
USCA1 Opinion

	




          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 & 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                                          I                                      BACKGROUND                                      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                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Applicable State Law          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  & Pollution Control                              ___  ____ ___________________________________          Co.  v.  Browning-Ferris, Inc.,  949  F.2d 1384,  1386  (5th Cir.          ___      _____________________          1991);  S & R Metals,  Inc. v. C.  Itoh & 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 & 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 &  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 &          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          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 & 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  & 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. &                                                   ___ ___    _____________          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                                         III                                      CONCLUSION                                      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.                    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          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
