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Young v. The Standard Fire Insurance Co.

United States District Court, E.D. Washington

September 30, 2019

DIANE YOUNG, individually Plaintiff,
v.
THE STANDARD FIRE INSURANCE COMPANY, a foreign insurance company, Defendant.

          ORDER DENYING CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT, GRANTING DEFENDANT’S MOTION TO DISMISS CLASS ALLEGATIONS, AND DENYING AS MOOT PLAINTIFF’S MOTION FOR PRE-CERTIFICATION DISCOVERY

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are cross-Motions for Partial Summary Judgment from Plaintiff Diane Young, ECF No. 90, and Defendant The Standard Fire Insurance Company (“Standard”), ECF No. 86. Also before the Court are Standard’s Motion to Dismiss or Strike Class Action Allegations, ECF No. 54, and Young’s Motion to Compel Class Certification Discovery, ECF No. 66.[1] Having reviewed all materials submitted by the parties, including the supplementary filing on August 14, 2019, having heard oral argument from the parties on August 8, 2019, and having researched the relevant law, the Court is fully informed.

         BACKGROUND

         Young’s claims arise out of her central contention that Standard, as a subsidiary of Travelers Insurance, wrongfully denied personal injury protection (“PIP”) for injuries that Young allegedly sustained in a car accident in May 2017. Young alleges that Standard should not have suspended payment pending investigation of Young’s claims and completion of an independent medical examination (“IME”), when her treating physicians already had determined that the treatment she was receiving was reasonable, necessary, and related to the accident in which she was injured.

         Several years before the incident upon which this lawsuit is based, Young was injured in an accident on September 12, 2013. While driving in a wilderness area of Canada, Young lost control of her vehicle, which rolled seven times, and fractured her neck and back. ECF No. 91 at 58. Young recovered from her injuries with treatment that included a halo neck brace, massage, acupuncture, physical therapy, chiropractic services, and the care of a physiatrist. See ECF No. 97-1 at 153.

         The parties dispute whether Young continued to have pain or other symptoms from her 2013 injuries into 2017. Young maintains that by January 11, 2017, she reported to her new primary care provider, Nurse Practitioner Mary Bachko, that she was experiencing nothing more than tension in her upper-mid back as a residual symptom from her 2013 injuries. ECF No. 98 at 4. Standard emphasizes that the records from the January 11 appointment with Nurse Practitioner Bachko indicate that “chronic back pain” was a problem for Young at the time of her new patient appointment. See ECF No. 89 at 5. However, the deposition testimony of Nurse Practitioner Bachko clarifies that Young did not tell her that she had chronic back pain; rather, Young only informed Bachko that she had “upper mid-back tenseness on occasion.” ECF No. 97-1 at 153.

         On May 11, 2017, Young was involved in an accident in which she was rear-ended at low speed by a pickup truck. ECF Nos. 91 at 54; 97-1 at 63. On May 17, 2017, Young reported the collision to Standard and conveyed that she was experiencing pain in her neck, back, low back, shoulders, sternum, and a toe on her left foot. ECF No. 91 at 55-56. Young told Standard that she had fully recovered from her 2013 accident by May 11, 2017, and that she “had no pain” from her prior accident at the time that she was rear-ended. Id. at 58. Young characterized her level of pain due to the May 2017 accident, at the time of the May 17 phone call, as a “7 or 8” on a 10-point scale. Id. at 57.

         At the time of Young’s May 2017 accident, her automobile insurance policy with Standard covered personal injury protection (“PIP”) subject to a $35, 000.00 limit for medical and hospital expenses. ECF No. 91 at 45-46. The policy provided for benefits to the insured for “bodily injury, ” which, by definition, was “caused” by the accident and arose out of “the ownership, maintenance or use of a ‘motor vehicle’ as a ‘motor vehicle.’” ECF No. 91 at 50, 85. The benefits included “[a]ll reasonable and necessary expenses incurred within three years from the date of the accident for . . . [m]edical . . . services.” Id. at 50.

         Following the accident, Young incurred $1000 in urgent care expenses and began treatment with chiropractor Jamie Gore, D.C., on May 17, 2017. ECF Nos. 97-1 at 42; 88-12 at 8. The claims adjuster initially earmarked PIP medical benefits reserves for the urgent care treatment and up to two chiropractic treatment sessions per week for up to twelve weeks. ECF No. 97-1 at 68. On June 8, 2017, the claims adjuster noted that Young reported ongoing neck pain that she was treating with acupuncture and massage, in addition to continued chiropractic treatment. Id. at 67. On July 14, 2017, the claims adjuster added up to two acupuncture treatment sessions per week for up to eight weeks to the benefits reserve and made a note that the chiropractic treatment records indicated that “all areas are complicated by prior injury.” Id. at 66-67. Nonetheless, during July and August 2017, Standard continued to increase the reserve amount based on information it received from Young and her treatment providers regarding her treatment plan and symptoms. See ECF No. 97-1 at 63-67.

         However, on September 8, 2017, Standard’s claims adjuster informed Young that the insurer was suspending its payment of PIP benefits as of September 18, 2017, and requesting that Young submit to an independent medical examination (“IME”). ECF No. 97-1 at 63. The letter that Standard sent to Young dated September 8, 2017, informed Young that Standard was requesting to schedule an IME “to determine if the treatment [Young was] receiving is reasonable, necessary, and related to [the accident on May 11, 2017].” ECF No. 88-9 at 2. The letter further stated:

A medical authorization form is being sent to you at this time with a provider list form. Upon receipt of the completed unrestricted and signed medical authorization and the provider form, [Standard] will request your current and prior medical records. Upon receipt of the records, an [IME] will be scheduled.
Please be advised until we have an opportunity to determine if your treatment is reasonable, necessary and related to the accident referenced above, [Standard] will handle your [PIP] claim under a reservation of rights.

Id.

         The parties dispute the reasons that the IME was not scheduled in fall 2017, with Young asserting that Standard could have scheduled the IME before receiving her prior medical records and Standard attributing the delay to Young’s initially limited medical release and scheduling conflicts involving both Young and the examining practitioners. ECF Nos. 97 at 5; 105 at 15. However, it suffices for purposes of the present motions to acknowledge that the IME did not occur between September 2017 and the end of that year.

         Young filed a Complaint in Spokane County Superior Court on January 9, 2018, contesting the alleged denial of benefits. ECF No. 1. Young alleged individual claims that Standard violated the Washington Consumer Protection Act by violating certain provisions of the Washington Administrative Code and violated the Insurance Fair Conduct Act by allegedly unreasonably denying coverage to her. ECF No. 1-2. Young further alleged claims of breach of contract, negligence, and negligent and intentional infliction of emotional distress. Id.

         Young underwent an IME on approximately January 21, 2018, with James Snyder, D.C.. ECF No. 88-11. In addition, an acupuncturist, Melissa Minoff, N.D., and a physiatrist, Lee Robertson, D.O. completed a records review on approximately February 1, 2018. ECF No. 88-12. Dr. Snyder opined that chiropractic treatment was no longer reasonable, necessary, or related to the May 11 accident after August 17, 2017. ECF No. 88-11 at 26. Dr. Minoff concluded that acupuncture treatment for Young’s treatment related to her May 11 accident was reasonable up until December 4, 2017. ECF No. 88-12 at 23. Dr. Robertson found that “any treatment including physical therapy and trigger point ...


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