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McFerrin v. Allstate Prop. & Cas. Co.

United States District Court, E.D. Kentucky, Southern Division

June 27, 2014


Page 925

For Brandon McFerrin, Plaintiff: William A. Hayes, LEAD ATTORNEY, Middlesboro, KY.

For Allstate Property and Casualty Insurance Company, doing business as Kentucky Mississippi Auto MCO, Defendant: Darrin Winn Banks, LEAD ATTORNEY, Porter, Schmitt, Banks & Baldwin, Paintsville, KY; Marcia Milby Ridings, LEAD ATTORNEY, Hamm, Milby & Ridings, London, KY.

Page 926


Gregory F. Van Tatenhove, United States District Judge.

This case began with an automobile accident in Leslie County, Kentucky. After the accident, insurance claims were asserted both against the tortfeasor's insurance company and against Plaintiff Brandon McFerrin's insurance company. This litigation arises out of the latter claim. Presently before the Court is Defendant Allstate Property & Casualty Insurance Company's (" Allstate" ) Motion for Partial Summary Judgment. [R. 3.] Also before the Court is Plaintiff McFerrin's Motion for Permission to Supplement his answers to interrogatories. [R. 22.] Even if the Court allows the supplementation, however, the answers provided still are insufficient to meet McFerrin's burden of proof, and thus summary judgment in favor of Allstate will be granted and the motion to supplement will be denied as moot.


On June 6, 2010, Plaintiff McFerrin and another driver were in a motor vehicle accident. [R. 1 at 7.] The investigating officer who arrived at the scene detected no injuries to either driver. [R. 20-4 at 3; R. 20-5.] McFerrin denied any need for treatment and drove his car to his mother's place of employment, and then to his sister-in-law's residence. [R. 20-3 at 2; R. 20-4 at 4.] At the urging of his family members, McFerrin eventually reported to the emergency room at the Mary Breckinridge Hospital later that day, reporting pain in his upper back, left shoulder, and left elbow. [R. 20-4 at 4; R. 20-6.] At the hospital, McFerrin had X-rays of his shoulder and elbow, and a CT scan of his spine. [R. 20-8.] According to the reviewing radiologists at the Mary Breckinridge hospital, both the X-rays and the CT scan were interpreted as normal studies with no injuries. [ Id. ] Curiously, however, despite the negative results, McFerrin was transferred to the University of Tennessee Medical Center where he was examined by an orthopedist, Dr. Richard Smith. [R. 20-6 at 3; R. 20-9.]

The record reflects that Dr. Smith examined McFerrin on the next day, June 7, 2010, and that his report directly contradicts the findings of the radiologists at Mary Breckinridge. Neither party explains why McFerrin was transferred to another hospital after the negative results on his initial X-rays, nor why Dr. Smith examined McFerrin, nor have they indicated whether Dr. Smith analyzed different X-rays or CT scans than the ones that were done at Mary Breckinridge. The record presented to the Court also does not explain these facts.[1] Doctor Smith states in his June 7, 2010 assessment that McFerrin had a " [l]eft scapula fracture and [p]ossible T12 fracture." [R. 20-9.] The report further states that " X-rays show a moderate deformity at T12 which may be due to acute fracture or could possibly be an old injury." [ Id. at 1 (emphasis added).] Doctor Smith ordered a brace for McFerrin, and then saw him in a follow-up visit later that month. [ Id. ] The report from the follow-up visit states that McFerrin could walk " without any difficulty" and that his fractures were healing.

Page 927

[R. 20-10.] Doctor Smith reported that an X-ray showed the " T12 fracture in good alignment" and notes that he could not even see the fracture present on the CT scan.[2] [ Id. ] McFerrin received pain medication and was told to start " weaning himself off" of the brace. [ Id. ] On July 21, 2010, after another follow-up visit, Dr. Smith reported that McFerrin's back " is not really bothering him at all," and that he had some tightness in his left shoulder and about 80% of his normal range of motion. [R. 20-11.] Accordingly, Dr. Smith discharged McFerrin with instructions on some range of motion exercises to work on. [ Id. ] McFerrin returned to his normal work duties on July 21, 2010 with no listed work restrictions. [R. 20-12.]

Allstate emphasizes, and McFerrin does not dispute, that prior to the accident in June, 2010, McFerrin had suffered significant back injuries. In March, 2001, McFerrin was treated at Mary Breckinridge Hospital for a neck injury and other minor lacerations suffered in a car accident. [R. 20-13.] Later that same year, McFerrin went to the emergency room again with complaints of severe back pain after lifting a patient at work. [R. 20-14.] In July, 2007, the Mary Breckinridge emergency records report that McFerrin came in twice -- once with further complaints of severe back pain and once because of musculoskeletal back pain and recurrent seizure activity, probably due to his fall from a ladder. [R. 20-15; R. 20-16; R. 20-17.] After his fall from the ladder, McFerrin was transferred to Wellmont Holston Valley Medical Center where he stayed for five days. [R. 20-16; R. 20-17.] At the time of his discharge, his pain was described as " rather severe" and he had to walk with a walker. [R. 20-17 at 2.] The medical records, dated July 21, 2007, state that his medical history includes chronic back pain and seizures. [ Id. at 4.] In September, 2007, McFerrin began seeing chiropractor Dale Williams for " severe" pain in his lower back. [R. 20-18.] According to those records, McFerrin described his pain at that time as constant, and said it interfered with his work, sleep, daily routine, and recreation. [ Id. at 1.] McFerrin further describes his condition as getting progressively worse, and rated the severity of the pain as 10} with no medication and 7/10 with medication. [ Id. ] Doctor Williams diagnoses McFerrin as suffering from pain in his thoracic spine and lower back, cervicalgia, and muscle spasms. [ Id. at 4.] That same month, McFerrin saw another doctor, Dr. George Chaney, who gave him further injections of pain medication and referred him to a neurosurgeon. [R. 20-19.] McFerrin had several follow-up visits with Dr. Chaney, each time complaining of continual back pain, and continuing to receive pain medication injections and narcotic pain medication. [R. 20-20; R. 20-21; R. 20-22.] In November, 2007, neurosurgeon Dr. James Bean attributes McFerrin's pain to his fall from the ladder in July of that year and notes that although he was being treated with high dose narcotics he was still not getting relief and still walking with a walker. [R. 20-24.] Doctor Bean diagnosed McFerrin as a " [l]eft scapular region thoracic pain syndrome, etiology unknown." [ Id. (emphasis added).] McFerrin states in his answers to interrogatories that at least one doctor had suggested exploratory surgery,

Page 928

but that he had refused to undergo such treatment. [R. 20-4 at 5.]

Within a few months after the accident at issue in this case, the other driver's insurance company settled McFerrin's claims for personal injuries up to the $25,000 policy limits. [R. 1-1 at 1, 7.] Thereafter, McFerrin alleged that the amount was insufficient and notified Allstate that he desired to claim against the underinsured motorist policy covering the truck McFerrin was driving when the accident occurred. [ Id. at 3.] A dispute about the dollar value of McFerrin's claim ensued, and McFerrin filed the instant suit, alleging bad faith on the part of Allstate in addition to his claims for damages and allegations concerning the policy coverage. [ Id. ] The case was initially filed in Leslie Circuit Court, and removed to this Court pursuant to its diversity jurisdiction under 28 U.S.C. § 1332.[3] The Court previously granted Allstate's motion to bifurcate the claims and stay McFerrin's bad faith claim, pending resolution of his underinsured motorist claim. [R. 6.] Now, Allstate moves the Court to grant summary judgment in its favor on McFerrin's damages claim for medical expenses, pain and suffering, and lost wages.



Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is improper, however, if genuine factual issues exist that " may reasonably be resolved in favor of either party," and therefore must be submitted to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In applying the summary judgment standard, the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001) (citing Liberty Lobby, 477 U.S. at 255).

The moving party has the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing " that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that a genuine issue exists. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002) (citing Celotex Corp., 477 U.S. at 324). Yet even when construing the evidence in the light most favorable to the non-moving party, the non-moving party still " must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the Federal Rules of Civil Procedure require the non-moving party to present " specific facts showing that there is a genuine issue for trial." Id. (citing Fed. R. Civ. P. 56(e)).

Page 929

While Kentucky's substantive law governs the issues involved in McFerrin's UIM and personal injury claim, federal procedural law governs the rules of practice concerning disclosure of witnesses and evidence. See Hayes v. Equitable Energy Resources, Co., 266 F.3d 560, 566 (6th Cir. 2001). In Kentucky, " the interpretation of insurance contracts is a matter of law for the Court" to decide, and is appropriately determined through summary judgment when there are no other factual issues in dispute. West Am. Ins. Co. v. Prewitt, 401 F.Supp.2d 781, 783 (E.D. Ky. 2005), aff'd, 208 F.App'x 393 (6th Cir. 2006).


Allstate primarily contends that McFerrin cannot establish his claims for personal injury damages in this case because such claims require the presentation of expert testimony, and McFerrin has not provided the required information to Allstate concerning any experts that he anticipates calling at trial. To analyze this claim, it is necessary to explain some of the discovery process that has occurred thus far. Allstate served McFerrin with its first set of interrogatories in April, 2013, which included a request for McFerrin to state whether he expected to call any expert witnesses at trial, medical or otherwise, and if so to state the expert's identity, and the subject matter and grounds for their testimony. [R. 20-25 at 2.] McFerrin responded to this question simply by stating " Will Supplement." [R. 20-4 at 2.] Allstate has since submitted written inquiries requesting more completed responses, but counsel for McFerrin never supplemented his answer to the Interrogatory No. 5 concerning expert witnesses, nor has he in any other way identified any medical experts or otherwise addressed his failure to do so other than to say that he would " probably just use a treating Doc as witness." [R. 20-28.] The deadlines in the Court's Scheduling Order specified that McFerrin had to disclose information concerning ...

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