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
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
IME clause, barring recovery under the uninsured motorist provi-
sion in the State Farm policy.
II
DISCUSSION
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
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
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
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.
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
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.
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).
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).
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).
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-
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
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.
obligation to cover VanHaaren's claim for the alleged occurrence
was excused upon VanHaaren's unequivocal repudiation.7
III
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.
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.
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
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
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-
tions imposed or personal costs assessed against VanHaaren's
counsel.
For the foregoing reasons I respectfully dissent from
the judgment of the court.