                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-1414
                                   ________________

                                 ALLEN L. FEINGOLD;
                                  PHILLIP GODDARD

                                             v.

                       STATE FARM MUTUAL AUTOMOBILE
                             INSURANCE COMPANY

                                    Phillip Goddard,
                                                   Appellant
                                   ________________

                            On Appeal from the District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 2-11-cv-06309)
                    District Judge: Honorable Thomas N. O’Neill, Jr.
                                    ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 2, 2015

                 Before: AMBRO, SCIRICA, and ROTH, Circuit Judges

                                 (Filed: October 27, 2015)

                                   ________________

                                       OPINION*
                                   ________________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

      Phillip Goddard appeals the grant of summary judgment in favor of State Farm

Mutual Automobile Insurance Company on his breach of contract and bad faith claims.1

We will affirm.2

                                            I.

      In August 1998, a vehicle driven by Michael Gant struck Goddard’s vehicle in the

rear in heavy traffic. A77. Before Goddard’s vehicle could be moved, a vehicle driven by

Michael Bogan also struck Goddard’s vehicle in the rear. A75-77. Bogan maintained

$25,000 in liability coverage at the time of the accident, A28, but it is unknown whether

Gant was insured.

      Later that year, Goddard filed a personal injury protection (“PIP”) claim with State

Farm. From December 1998 to February 1999, State Farm made multiple attempts to

schedule an independent medical examination of Goddard. A108-24. Although

Goddard’s policy required him to cooperate with State Farm by submitting to reasonable

requests for medical examination, A84, 101, Goddard did not attend multiple scheduled

appointments, A109, 113-14, and failed to provide State Farm with convenient dates or


1
 Feingold, Goddard’s former counsel and a disbarred attorney, sought to litigate this
matter as a purportedly pro se party alongside Goddard. Feingold claimed that he had
been assigned a portion of Goddard’s claims in this matter. The District Court dismissed
Feingold’s claims for lack of standing and we affirmed. Feingold v. State Farm Mut.
Auto. Ins. Co., 517 F. App’x 87 (3d Cir. 2013). Accordingly, Feingold is no longer a
party to this matter.
2
 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291.

                                            2
schedule an appointment at his own convenience, A120-24. Unable to conduct an

independent medical examination of Goddard, State Farm obtained peer reviews of

Goddard’s medical reports that determined that Goddard had reached maximum medical

improvement and that further treatment was not medically necessary, A125, 134-35. In

contrast, Goddard produced a doctor’s report from August 2000 that discussed additional

treatment options, including cortisone injections and vertebral axial decompression

therapy. A136-37.

       In March 2001, two years after State Farm’s last request for an independent

medical examination, Goddard filed a petition to appoint arbitrators for uninsured

motorist/underinsured motorist claims (“UM/UIM”). A19. The petition was denied. A39.

Three years later, in July 2004, Goddard filed another petition to appoint arbitrators and

the parties agreed to select arbitrators in Delaware. A43. From September 2005 to April

2006, State Farm again made multiple attempts to schedule an independent medical

examination; repeatedly warned Goddard that failure to do so would compromise his

ability to recover; and refused to proceed to arbitration until the medical examination

occurred. A47-51, 138. Specifically, on April 11, 2006, State Farm informed Goddard

that it was closing his file because his failure to submit to an independent medical

examination indicated that he “did not intend to pursue a claim.” A138. Ten months later,

in February 2007, Goddard finally responded by telling State Farm, “You may consider

anything you want . . . but what you do, does not matter in the least.” A52.

       For the next three and a half years, Goddard made no further contact and did not

schedule an independent medical examination. Then, in December 2010, following the

                                             3
suspension of Goddard’s former counsel’s law license, Goddard’s new counsel requested

that State Farm proceed to arbitration. A61-62. State Farm responded that it had closed

the file and that the claim was time-barred. A53.

       In October 2011, thirteen years after the accident, more than twelve years after

State Farm’s first request for an independent medical examination for the PIP claim, and

more than six years after the first request for the UM/UIM claim, Goddard filed the

instant lawsuit against State Farm for breach of contract and bad faith. A58-66. Finding

that Goddard’s failure to submit to an independent medical examination constituted a

material breach of the agreement that had prejudiced State Farm, the District Court

granted State Farm’s motion for summary judgment. Goddard v. State Farm Mut. Auto

Ins. Co., 992 F. Supp. 2d 473 (E.D. Pa. 2014).

                                            II.

                                            A.3

       State Farm has not waived its noncooperation defense.4 Although Federal Rule of

Civil Procedure 8(c) calls for affirmative defenses to be raised in the answer, we have

recognized that “affirmative defenses can be raised by motion, at any time (even after


3
 We review the District Court’s “decision regarding the waiver of an affirmative defense
for abuse of discretion.” Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012).
4
  We also find that State Farm is not equitably estopped from asserting its noncooperation
defense. Goddard has failed to show that he reasonably relied on a misrepresentation by
State Farm to his detriment. See Blofsen v. Cutaiar, 333 A.2d 841, 844 (Pa. 1975).
Goddard does not claim that he structured his litigation strategy upon the belief that State
Farm had abandoned the defense, nor does he describe any actions he otherwise would
have taken. In addition, State Farm raised the defense in its motion for summary
judgment less than one year after the filing of Goddard’s amended complaint.

                                             4
trial), if plaintiff[] suffer[s] no prejudice.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494,

506 (3d Cir. 2006). Here, we agree with the District Court that Goddard could not have

been surprised by State Farm’s assertion of his noncooperation as a defense. In its first

attempt to schedule an independent medical examination, State Farm informed Goddard

of his duty to cooperate and warned that his “failure to appear for [an independent

medical] examination may result in a denial of benefits.” A108. This warning was

repeated multiple times. In fact, an examination of all correspondence shows that

throughout the parties’ dealings Goddard’s failure to submit to an independent medical

examination was a continuing obstacle to State Farm’s willingness to proceed. In

addition, there is no action Goddard could have taken between State Farm’s filing of its

answer and its motion for summary judgment that could have undone his noncooperation.

Accordingly, State Farm’s actions did not prejudice Goddard and the court did not abuse

its discretion by determining that State Farm’s affirmative defense was not waived.

                                              B.5

       Summary judgment was properly granted on Goddard’s breach of contract claim.

An insurer may be relieved of its obligations under an insurance policy by showing the

insured has substantially prejudiced it through a material breach of contract. See, e.g.,

Conroy v. Commercial Cas. Ins. Co., 140 A. 905, 907 (Pa. 1928). Here, we agree with the



5
  We exercise plenary review over the District Court’s grant of summary judgment.
Pacitti v. Macy’s, 193 F.3d 766, 772 (3d Cir. 1999). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Neither
party disputes that Pennsylvania law governs this diversity action.

                                               5
District Court that there has been a material breach and substantial prejudice as a matter

of law. See Cameron v. Berger, 7 A.2d 293, 296 (Pa. 1938) (material breach as a matter

of law); Metal Bank of Am., Inc. v. Ins. Co. of N. Am., 520 A.2d 493, 498 (Pa. Super. Ct.

1987) (prejudice as a matter of law). The cooperation clause of the policy clearly

established Goddard’s duty to submit to reasonable requests for medical examination, and

correspondence between Goddard and State Farm show Goddard failed to fulfill this duty

despite multiple requests by State Farm over a number of years. In addition, Goddard’s

substantial breach prejudiced State Farm by denying it the opportunity to evaluate his

health at a time that was close enough to the accident to permit a determination of

whether Goddard’s injuries were caused by the first accident, the second accident, or

existed prior to both. This information was vital to State Farm’s ability to determine

whether it could seek contribution given that one driver was known to be insured.

       Summary judgment was also properly granted on Goddard’s bad faith claim.

“[A]n insurer may defeat a claim of bad faith by showing that it had a reasonable basis

for its actions.” Amica Mut. Ins. Co. v. Fogel, 656 F.3d 167, 179 (3d Cir. 2011); see also

Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1994).

State Farm had a reasonable basis for requesting an independent medical examination,

refusing to proceed to arbitration without an examination, and denying Goddard’s claim.

In addition to the need for a medical examination to determine the cause of Goddard’s

injuries, an independent medical examination was reasonably necessary to determine

whether Goddard had reached maximum medical improvement. State Farm’s peer

reviewers believed Goddard achieved maximum medical improvement by February 1999,

                                             6
A125-35, while Goddard produced a doctor’s report from August 2000 that discussed

additional treatment options. A136. Accordingly, State Farm had a reasonable basis for

its actions because an independent medical examination was needed to determine

causation and clarify inconsistencies in prognosis. See Johnson v. Progressive Ins. Co.,

987 A.2d 781, 784 (Pa. Super. Ct. 2009) (“[R]equest for a physical examination . . . was

reasonable because . . . report was contradicted by notations in medical records indicating

that the surgery was successful and Appellant was improving.”).

                                           III.

       For the foregoing reasons, and for those provided in the District Court’s thorough

and well-reasoned opinion, we will affirm the court’s grant of summary judgment in

favor of State Farm.




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