United States District Court, E.D. Washington
ORDER DENYING CROSS-MOTIONS FOR PARTIAL SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION TO DISMISS CLASS
ALLEGATIONS, AND DENYING AS MOOT PLAINTIFF’S MOTION FOR
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE.
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. 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
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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