Over the past several years, the plaintiffs bar made an organized push to support various candidates running for seats on the Pennsylvania Supreme Court, with many of those candidates winning their elections. Now, over the past year or so, with the new make-up of the Pennsylvania Supreme Court containing several new members that are shoving the pendulum to the opposite direction, the plaintiffs bar has been pushing cases up the appellate ladder in a determined and organized effort to alter the course of Pennsylvania jurisprudence.

For example, in Cagey v. Pennsylvania Department of Transportation (PennDOT), 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances, thereby allowing the plaintiffs to bring more actions against PENNDOT in auto accident cases.

In another recent stunning reversal, the new Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an "operation" of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1), in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. Aug. 21, 2018 Mundy, J.).

Then, earlier this year, in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), the increasingly liberal, judicially activist Pennsylvania Supreme Court shook up the automobile accident litigation world by eradicating the household exclusion not only in the case before it, but across the board. This exclusion that had been routinely upheld for decades by various prior court decisions with some of those decisions even coming from the Supreme Court, was history.

Indeed, even Justice David Wecht, in his dissenting opinion issued in the Sayles case reviewed below, has framed the Supreme Court's recent jurisprudence, particularly in motor vehicle accident cases, as evidencing "freewheeling and unwarranted invocation of 'public policy'" to change and rewrite long-standing law.

The Liberal Judicial Activist Trend Continues

Now comes the recent Supreme Court decision in the combined matters of Sayles v. Allstate/Scott v. Travelers, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.). This case involved the practice of automobile insurance companies requesting insureds to attend first-party personal injury protection (PIP) medical exams as allowed by the terms of the insurance policy. The Supreme Court's decision in Sayles eradicates this practice in a manner that favors plaintiffs and allegedly injured parties.

The plaintiffs in Sayles argued that such policy terms that allowed carriers to repeatedly require its insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is titled "Mental or physical examination of a person." That law basically provides that, whenever a person's medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination "upon motion for good cause shown."

The plaintiffs bar attempted to paint a picture that the IME practice was being abused by the carriers by alleged repeated referrals of insureds for medical exams, by allegedly selecting doctors favorable to carriers, and in other ways.

The plaintiff's argument in Sayles was that the policy provisions in automobile insurance policies allowing a carrier to refer an insured to a medical exam to test the validity of the insured's need for ongoing treatment violated the wording of Section 1796 which required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam. The plaintiffs also emphasized that, even when good cause is shown for such an exam, it is the court and not the insurer who should select the doctor to complete the exam.  

It should come as no surprise that the current Supreme Court (except the dissenting Wecht) in Sayles accepted the plaintiff's argument and rejected the long-standing practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions. The Supreme Court ruled that insurers must, instead, file a petition with the court and demonstrate good cause. Also, the court ruled that it will now be a trial court judge who will select the medical examiner and not the carrier.

In footnote 11, the majority of the Supreme Court dismissively rejected the notion that its decision in Sayles would result in any great number motions being filed in this regard in the trial courts. The Supreme Court noted that Section 1796 has been on the books for years and has never generated much motions practice. What the court does not acknowledge in this footnote is that motions practice was never required in the context of PIP medical expense claims before as automobile insurance policies all contained the agreement between the carriers and their insureds that the carriers could refer the plaintiffs to exams without the necessity of the carrier filing a motion with the court.

Now that plaintiffs attorneys are armed with the Sayles decision, there is no doubt that they will, in many cases, balk at allowing their clients to be referred to medical examinations unless the carrier files a motion with the court. Forcing a motions practice will allow the plaintiffs to exert some control over the selection of the doctor and the parameters and conditions of the exam.  

It can therefore be anticipated that the practice of PIP carriers referring its insureds to medical exams to test the validity of the need for treatment will be changed from one in which the already overburdened trial courts did not have any such motions or litigation whatsoever to address in this regard to one where they will likely be flooded with many motions filed and dickered over by fighting attorneys and parties in petty fashion.

Even worse, the Supreme Court, in its haste to rewrite the law and change long-standing practice for the benefit of plaintiffs in Sayles, did not provide any guidance to the trial courts regarding how to select an appropriate doctor to complete the examination or what parameters or conditions should be imposed upon the examination.

In the end, the plaintiffs'bar convinced the Supreme Court to take what was a molehill of nonissue and to turn it into a mountain of anticipated litigation without any trail to follow up its steep terrain to nowhere but trouble.

Impetus for a Class Action Suit?

It appears that a main impetus behind the effort to get this issue before the Supreme Court and to secure the ruling that was secured was to open the door for a class action lawsuit by the plaintiffs against various carriers who have, in the past, referred their insureds to medical examinations as per the previous insurance policy provisions and without filing any motion with a court as had been the long-standing practice for decades. Within days, if not hours of the issuance of the Sayles decision, a push was being made by the plaintiffs bar to generate potential plaintiffs for such a class action.

However, in a rare instance of restraint, the Supreme Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day. As such, the Sayles decision opened the door for a potential class action lawsuit but did not pave the way (yet).

Taking Steps Backwards

The Pennsylvania Supreme Court's decision in Sayles appears to be of little moment with respect to PIP IMEs themselves as it was a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.  

The unfortunate detriment of the Sayles decision is that validly injured plaintiffs may now be delayed in continuing their treatment with the uncertainty of whether coverage for their medical expenses will continue given the need to now first proceed through motions practice to secure an eventual court order to determine whether a carrier's request for a medical exam is appropriate.  

Although the plaintiffs bar may have taken a step forward in its effort to generate a class action lawsuit in search of a lucrative recovery, injured plaintiffs themselves have been forced to take a step backwards in their pursuit of treatment for their injuries. Even worse, innocent Pennsylvanians everywhere face the prospect of increased automobile insurance premiums as a result given the new costs that will be attendant with the additional litigation that will now be required for the first time by the Sayles decision.  

Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters.