United States District Court, D. Arizona
Denise M. Addie, Plaintiff,
American Family Mut. Ins. Co. et al., Defendants.
MEMORANDUM OF DECISION AND ORDER
STEPHEN M. McNAMEE, Senior District Judge.
Before the Court is Defendant American Family Mutual Insurance Company's Motion for Partial Summary Judgment. (Doc. 101.) Plaintiff has responded and Defendant has replied. (Docs. 105; 107.) For the reasons that follow, Defendant's motion is granted.
The material facts of this case are undisputed. This diversity insurance action arises out of a July 3, 2007, automobile accident in Truth or Consequences, New Mexico, in which a parked vehicle occupied by Plaintiff Denise Addie ("Addie") was struck by another vehicle that subsequently fled the scene. (Doc. 106 ¶¶ 1-4.) Consequently, a hit and run police report was filed. (Doc. 102-1 at 2-4.) Addie's vehicle was insured by a policy that Defendant American Family Mutual Insurance Company ("American Family") issued to Addie's brother, who resides in Arizona-the policy provided for payment of up to $100, 000 in "compensatory damages for bodily injury which an insured person is legally entitled to recover from an owner or operator of an uninsured motorist vehicle." (Doc. 106 ¶¶ 7-9.)
On July 6, 2007, Addie reported the accident to American Family and that she was planning on seeking medical treatment for headaches and bodyaches. (Id. ¶¶ 11-13.) American Family evaluated and paid the claimed property damages. (Doc. 102 ¶ 5.) On July 16, 2007, American Family insurance adjuster Tana Stevens ("Stevens") explained the medical payment claims process and transmitted the appropriate forms to Addie. (Id. ¶¶ 6-7.) On August 13, 2007, Addie told Stevens that she had moved and needed the forms sent to her new address. (Id. ¶ 8.) Stevens spoke with Addie again on August 31, 2007, about paperwork and Addie stated that she knew the accident was "minor." (Id. ¶ 9.) On September 14, 2007, Stevens received signed medical authorizations and a copy of the police report. (Id. ¶ 10.) On September 19, 2007, and again on October 17, 2007, Stevens requested medical records from Addie's primary care provider. (Id. ¶ 11.)
On October 24, 2007, Stevens contacted Addie for a recorded statement, which should have been taken at the outset; Addie complied the following day. (Doc. 106 ¶¶ 15-17.) On November 12, 2007, Addie informed Stevens that she had spinal bulges in two adjacent cervical vertebrae; in turn, Stevens informed Addie that American Family would need x-rays that pre-dated the date of the accident. (Doc. 102 ¶ 12.) As Addie disclosed additional providers, Stevens updated American Family's records and on February 1, 2008, Stevens sent signed medical authorizations to Addie's additional medical providers. (Id. ¶ 13-14.)
On March 3, 2008, David Grothaus ("Grothaus") replaced Stevens as the adjuster of Addie's claim. (Id. ¶ 15.) On July 2, 2008, Addie informed Grothaus that she had undergone a total of 41 surgical procedures, nine of which related to a 2001 workers' compensation injury. (Id. ¶ 16.) After requesting a renewed medical authorization form, Grothaus referred Addie's claim to American Family's medical services department on August 15, 2008, for a determination of whether Addie's injuries were related to the accident. (Id. ¶¶ 17-18.) However, medical services specialist Karen Van Belle ("Van Belle") required additional medical records to make the requested determination. (Id. ¶ 19.)
Between November 17, 2008, and March 4, 2009, Grothaus made eight attempts to contact Addie about her treatments and medical problems, which led to two separate updates. (Id. ¶¶ 20-22.) On April 15, 2009, Grothaus requested the additional medical records required by the medical services department; those records were received the following month. (Id. ¶¶ 24-25.) However, the records were still incomplete and Van Belle indicated an independent medical examination ("IME") would be appropriate to determine the relatedness and medical necessity of Addie's post-accident treatments. (Id. ¶ 25.) Grothaus continued to acquire the relevant medical records from Addie's medical care providers. (Id. ¶¶ 26-27.)
In August 2009, Grothaus received correspondence from Gene Gulinson ("Gulinson") stating that he had been hired to represent Addie. (Id. ¶ 28.) In a August 17, 2009, letter acknowledging Gulinson was representing Addie, Grothaus disclosed that American Family would be requesting Addie submit to an IME once Addie's medical records could be assembled. (Doc. 106-1 at 27.) American Family retained Medical Management Online ("MMO") to coordinate the IME, and on November 3, 2009, MMO sent Addie a letter informing her that the IME was scheduled for December 8, 2009, in Phoenix, Arizona, with Dr. Gary Dilla ("Dilla"). (Id. at 29.) Addie appeared for her IME. (Doc. 102 ¶ 31.)
The purpose of the IME was to determine: (1) what medical problems Addie attributed to the accident; (2) whether those complaints, imaging findings, and treatments were reasonable and causally related to the accident; and (3) whether all the diagnostic tests, medical care, and procedures were medically necessary. (Doc. 102-1 at 160-62.) The same day of the IME, Dr. Dilla opined that he could not conclusively determine the causal relationship between the accident and Addie's claimed injuries because:
there was no immediate medical attention at the scene of this alleged motor vehicle accident. There is no police report. There is no emergency room note. In fact, there are no medical notes regarding this incident or any pain complaints thereof for a period of a little over one month subsequent to the time frame of said accident. (Doc. 106 ¶ 21.) Thus, concluded Dr. Dilla, "the only causal relationship would be the claimant's subjective reporting that an accident occurred, and that she developed symptoms thereafter, which were not present prior. If one finds this history as credible, then there would be a causal relationship." (Id.)
When MMO asked for a clarification of his opinion on causation, Dr. Dilla explained that the accident could have caused Addie's injuries, but that he could not give any more definitive diagnosis without information documenting the specifics of the accident and the alleged injury. (Doc. 102-1 at 166.) MMO sent Dr. Dilla additional medical records and requested an addendum to his report opining about whether any of the new documents changed his opinion. (Doc. 102 ¶ 33.) On December 30, 2009, Dr. Dilla responded his opinion was unchanged and reiterated that causality rested on Addie's credibility. (Doc. 102-2 at 4-5.)
Meanwhile, Gulinson arranged for Addie to be examined by Dr. Marjorie Eskay-Auerbach on December 10, 2009. (Id. ¶ 24.) On December 28, 2009, Dr. Eskay-Auerbach concluded "[t]o a reasonable degree of medical probability, [Addie] became symptomatic... as a result of the accident in question." (Doc. 106-1 at 19.) The following day, Addie made her demand for tender of the policy's uninsured motorist ("UIM") limits. (Doc. 106 ¶ 27.)
On January 5, 2010, American Family retained a biomechanical engineer to opine about the force of the collision as the mechanism of Addie's injury. (Id. ¶ 28.) On March 25, 2010, the biomechanical engineer reported there was not sufficient information to render an opinion. (Id. ¶ 30.) Also, from January 6, 2010, to April 28, 2010, Grothaus corresponded with Gulinson about obtaining Addie's additional medical records. (Doc. 102 ¶¶ 34-36.) On May 7, 2010, American Family requested records for Addie's 11 prior car accidents and workers' compensation claims. (Doc. 106 ¶ 31.)
On June 9, 2010, MMO transmitted the additional medical records to Dr. Dilla and requested another addendum to his report again asking whether any of the documents changed his earlier opinion. (Doc. 102 ¶ 39.) In his fourth and final addendum dated July 28, 2010, Dr. Dilla explained that none of the additional medical records suggested that Addie's spinal injury symptoms developed before the accident, and therefore his earlier opinion as to causation remained unchanged. (Doc. 102-2 at 24-25.) Dr. Dilla did note, however, that it appeared that Addie may have attempted to try to claim that her neck injury was related not only to the accident in question, but also an earlier accident from 2001. (Id. at 22-23.) Dr. Dilla also noted that imaging studies performed after the accident did "not show pathology ...