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Williamson v. Metropolitan Property and Casualty Insurance Co.

United States District Court, D. New Mexico

March 30, 2017



         This 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.


         A. Car Accident and Uninsured/Underinsured Policy

         Ms. 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 of 33.

         At the 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.

         Plaintiff's 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 is sought.

Policy ¶ 3, ECF No. 102-2 at 1 of 2 (bold in original).

         On 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.

         B. Plaintiff's Underinsured Motorist Claim

         Plaintiff 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.

         Plaintiff 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.

         Metropolitan's 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.

         Dr. 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 of 7.

         After her examination, Dr. Slaughter reported, as relevant here, the following in response to Metropolitan's questions:

         This is 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 improvement.

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 reduction.
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 persistent.
1. Cervical spondylosis without myelopathy or facet joint degeneration, exacerbation/aggravation.
2. Cervical disc degeneration/aggravation/exacerbation.
3. Lumbar disc degeneration, aggravation/exacerbation.
4. Lumbar facet arthropathy/lumbar spondylosis without myelopathy, aggravation/exacerbation.

IME Report 7-9, ECF No. 9-1 (italics emphasis added).

         At some 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. ΒΆ 14, ECF No. 18. On March 13, 2015, Plaintiff settled for $43, 000 her third-party claim against the ...

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