United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the following motions: (i)
Plaintiff's Motion to Strike Dr. Slaughter Affidavits
(Doc. 46-1 & 47-1) (ECF No. 56); (ii) Plaintiff's
Third Motion for Partial Summary Judgment (Count II-Breach of
Fiduciary Duty) (ECF No. 95); and (iii) Defendant's
Motion to Dismiss for Willful and Bad Faith Discovery
Violations and Authorities in Support (ECF No. 53). The
Court, having considered the motion, briefs, evidence,
arguments, and applicable law, will deny the motions.
Accident and Uninsured/Underinsured Policy
Williamson was involved in a car collision on April 27, 2012,
in which she was rear-ended. See Independent Medical
Evaluation (“IME”) Report 2, ECF No. 9-1; Aff. of
Horace Williamson ll. 9-11, ECF No. 9-1; Pl.'s Third Mot.
for Summ. J., UF ¶ 1, ECF No. 95. The at-fault
driver's insurance company was American National Property
and Casualty Company (“ANPAC”). See
Letter dated July 14, 2015, ECF No. 9-1 at 14 of 18;
Def.'s Resp. to Pl.'s Third Mot. for Summ. J. 1, ECF
No. 96. On May 1, 2012, Ms. Williamson had a recorded
telephone conversation with Mara Bell, Claims Adjuster for
ANPAC, in which she informed Ms. Bell she was experiencing
spasms in her right arm and shoulder, through her shoulder
and her neck. See May 1, 2012 Tr., ECF No. 53-1 at
1-2 of 33. When asked if she had ever before had any previous
injuries to the areas she mentioned, Ms. Williamson replied,
“Not on my shoulder and neck. On my leg, on the right
leg I had a knee surgery a year ago.” Id. at 3
time of the collision, Ms. Williamson was insured by
Metropolitan Property and Casualty Company
(“Metropolitan”), which provided
uninsured/underinsured motorist coverage. Compl. ¶ 7,
ECF No. 1-2; Answer ¶ 7, ECF No. 7. The policy with
Metropolitan provided $10, 000 in MedPay coverage and $250,
000 in underinsured motorist coverage (“UIM”).
Pl.'s First Mot. for Summ. J., Undisputed Fact
(“UF”) ¶ 3, ECF No. 9. The UIM component of
the Policy, however, did not provide coverage for bodily
injury “due to or resulting from an accident which
occurred before the effective date of this coverage.”
Endorsement NM400B ¶ H, ECF No. 102-2 at 2 of 2.
insurance policy with Metropolitan has a “Fraud and
Misrepresentation” provision that states:
All coverages under this policy are void if, whether before
or after a loss, you or any person seeking coverage has:
a. concealed or misrepresented any material fact or made any
fraudulent statements; or
b. in the case of any fraud or attempted fraud, affected any
matter regarding this policy or any loss for which coverage
Policy ¶ 3, ECF No. 102-2 at 1 of 2 (bold in original).
April 15, 2013, Mary Sadousky, a Claims Investigator with
Metropolitan, interviewed Ms. Williamson. See April
15, 2013 Tr., ECF No. 53-1 at 4-6 of 33. Ms. Williamson
reported she developed pain all in her back about five days
after the accident. April 15, 2013 Tr., ECF No. 102-4 at 1-2
of 6. Ms. Sadousky asked Ms. Williamson if she had ever been
injured at work, like slipping or falling, to which Ms.
Williamson responded that she fell on her back 20 years ago,
was treated by a doctor, but she got to a point where that
pain had been gone. See April 15, 2013 Tr., ECF No.
53-1 at 5 of 33. Ms. Sadousky asked Ms. Williamson if in the
last five years she had seen a chiropractor before, to which
Ms. Williamson replied, “Never.” Id. at
6 of 33. Ms. Sadousky then asked if Dr. Roche, her primary
doctor who treated her for diabetes, had ever treated her
because she was having problems with her back or neck.
See Id. Ms. Williamson responded, “Um, I, I
was, but not even treated, but I was, uh, one, I had a
sciatic pain sometimes…. And I don't know if he
ever treat for that, uh, maybe not. I get the massage, a
massage sometimes where it happen ‘cuz…”
Id. When asked if there was anything about the
accident, her injury, and her condition that she would like
Metropolitan to know, Ms. Williamson responded, “No,
no, you have been very thorough.” April 15, 2013 Tr.,
ECF No. 102-4 at 6 of 6.
Plaintiff's Underinsured Motorist Claim
made a claim with Metropolitan for medical payments coverage
(“MedPay”) after the accident. See Aff.
of Horace Williamson ll. 9-13, ECF No. 9-1; Answer ¶ 12,
ECF No. 7. On January 30, 2013, Metropolitan received signed
medical authorizations from Ms. Williamson. Pl.'s Ex. B,
ECF No. 106-2. As part of the claims process, Metropolitan
required Plaintiff to undergo an Independent Medical
Examination (“IME”). See Compl. ¶
12, ECF No. 1-2; Answer ¶ 12, ECF No. 7.
contends that Metropolitan required she undergo the IME as a
prerequisite to paying her MedPay benefits. See Aff.
of Horace Williamson ll. 12-13, ECF No. 12-1. Defendant
disputes this latter contention, arguing that the MedPay
benefits were temporarily delayed to allow it time to obtain
medical records and an IME to determine if the treatment was
related to the accident and reasonable and necessary.
See Def.'s Resp. to Pl.'s Second Mot. for
Summ. J. 4, ECF No. 26.
MedPay adjuster selected and hired the Medical Examiner, an
Orthopaedic Surgeon, Dr. Douglas Slaughter, to examine Ms.
Williamson. Pl.'s First Mot. for Summ. J., Undisputed
Fact (“UF”) ¶¶ 5-6, ECF No. 9. The
medical examination took place on October 18, 2013.
Id. UF ¶ 7; IME Report, ECF No. 9-1 at 4 of 18.
Ms. Williamson reported to Dr. Slaughter that the day after
the car collision she began experiencing neck and low back
pains and listed her medical care following the collision,
including with Dr. Roche, Mr. Kern, and Dr. Cheng.
See IME Report 2-3, ECF No. 9-1 at 5-6 of 18. She
complained to Dr. Slaughter of “neck pain, neck spasm,
and low back pain.” Id. at 3. During the IME,
Plaintiff informed Dr. Slaughter that prior to the April 2012
collision, she had no back and neck pain symptoms.
See IME Report 1-5, ECF No. 9-1; Dep. of Teresa
Williamson 103:5-17, ECF No. 53-1.
Slaughter reviewed x-rays she brought from the original
images obtained by her physician Dr. Roche. See IME
Report 2, 4, ECF No. 9-1. He also reviewed her medical
records, the first of which was dated May 9, 2012.
See IME Report 4-5, ECF No. 46-1. Dr. Slaughter
noted that he reviewed medical records from Plaintiff's
visit on April 30, 2013 with Dr. Emil Cheng at New Mexico
Orthopaedics for neck, mid back, and low back pain. See
Id. at 5; Def.'s Resp., Ex. 1, ECF No. 18-1 at 1 of
7. Dr. Cheng stated in his report that Plaintiff
“reports having a history of right sciatica, ”
she was involved in a motor vehicle accident in April 2012,
she noticed pain in May 2012, and she “is not sure if
her symptoms are related to the motor vehicle
accident.” Def.'s Resp., Ex. 1, ECF No. 18-1 at 1
her examination, Dr. Slaughter reported, as relevant here,
the following in response to Metropolitan's questions:
a soft tissue injury. In the past, it has been shown that
cervical whiplash injuries can last up to two years with a
minority lasting longer than that as far as symptoms are
concerned. The claimant obviously by MRI does have some
degeneration of the cervical and lumbar spine. This will be
an ongoing issue as far as treatment and symptoms. In her
physical therapy and chiropractic notes, she had what is
typical for degenerative conditions which is waxing and
waning of symptoms without any significant long term
The claimant has undergone a significant amount of
chiropractic care and has ceased this on her own. She has
also undergone massage therapy, as well as physical therapy.
She can definitely have her own exercise program and does not
need further physical therapy. Chiropractic treatment also
does not need to be explored further. However, if the
claimant has done relatively well from her single set of
facet blocks, radiofrequency ablation may be beneficial to
alleviate her pain for much longer periods of time. She
has not undergone any cervical injections to see if this
helps to alleviate her symptoms. She may be a good
candidate for cervical facet blocks and radiofrequency
ablation on a periodic basis as well.
As stated above, the claimant has disc degeneration and facet
arthropathy. The diagnosis related to the motor vehicle
collision, including whiplash associated disorder at the
cervical spine. In addition, the claimant does have or has an
exacerbation of her degeneration in the lumbar spine. It
is felt that this claimant could undergo further lumbar facet
blocks and potential radiofrequency ablation to assist in the
pain relief from her degeneration which reportedly she was
asymptomatic from prior to the motor vehicle collision.
This could also be a reasonable treatment in the cervical
spine. However, Dr. Cheng has not been able to ascertain
whether epidural injections or facet blacks are going to be
most beneficial for her cervical pain. As far as the cervical
pain is concerned, I would suggest that she have the
appropriate injection approximately two to three times per
year as needed for pain relief…. The
injections in the lumbar spine would also be approximately
two to three times per year based on symptom
Regarding causation, the claimant definitely had a
pre-existing degenerative condition in both the cervical and
lumbar spine. It is felt by this examiner that she has
had an exacerbation or a permanent aggravation of her
cervical degeneration and lumbar degeneration. No
further injury has obviously been sustained in the motor
vehicle collision. The injuries, unfortunately, can be
DIAGNOSES RELATED TO THE MOTOR VEHICLE
1. Cervical spondylosis without myelopathy or facet joint
2. Cervical disc degeneration/aggravation/exacerbation.
3. Lumbar disc degeneration, aggravation/exacerbation.
4. Lumbar facet arthropathy/lumbar spondylosis without
IME Report 7-9, ECF No. 9-1 (italics emphasis added).
point during the insurance claims process, Plaintiff sent
Metropolitan a copy of Dr. Cheng's April 30, 2013 medical
record. Aff. of Teresa Williamson, ECF No. 60-4. Metropolitan
subsequently paid Plaintiff $10, 000 for medical payments
pursuant to the MedPay benefits in the Policy. See
Aff. of Horace Williamson ll. 17-19, ECF No. 9-1 at 1 of 18;
Def.'s Resp. ¶ 14, ECF No. 18. On March 13, 2015,
Plaintiff settled for $43, 000 her third-party claim against