Baker v. Progressive Direct Ins. Co.
| Decision Date | 21 April 2023 |
| Docket Number | 2:21-cv-00307-JCB |
| Parties | SANDRA BAKER, Plaintiff, v. PROGRESSIVE DIRECT INSURANCE COMPANY, DOES I-V, and ROE CORPORATIONS VI-X, inclusive, Defendants. |
| Court | U.S. District Court — District of Utah |
Under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, all parties have consented to Judge Jared C. Bennett conducting all proceedings in this case, including entry of final judgment.[1]Defendant Progressive Direct Insurance Company (“Progressive”) filed a motion for partial summary judgment regarding Plaintiff Sandra Baker's (“Ms. Baker”) third and fourth causes of action (i.e., breach of the implied covenant of good faith and fair dealing).[2]The court carefully reviewed the parties' respective memoranda and their accompanying exhibits. The court also considered the points that the parties' counsel presented at oral argument on February 6, 2023.[3]Now being fully advised, the court grants Progressive's motion and dismisses with prejudice Ms Baker's third and fourth causes of action.
On September 4, 2020, a drunk driver hit the car in which Ms Baker was an occupant[4]and caused Ms. Baker to suffer some injuries.[5]After filing an insurance claim, Ms. Baker settled with the drunk driver's insurance company for policy limits at $100,000.[6]
Ms Baker held an insurance policy of her own with Progressive that provided Personal Injury Protection (“PIP”) and Underinsured Motorist benefits (“UIM”).[7] Progressive paid Ms. Baker $3,000 in her PIP benefits after the accident.[8]On January 18, 2021, Ms Baker filed a claim for UIM benefits with Progressive for the policy's limit, which was $100,000.[9]The claim alleged that Ms. Baker had suffered injuries requiring medical treatment beyond what the $103,000 in prior compensation would cover.[10] Among these treatments was a surgery that Physician Assistant Thomas Cureton (“Mr Cureton”) recommended.[11]
On February 2, 2021, Jeremy Rasmussen (“Mr. Rasmussen”) from Progressive initially evaluated Ms. Baker's claim for UIM benefits.[12]A few hours later, another insurance adjuster “re-triag[ed]” the claim with another claims specialist, Debra Silva (“Ms. Silva”), because Ms. Baker's surgery recommendation was from Mr. Cureton, who was not a medical doctor.[13]Progressive stated at oral argument that Ms. Silva is not medically trained.
In her evaluation of Ms. Baker's claim, Ms. Silva disregarded Mr. Cureton's surgical recommendation because “he is prohibited under [Utah] law from billing under his own name”[14]and cannot make a surgical recommendation without the supervision of a medical doctor.[15]Other notes from Ms. Silva indicate that Mr. Cureton was not under the supervision of a medical doctor, that no medical provider referred Ms. Baker to Mr. Cureton, and that Mr. Cureton has previously testified in depositions that “lien funding companies refer his patients.”[16]Also, Ms. Silva stated that because Mr. Cureton could not bill under his own name under Utah law, Ms. Silva was not considering Mr. Cureton's bills.[17]
Additionally, Ms. Silva reviewed the bills from Ms. Baker's chiropractor. Similar to Mr. Cureton's referred patients, Ms. Silva noted that Ms. Baker's chiropractor visits were billed to the “Surgical Lien Funding Co[mpany]” and that the chiropractor's bills were “very high” for four office visits.[18]Additionally, Ms. Silva found it odd that Ms. Baker's shoulder did not begin to hurt until seven days after the accident.[19]Ms. Silva also entirely discounted the chiropractor's 25% disability rating of Ms. Baker because the chiropractor is not a medical doctor.[20]
Ms. Silva also questioned why Dr. Sonnenberg placed Ms. Baker in a walking boot and whether Dr. Sonnenberg or his Physician Assistant actually examined Ms. Baker, especially when another medical doctor later said that the x-rays did not show a fracture necessitating a walking boot.[21]Ms. Silva noted that Dr. Sonnenberg “is almost exclusively seen in at[torney] rep[resentation]-referral cases in [Utah].”[22]As to the physician who told Ms. Baker she did not need a walking boot, he charged $1,000 for that office visit, which was billed to a “Lien Funding Co.,” which Ms. Silva found problematic.[23]
Given the participation of Mr. Cureton, Dr. Sonnenberg's way of obtaining patients, and the influence of the “Lien Funding Co.,” Ms. Baker's claim was referred to Progressive's Special Investigation Unit.[24] The Special Investigation Unit noted that it needed to rule out whether Mr. Cureton could make surgical recommendations without a physician and whether Dr. Sonnenberg's company was falsifying records.[25]Based on this analysis, among other things, Ms. Silva believed that Ms. Baker had been made whole with what she had received already and recommended that Ms. Baker's claim be denied absent additional information curing the problems that Ms. Silva believed she discovered.[26]
On March 11, 2021, Ms. Baker submitted a supplemental claim for UIM policy limits to Progressive.[27]Included in this supplemental claim were the opinions of two orthopedic surgeons: Drs. Casey Bachison and Michael Dee.[28]Both doctors provided future treatment recommendations based on a review of Ms. Baker's records and not based on their own treatment-based observations.[29]For example, Dr. Bachison-an orthopedic spine surgeon- stated that the following would be “more likely than not” regarding Ms. Baker's treatment: (1) “10-20 visits with physical therapy per year” at $2,500 per year;[30](2) “progressive degenerative disc disease” that will lead to “facet joint arthritis and neck and low back pain,” although no cost was attributed to this entry;[31](3) “up to 3 epidural injections per year” to treat the herniated discs in her cervical and lumbar spine at $4,500 per year;[32](4) “anterior cervical discectomy and fusion at levels C5-C6, C6-C7, and C7-T1” at a cost of $75,000;[33]and (5) “posterior lumbar discectomy and fusion,” at a cost of $50,000.[34] From these things, Dr. Bachison also recommended other procedures, therapies, and treatments, but the likelihood of those being necessary was less clear than those he said were “more likely than not.” However, the procedures and treatment that Dr. Bachison said were “more likely than not” totaled more than $100,000 without adding any other ambiguously recommended treatment or general damages for pain and suffering, among other things.
Instead of opining on spinal care, Dr. Dee's analysis focused on Ms. Baker's shoulders and left ankle.[35]Although Dr. Dee recommended several different treatments and therapies, he mentioned the following as being required “more likely than not”: (1) ongoing treatment for her left ankle for an unspecified cost;[36](2) braces and activity modification for her left ankle at an unspecified cost;[37](3) “a nerve conduction study and electromyography of her left lower extremity” at an unspecified cost;[38](4) 5-10 physical therapy sessions per year at a cost of $12,500;[39](5) 15 corticosteroid injections in her lifetime at a cost of $7,500;[40](6) a right shoulder arthroscopy to repair her torn rotator cuff at a cost of between $15,000-35,000;[41]and, eventually, (7) a right total shoulder arthroplasty at a cost of between $40,000-50,000.[42]Thus, to address Ms. Baker's shoulder and ankle injuries, Dr. Dee's “more likely than not” costs were at least between $75,000 and $100,000. When combined, Drs. Bachison and Dee stated that between $175,000 and $200,000 in future treatment costs were “more likely than not.”
Nevertheless, Ms. Silva was not persuaded. For starters, Ms. Silva characterized the letters from Drs. Bachison and Dee as “a summary of all the available treatment possibilities one could have for the spine and the [shoulder]/foot/ankle,” and, therefore, the recommended therapies are “speculative and questionable,” “arguably unclear,” and “not reasonable.”[43]Next, Ms. Silva noted that neither doctor examined Ms. Baker and that Ms. Baker has not received additional medical treatment since November 2020.[44] Additionally, Ms. Silva-who is not medically trained-compared an MRI from Ms. Baker before her accident and after and concluded that the MRI “showed stable condition and [was] unchanged.”[45]Therefore, Ms. Silva stated, “I see no change in [the] value of this case” and sought authority “to reject” Ms. Baker's renewed claim because what Ms. Baker had previously received was “more than sufficient.”[46]
On March 16, 2021, Ms. Silva contacted Ms. Baker's attorney and stated that no new offer would be extended because the opinions of Drs. Bachison and Dee were speculative and that Ms. Baker's “C-films” before the accident showed no change from the films taken after the accident.[47]Ms. Silva provided Ms. Baker's attorney with the name of the law firm that would represent Progressive if Ms. Baker decided to pursue litigation.[48] On March 17, 2021, Ms. Baker's counsel contacted Ms. Silva inquiring whether there was any “wiggle room” in Progressive's position.[49]Ms. Silva reiterated that “the merits of the 2 [reports from Drs. Bachison and Dee] are up for debate” because those doctors did not examine Ms. Baker, listed all “conceivable treatments a person can have performed,” did not say that surgery was “scheduled or certain,” and opined that questionable treatments were needed.[50] Ms. Silva also stated that the reports of Drs. Bachison and Dee were prepared at the behest of an attorney and that Ms. Baker's pre-accident and post-accident MRIs show that her spine was stable.[51]Ms. Silva did not seek a medical opinion from an expert but, instead, stated that Progressive would explore its own medical opinions through its “own...
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