Hampton v. Geico Ins. Co.

• Decision Date: 13 December 2010
• Docket Number: Civil Action No. 2:09–cv–327.
• Citation: 759 F.Supp.2d 632
• Parties: Tracey L. HAMPTON, Plaintiff,v.GEICO INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

759 F.Supp.2d 632

Tracey L. HAMPTON, Plaintiff,

v.GEICO INSURANCE COMPANY, Defendant.

Civil Action No. 2:09–cv–327.

United States District Court, W.D. Pennsylvania.

Dec. 13, 2010.

Fred G. Rabner, Rabner Law Offices, Monte J. Rabner, Scott M. Simon, Rabner Law Offices, P.C., Pittsburgh, PA, for Plaintiff.Joseph A. Hudock, Jr., Summers, McDonnell, Hudock, Guthrie & Skeel, Pittsburgh, PA, for Defendant.

MEMORANDUM ORDER

DONETTA W. AMBROSE, District Judge.

The Complaint in the above captioned case was filed in the Court of Common Pleas of Allegheny County, Pennsylvania on or about January 16, 2009. Subsequently, this action was removed to this Court by Defendant on March 18, 2009, and was referred to United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 638(b)(1), and Local Rules of Court 72.C and 72.D.

The Magistrate Judge's Report and Recommendation (ECF No. 38), filed on November 26, 2010, recommended that the Motion for Summary Judgment filed by Defendant GEICO Insurance Company (ECF No. 27) be granted and that judgment be entered in favor of Defendant GEICO Insurance Company. Service was made on all counsel of record. The parties were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, that they had fourteen (14) days to file any objections. Plaintiff filed objections to the Report and Recommendation on December 9, 2010.

After review of the pleadings and documents in the case, together with the Report and Recommendation and objections thereto, the following Order is entered:

AND NOW, this 13th day of December, 2010,

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendant GEICO Insurance Company (ECF No. 27) is GRANTED.

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 38) of Chief Magistrate Judge Lenihan, dated November 26, 2010, is adopted as the opinion of the Court.

IT IS FURTHER ORDERED that judgment is entered in favor of Defendant and against Plaintiff, and the case marked closed.

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, United States Chief Magistrate Judge.I. RECOMMENDATION

It is respectfully recommended that the Motion for Summary Judgment (ECF No. 27) filed by Defendant, GEICO General Insurance Company, be granted.

II. REPORT

Plaintiff, Tracey L. Hampton (“Hampton” or “Plaintiff”), instituted this action against her automobile insurance carrier, GEICO General Insurance Company (“GEICO” or “Defendant”), for breach of contract, bad faith pursuant to 42 Pa. Cons.Stat. § 8371, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201.1 et seq. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1332(a), 1441(b). Venue in this District is proper under 28 U.S.C. § 1441(a).

Four issues are presented in the pending summary judgment motion: (1) whether GEICO breached its insurance contract with Plaintiff when it discontinued payment of first party medical benefits based on the results of a peer review and a reconsideration, pursuant to § 1797(b) of the Motor Vehicle Financial Responsibility Law (“MVFRL”); (2) whether Plaintiff can still pursue a bad faith claim where she has failed to prove breach of contract; (3) whether Plaintiff's bad faith claim is precluded by § 1797 of the MVFRL, which provides the exclusive means for a plaintiff to seek redress for an insurer's denial of a first party benefits claim; and (4) whether GEICO's conduct constitutes merely nonfeasance, as opposed to misfeasance, and therefore the UTPCPL does not provide Plaintiff with a private cause of action. Because the Court finds that no material issues of fact exist and Defendant GEICO is entitled to judgment as a matter of law, the Court recommends that GEICO's Motion for Summary Judgment be granted.

A. Facts and Procedural History

The material facts are not disputed.¹ At all relevant times, Plaintiff was insured by GEICO on a policy of automobile insurance providing, among other things, first party medical benefit coverage. (Compl. at ¶ 3; GEICO Family Automobile Policy Renewal Declarations (“Renewal Decl.”) at 2, Def.'s Ex. “A,” ECF No. 30–1.) Specifically, GEICO provided Plaintiff with first party medical coverage benefits of $100,000.00, as well as providing for extraordinary medical benefits, with the latter providing up to $1,000,000.00 in available medical coverage related to injuries sustained in an automobile accident. (Renewal Decl. at 2.)

On February 17, 2006, Plaintiff was operating one of her insured vehicles when she was rear-ended by another driver. (Compl. at ¶ 5.) Plaintiff allegedly sustained personal injuries in the accident for which she sought medical treatment. (Compl. at ¶¶ 6–7.) GEICO paid for Plaintiff's medical treatment for approximately six months after the accident without questioning the reasonableness or medical necessity of the treatment. (Compl. at ¶ 8.)

Immediately following the accident, Ms. Hampton sought medical attention at the Emergency Department of UPMC–Presbyterian, at which time she was diagnosed as having cervical and lumbar strain and sprain with pain noted in her left shoulder and upper left arm. (Pl.'s Ex. 1, ECF No. 36–1.) Thereafter, she was seen by her PCP, Cynthia G. Ayers, M.D., on March 13, 2006, at which time, Dr. Ayers noted the existence of muscle spasms in her neck and upper back, and diagnosed muscular contusions of the trapezius and left posterior cervical area. (Pl.'s Ex. 2, ECF No. 36–2.) Dr. Ayers prescribed anti-inflammatory, pain and muscle relaxant medications and a course of physical therapy. In addition, prior to the March 13th office visit, it appears that Dr. Ayers ordered X-rays of Plaintiff's cervical spine and left shoulder on February 23, 2006. The Radiology Report dated February 23, 2006 revealed evidence of mild arthritic changes in the left shoulder area; X-rays of the cervical spine were unremarkable. Id.

On March 7, 2006, Plaintiff was examined by Thomas D. Kramer, M.D., an orthopedic specialist, apparently upon Dr. Ayers' referral. Dr. Kramer also reviewed the X-rays of Plaintiff's cervical spine and left shoulder from February 23, 2006. Plaintiff complained of neck pain and headaches. Dr. Kramer observed upon physical examination obvious spasm palpated on the lower cervical region bilaterally. He diagnosed her condition as cervical and thoracic strain, and ordered an MRI and physical therapy of the cervical spine. (Pl.'s Ex. 3, ECF No. 36–3.)

Plaintiff was again seen by Dr. Kramer for a follow-up visit on April 4, 2006, at which time Dr. Kramer noted her complaints of pain were mainly in the thoracic region of the lower cervical spine. Dr. Kramer further noted that Plaintiff indicated the physical therapy aggravated her pain and caused increased discomfort. The MRI study of the cervical spine disclosed no significant disc herniations and some mild degenerative changes at the C4–5 and C5–6 regions of the cervical spine. Dr. Kramer discontinued physical therapy and referred her to a pain management specialist for possible injections. (Pl.'s Ex. 3, ECF No. 36–3.)

From May 31, 2006 through July of 2006, Ms. Hampton was treated at Advanced Pain Management by Lloyd G. Lamperski, M.D. and Mark R. LoDico, M.D., pain management specialists. Plaintiff was first evaluated by Dr. Lamperski on May 31, 2006, at which time he diagnosed Plaintiff's condition as cervical spinal pain secondary to a discogenic syndrome versus facet arthropathy status post motor vehicle accident with component of myofascial pain. Plaintiff was given bilateral cervical facet nerve blocks on June 13, 2006 and left cervical facet rhizotomy on July 18, 2006. Despite the use of medications and nerve blocks, no significant relief of the Plaintiff's symptoms occurred. (Pl.'s Ex. 4, ECF No. 36–4.)

Plaintiff was evaluated by a neurologist, Richard B. Kasdan, M.D. on July 12, 2006, at the request of her attorney. At such time, Dr. Kasdan noted complaints of severe and persistent headaches with the existence of cervical and inter scapular pain. He noted that her symptoms had persisted despite a course of conservative treatment involving physical therapy, traction, medications, and nerve blocks, and that there were no abnormalities on her cervical or brain MRIs. He advised her to continue with her pain management course with Dr. LoDico and if that fails, to seek chiropractic care. (Pl.'s Ex. 5, ECF No. 36–5.)

Subsequently, Plaintiff sought follow-up treatment with Dr. Kramer on August 15, 2006, for her cervical pain. Plaintiff reported that she was unhappy with Dr. Lodico's office, and got no relief following the cervical facet blocks. Dr. Kramer noted that a recent neurological examination by Dr. Kasdan revealed no abnormalities. Physical examination revealed full active range of motion of the cervical spine and left shoulder without any signs of impingement, and some tenderness in the left trapezium and over the superior angle of the scapula. Dr. Kramer referred her to another pain specialist for a pain evaluation, and provided her with Lidoderm patches to alleviate some of her superficial type of pain complaints. (Pl.'s Ex. 3, ECF No. 36–3.)

On August 28, 2006, Ms. Hampton was evaluated by Dr. Marc J. Adelsheimer, a physical medicine and rehabilitation specialist, upon the referral of Dr. Kramer. Dr. Adelsheimer offered a diagnosis of cervical strain with ongoing muscle spasms and trigger points, with underlying mild degenerative disease and minimal radiculitis. His plan of treatment included an aggressive therapy program and a muscle relaxant, in addition to her current medications. He indicated that if she did not have a good response to that, he would recommend a course of epidural steroid injections to the cervical region of the spine. He also indicated she may be a candidate for some...