                     [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                 :


                                 CONCURRING OPINION


JUSTICE BAER                                            DECIDED: November 20, 2019
      I join the well-reasoned Majority Opinion in full. I write separately to emphasize

that, in my view, the circumstances of this case evince what may be an unsettling trend

among automobile insurance companies to attempt to circumvent clear statutory

language through contrary policy provisions.
         Here, the plain language of Subsection 1796(a) of the Motor Vehicle Financial

Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1796(a), demonstrates that in passing this

statutory provision, the Legislature intended “to set the irreducible requirements all

insurers issuing policies of automobile insurance in this Commonwealth must meet in

order to compel their insured to submit to an [independent medical examination (“IME”)]

when the insured does not voluntarily comply with the insurer’s request to do so.”1

Majority Opinion at 22. The IME insurance policy provisions at issue in this case clearly

allow insurers to circumvent these statutory mandates.           Thus, as concluded by the

Majority, the IME provisions violate public policy and consequently are void.

         We have seen this practice before.           Indeed, we recently concluded that an

insurance policy’s “household vehicle exclusion” conflicted with the clear mandates of

Section 1738 of the MVFRL, 75 Pa.C.S. § 1738.                Gallagher v. GEICO Indemnity

Company, 201 A.3d 131 (Pa. 2019). In Gallagher, we noted that the MVFRL made it

clear that to effectuate a waiver of uninsured or underinsured motorist coverage, an

insurer must obtain the insured’s signature on a statutorily-prescribed waiver form in order




1   Subsection 1796(a) states, in full, as follows:

         (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.
to confer the insured’s knowledge of her rights to obtain coverage and her rejection of

that coverage.

       Gallagher, who was the insured, did not sign a staking waiver form. Nevertheless,

GEICO, Gallagher’s insurance company, attempted to deny stacking coverage based

upon a “household vehicle exclusion” “buried in an amendment” to the insured’s policy.

Id. at 138. As in this case, we found that the insurance company’s practice of including

policy provisions that conflict with the clear language of the MVFRL renders those

provisions invalid and unenforceable. Id.

       Likewise, in Generette v. Donegal Mutual Insurance Company, 957 A.2d 1180 (Pa.

2008), we found that an “Other insurance” clause included in an automobile insurance

policy violated public policy as expressed in the MVFRL, requiring excess rather than gap

underinsured motorist coverage. Generette emphasized that “the language triggering

gap insurance is only in the policy, which cannot conflict with the MVFRL.” Id. at 1191.

Accordingly, we found the “Other insurance” language of the policy to violate the express

public policy of the MVFRL.

       I write now to highlight that, given these multiple cases in which we have

encountered insurance companies including policy provisions inconsistent with the

Legislature’s intent as set forth in the MVFRL, courts of this Commonwealth should be

cognizant of this practice. Additionally, I respectfully suggest that the insurance industry

should be more circumspect when it is tempted to “adjust” provisions of the MVFRL to its

benefit notwithstanding contrary statutory provisions.
