Moe v. GEICO Indem. Co., CV 19-23-BU-BMM-KLD

CourtU.S. District Court — District of Montana
Writing for the CourtKathleen L. DeSoto United States Magistrate Judge
PartiesBRANDON L. MOE, individually and on behalf of all individuals of the class similarly situated,, Plaintiffs, v. GEICO INDEMNITY CO., GOVERNMENT EMPLOYEES INSURANCE COMPANY, and JOHN DOES I-XX,, Defendants.
Docket NumberCV 19-23-BU-BMM-KLD
Decision Date15 September 2021

BRANDON L. MOE, individually and on behalf of all individuals of the class similarly situated,, Plaintiffs,
v.

GEICO INDEMNITY CO., GOVERNMENT EMPLOYEES INSURANCE COMPANY, and JOHN DOES I-XX,, Defendants.

No. CV 19-23-BU-BMM-KLD

United States District Court, D. Montana, Butte Division

September 15, 2021


FINDINGS AND RECOMMENDATION

Kathleen L. DeSoto United States Magistrate Judge

This insurance bad faith case comes before the Court on Defendants GEICO Indemnity Co. ("GEICO Indemnity") and Government Employees Insurance Company's ("Government Employees") (collectively "GEICO")[1] motion for summary judgment on Plaintiff Brandon L. Moe's ("Moe") remaining claims. (Doc. 86). For the reasons discussed below, Defendants' motion should be granted and this matter should be dismissed.

I. Background

On March 15, 2015, Moe was injured in an automobile accident when the vehicle in which he was riding as a passenger was struck from behind by another vehicle driven by Loretta Wescott. (Doc. 100, at ¶¶ 1-2). At the time of the accident, Wescott's vehicle was insured under an automobile liability insurance policy issued by GEICO. (Doc. 100, at ¶2).

On March 17, 2015, Moe called GEICO and spoke with claims adjuster Lilliana Stevens about the accident. He reported low back pain and said he planned to go to his primary care physician the following day. (Doc. 100, at ¶3). On March 18, 2015, Moe visited his primary care physician and was referred to Health in Motion Physical Therapy + Wellness ("Health in Motion"). Moe visited Health in Motion eleven times for physical therapy between March 19, 2015 and June 22, 2015. (Doc. 100, at ¶ 16). For those eleven visits, Moe incurred medical bills totaling $2, 345. (Doc. 100, at ¶17).

On March 18, 2015, GEICO sent Moe a letter requesting that he complete a HIPAA compliant authorization form ("Medical Authorization Form") that would give GEICO permission to request documentation from his medical providers. (Doc. 100, at ¶ 4). During a call with Stevens on May 18, 2015, Moe indicated he would submit the Medical Authorization Form to GEICO once he had completed physical therapy. (Doc. 87-11; Doc. 100 at ¶31). Stevens' notes reflect that GEICO received the Medical Authorization Form back from Moe on July 6, 2015. (Doc. 100, at ¶ 5; Doc. 100-6, at 5).

During this period, Moe had health insurance through his employer administered by Blue Cross Blue Shield of Montana ("Blue Cross"). (Doc. 100, at ¶ 7). Although Moe provided Health in Motion with his Blue Cross insurance card and filled out an intake form authorizing Health in Motion to bill Blue Cross (Doc. 87, at ¶¶ 11-12; Doc. 87-4, at 5), Health in Motion sent Moe's medical bills to GEICO. (Doc. 87, at ¶ 18). Moe testified at his deposition that it was his understanding that Health in Motion would submit his medical bills to GEICO for payment. (Doc. 100, at ¶ 8). Between April 7, 2015 and September 2, 2015, Health in Motion submitted Moe's medical bills to GEICO six times. (Doc. 100, at p. 35 ¶ 28). Each time, GEICO responded with a form letter explaining that GEICO is "not a health insurance carrier and specifically not an insurer of Brandon Moe," and suggesting that Health in Motion contact its "patient to secure filing information." (Doc. 87, at ¶ 21; Doc. 100, at p. 35, 130).

On April 21, 2015, Health in Motion gave Moe a copy of GEICO's April 15, 2015 form letter and informed Moe that his medical bills were unpaid. (Doc. 87-7; Doc. 100, at ¶ 22). On or about May 26, 2015, Health in Motion sent Moe a medical lien and requested that he sign and return it. (Doc. 100-37; Doc. 100-38). Moe did not sign and return the form as requested. (Doc. 100, at ¶ 25). Health in Motion also mailed GEICO a notice that it was claiming a medical lien. (Doc. 100-39).

On June 30, 2015, Moe's employer provided a completed wage verification form to GEICO, which indicated that Moe was paid for all time missed following the accident. (Doc. 87-12; Doc. 100 at ¶33). Moe missed approximately two-and-a-half days of work, and was compensated for his time off by using sick leave. (Doc. 87, at ¶ 34-35; Doc. 100, at 14, 36).

On August 14, 2015, Moe called GEICO and advised Stevens that he had completed his physical therapy. Stevens told Moe that GEICO would obtain his medical records and then begin an evaluation of his claim for resolution. (Doc. 100, at ¶36). On October 15, 2015, GEICO tried reaching Moe by phone but could not reach him. (Doc. 100, at ¶38). The next day, GEICO sent Moe a letter requesting that he contact GEICO regarding his claim. (Doc. 100, at ¶ 39). Several weeks later, on December 7, 2015, Moe called GEICO and advised Stevens that he had a new phone number. (Doc. 100, at ¶ 40). During their call, Stevens offered to settle Moe's claim for $1, 000 plus outstanding medical bills. (Doc. 87-9, at 4; Doc. 100 at ¶ 41). Moe rejected the offer and stated that he would get an attorney. (Doc. 100, at 142).

After December 7, 2015, Moe became unresponsive to GEICO's attempt to contact him regarding his claim. (Doc. 100, at ¶43). On January 7, 2016, GEICO sent Moe a letter asking him to contact GEICO regarding his claim. (Doc. 100, at ¶47). Moe did not respond (Doc. 100, at ¶48), and on March 15, 2016, GEICO sent Moe a letter advising him of the statute of limitations on his claim and informing him that GEICO would close his file due to lack of responsiveness if he did not respond. (Doc. 100, at ¶49). Again, Moe did not respond. (Doc. 100, at ¶50).

All told, GEICO spoke with Moe six times between March 17, 2015 and December 7, 2015 regarding his bodily injury claim. (Doc. 87-9, at 3; Doc. 100 at 34, ¶ 20). GEICO also sent Moe multiple letters and left him multiple voicemails regarding his bodily injury claim during this period. (Doc. 87-9 at 4; Doc. 100, at ¶ 29).

Moe first spoke with attorney Mark Luebeck regarding his claim on June 20, 2016. (Doc. 100, at ¶51). In September 2016, Health in Motion sent Moe's bills to collections and Credit Systems contacted Moe regarding his unpaid medical bills. (Doc. 100, at ¶ 53). Moe formally retained Luebeck on October 4, 2016. (Doc. 100, at ¶ 52). In a letter dated January 6, 2017, Luebeck informed GEICO that he was representing Moe. (Doc. 100, at ¶57; Doc. 87-22). Luebeck stated it was his understanding that GEICO had refused payment for Moe's accident-related medical bills and asked GEICO to state in writing why it had denied payment. (Doc. 87-22). GEICO responded by way of a letter dated January 12, 2017, explaining that it "did not refuse payment for Mr. Moe's medical bills, Ridley was not requested." (Doc. 100, at 36, ¶ 33; Doc. 100-18).

On March 1, 2017, GEICO spoke with Luebeck about Moe's claim for the first time. (Doc. 100, at ¶ 62). During the call, GEICO asked if Moe was still treating and Leubeck stated that he would let GEICO know after speaking with Moe. (Doc. 100, at ¶ 63). GEICO followed up with Luebeck by way of a letter dated March 31, 2017, in which it asked for a status update regarding Moe's claim, requested any documentation regarding medical bills, and inquired when it could expect a demand. (Doc. 87-28). On April 28, 2017, Stevens left Luebeck a voicemail again asking for status update on Moe's claim and whether Moe wanted advance payment of medical bills. (Doc. 87-30). On May 24, 2017, after learning from Moe that he was represented by counsel, Credit Systems sent Luebeck a letter for the purpose of filing a medical lien for payment of the unpaid medical bills from Health in Motion should Luebeck receive any settlement money on Moe's behalf. (Doc. 100-48).

Approximately one month later, on June 29, 2017, Luebeck sent GEICO a Ridley demand letter requesting that GEICO pay Moe's accident-related medical bills and wage loss. (Doc. 87, at ¶ 72; Doc. 100-41). GEICO responded with a letter to Luebeck on July 7, 2017, acknowledging receipt of the Ridley demand and requesting confirmation that Luebeck's office would satisfying any medical liens. (Doc. 87-32). After a follow-up letter and voicemail from GEICO (Doc. 87-33; Doc. 87-23), Luebeck advised GEICO on September 7, 2017, that his office would satisfy any valid medical liens. (Doc. 100-42). On September 19, 2017, GEICO issued a check to Luebeck in the amount of $2, 481.00 for Moe's medical bills. (Doc. 87-35; Doc. 100 at ¶ 78). On October 10, 2017, GEICO issued a check to Luebeck in the amount of $979.00 for Moe's alleged lost wages. (Doc. 87-36; Doc. 100 at ¶ 79).

Moe commenced this action in December 2018, alleging that GEICO Indemnity failed to promptly advance payment for his medical bills and lost wages under Ridley v. Guaranty Natl Ins. Co., 951 P.2d 987 (Mont. 1997) and Dubray v. Farmers Ins. Exck, 36 P.3d 897 (Mont. 2001) during the period when he was not represented by counsel.[2] In October 2019, Moe filed an Amended Complaint adding Government Employees as a defendant. (Doc. 36). The Amended Complaint asserts four claims for relief: (1) declaratory and injunctive relief (Count I); (2) violations of Montana's Unfair Trade Practices Act ("UTPA") and common law bad faith (Count II); (3) class action (Count III); and (4) common fund (Count IV). (Doc. 36).

The Court has dismissed Moe's claim for declaratory and injunctive relief in its entirety (Count I), and has dismissed Moe's UTPA claim to the extent it alleges violations of Mont. Code Ann. § 33-18-201(1) and (3) (Count II). (Docs. 50, 59, 77). For purposes of GEICO's summary judgment motion, Moe's remaining claims are for violations of Mont. Code Ann. § 33-18-201(4), (6) and (13) and for common law bad faith (Count II).[3]

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the...

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