
 INSURANCE COMPANY,                            :
                                               :
                      Appellant                :


                                  DISSENTING OPINION

JUSTICE WECHT                                           DECIDED: November 20, 2019
       Section 1796 of the Motor Vehicle Financial Responsibility Law (“MVFRL”)

provides that, when the mental or physical condition of a claimant is at issue, “a court of

competent jurisdiction . . . may order the person to submit to a mental or physical

examination by a physician” upon a showing of good cause. 75 Pa.C.S. § 1796. Today’s

learned Majority fortifies and improves upon this statutory language, extending its reach
beyond lawsuits and into each and every insurance contract, regardless of whether any

lawsuit was ever brought or even contemplated. Today’s holding invokes Section 1796

to prohibit insurers from including in their policies contractual provisions requiring

insureds to submit to a medical examination, and instead forces insurers first to obtain a

court order upon a showing of good cause. This might strike many as a reasonable

approach indeed. But it is not an approach that we may adopt and impose by judicial fiat.

If the General Assembly wishes to amend the statute to codify the Majority’s approach, it

is free to do so. We are not empowered to rewrite the MVFRL in the meantime. As the

law stands now (on the books, if not on the Majority’s interpretation), nothing in the text

of the MVFRL mandates that insurers invoke the judicial process in order to arrange for

a medical examination of the insured that is authorized through prior contractual

agreement. Thus, I find myself compelled to dissent.

       As an initial matter, and as I have explained in previous opinions, I disagree

respectfully with this Court’s freewheeling and unwarranted invocation of “public policy”

in cases arising under the MVFRL.1 See, e.g., Maj. Op. at 20, 21, 27. The only question

here is whether the insurance policy provisions at issue conflict with the MVFRL and are

thus not enforceable. Framing that question euphemistically or vaguely as something

rooted in “public policy,” rather than statutory interpretation, has created the

misperception that jurists possess some inherent lordly authority to displace written

agreements based upon our own idiosyncratic conceptions of what strikes us as desirable

or undesirable “public policy.” The resort to this “public policy” device throughout our

MVFRL jurisprudence has confused more than it has clarified. More important, it risks an

1     See, e.g., Safe Auto Ins. Co. v. Oriental-Guillermo, 214 A.3d 1257, 1271 (Pa.
2019) (Wecht, J., concurring) (“Courts cannot invalidate contractual provisions based
upon vague and nebulous public policy concerns[.]”); Gallagher v. GEICO Indem. Co.,
201 A.3d 131, 142 n.5 (Pa. 2019) (Wecht, J., dissenting) (“[T]oday’s decision is premised
more upon a policy judgment than upon a discernible legal principle.”).


                    [J-49A-2019 and J-49B-2019] [MO: Todd, J.] - 2
appearance of jurisprudence that is arbitrary, unprincipled, and ultimately illegitimate. It

should be abandoned.

        Turning to the merits of the issue before us, Section 1796 of the MVFRL provides

that:
        (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. § 1796.

        The Majority concludes that, in enacting this Section, the General Assembly

intended to forbid insurers from including independent medical examination (“IME”)

clauses in automobile insurance policies.2 There are many reasons to doubt the validity

of this conclusion. For one thing, although Section 1796 says that a claimant must attend

a court-ordered IME—and requires that “good cause” be shown before such an order will

issue—it does not say that insurers must use the procedure outlined in Section 1796 in

order to procure an insured’s participation in an IME. Contra Maj. Op. at 23 (declaring

without explanation that “insurers are required to follow Section 1796(a) when seeking to

compel an insured to submit to an IME” unless the insured consents).




2      The IME clause in Travelers’ insurance policy requires that its insureds “[s]ubmit,
as often as [Travelers] reasonably require[s] to physical exams by physicians.” Travelers
Automobile Insurance Policy at 16. Similarly, Allstate’s policy contains a clause which
provides that its insureds “shall submit to mental and physical examinations by physicians
selected by us when and as often as we may reasonably require.” Allstate Automobile
Insurance Policy at 12 (emphasis omitted).


                     [J-49A-2019 and J-49B-2019] [MO: Todd, J.] - 3
       In interpreting Section 1796 to require that all IMEs be judicially-ordered, the

Majority reveals and encourages a courtroom-centric worldview that is inconsistent with

the reality of the insurance claims process. Given that many insurance claims do not

result in litigation, it is difficult to imagine that the General Assembly needlessly would

force parties who are not suing each other to initiate expensive, stressful, and

unpredictable adversarial court proceedings. It is of course theoretically possible that the

General Assembly would enact such a litigation-compelling provision. But if the General

Assembly intends to force people to bring lawsuits, one would expect that the lawmakers

would say so explicitly. They would not draft a provision like Section 1796, which never

uses the word “insurer” and which focuses instead on the conduct of courts and claimants.

       Other sections of the MVFRL demonstrate that the General Assembly is more than

capable of drafting unambiguous statutory language forbidding insurers from including

(and courts from enforcing) certain contractual terms in automobile insurance policies.

See, e.g., 75 Pa.C.S. § 1724(b) (“Provisions of an insurance policy which exclude

insurance benefits if the insured causes a vehicular accident while under the influence of

drugs or intoxicating beverages at the time of the accident are void.”); 75 Pa.C.S. § 1711

(providing for required minimum coverage that must be included in all liability insurance

policies issued within the Commonwealth); 75 Pa.C.S. § 1731(a) (providing that “[n]o

motor vehicle liability insurance policy shall be delivered or issued for delivery in this

Commonwealth” unless specified conditions are met). If the General Assembly had

intended—either in Section 1796 or elsewhere—to require a judicial finding of good cause

as a barrier before each and every IME regardless of contractual language, it could (and

presumably would) have said so explicitly. To accept the Majority’s interpretation of

Section 1796, one would have to assume that, despite very clearly outlawing some policy

provisions in other sections of the MVFRL, the General Assembly intended to accomplish




                     [J-49A-2019 and J-49B-2019] [MO: Todd, J.] - 4
the same in Section 1796 but was for some reason intentionally obtuse and cryptic (or

perhaps just extraordinarily sloppy) in this one particular instance.

       Put simply, the most natural and unforced reading of Section 1796 suggests that

the General Assembly intended to give insurers a default mechanism to force claimants

to undergo a physical examination.       The statutory provision does not impose upon

insurers an obligation to use court process to compel a medical examination of insureds;

it merely grants “court[s] of competent jurisdiction” the authority to compel an examination

should the need arise. 75 Pa.C.S. § 1796(a). Nothing in that Section, and nothing

anywhere else in the MVFRL for that matter, suggests that a judicial order under Section

1796 is the only way an insurer can obtain an IME. The Majority (apparently without

recognizing the irony) emphasizes that an insured voluntarily may agree to submit to an

IME even absent a judicial order issued under Section 1796. See Maj. Op. at 22, 23.

But, if insureds can agree to undergo an IME without a judicial order finding “good cause,”

why can’t they also agree—in their insurance contract—that they will undergo an IME

whenever their insurer requests one?

       There is no answer.

       The Majority offers merely that such a system would lead to an “absurd” result,

since different insureds would be subject to different rules depending upon the language

of their insurance policies. Id. at 24 (explaining that “some insureds who have such

clauses in their policies would be subject to IMEs at the unilateral direction of the insurer,

whereas others whose policies do not have these clauses would be entitled to the

protections of Section 1796(a)”).     There is nothing “absurd” about that.        Insurance

contracts, while highly regulated, are still contracts. They remain arrangements between




                     [J-49A-2019 and J-49B-2019] [MO: Todd, J.] - 5
private parties.3 Unless the General Assembly has, by statute, explicitly restricted the

right of the parties to contract, insurers and insureds can agree to whatever terms both

are willing to accept. The MVFRL did not purport to create a one-size-fits-all insurance

policy for every driver in the Commonwealth, which probably explains why the Insurance

Department has for decades approved of insurance policies that include IME clauses like

those at issue here.

       Today’s novel interpretation of the MVFRL is yet another sign that this Court has

assumed a quasi-legislative or even legislature-supervising role in the automobile

insurance arena.4       The Majority declares that the IME clauses before us are

unenforceable not because the text of the MVFRL itself forbids them, but rather because

the Majority today chooses to deem those clauses ill-advised and therefore “absurd.”

That is not a judgment call that this Court is authorized, or even well-equipped, to make.

       I respectfully dissent.




3       I certainly recognize the obvious reality that drivers are not on equal footing with
insurance companies when shopping for coverage. For one thing, purchasers of motor
vehicle insurance are presented with a take-it-or-leave-it decision, and I have no doubt
that many purchasers either do not fully read their policies or do not fully understand the
policy terms. But our precedents make clear that “an insured’s failure to read carefully
the clear and unambiguous terms of his insurance policy” will not suffice to invalidate
those terms. Erie Ins. Exch. v. Baker, 972 A.2d 507, 511 (Pa. 2008) (OAJC) (citing
Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983)
(explaining that one’s failure to read an insurance contract cannot justify avoidance of its
terms)). Concerns over consumer confusion, bargain imbalances, and disparities in
market power should be directed to the Insurance Commissioner—the executive branch
official tasked with regulating insurance within our Commonwealth—or to the General
Assembly. It is not this Court’s role to regulate the insurance industry. Perish the thought.
4        Compare Gallagher, 201 A.3d at 131 (overruling precedent and holding, for the
first time, that household vehicle exclusions are unenforceable in Pennsylvania), with id.
at 139 (Wecht, J., dissenting) (explaining that “nothing in the text of the MVFRL prohibits
household vehicle exclusions”).


                       [J-49A-2019 and J-49B-2019] [MO: Todd, J.] - 6
