United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
This matter is before the Court upon Defendant State Farm Mutual Insurance Company's Motion for Partial Summary Judgment [Docket No. 19] and Plaintiff Daniel Risner's Motion for Partial Summary Judgment [Docket No. 23]. The motions have been fully briefed by the parties [Docket Nos. 22, 25 and 26]. For the reasons set forth below, the Court sustains Defendant's motion and overrules that of Plaintiff.
On September 21, 2012, Plaintiff Daniel Risner was involved in a rear-end car accident at the intersection of Man O' War Boulevard and Pleasant Ridge Drive in Lexington, Kentucky. The Lexington Police Department investigated the accident. Plaintiff claimed to experience "slight pain to his neck and back." He declined the investigating officer's offer for an ambulance.[Kentucky Uniform Police Traffic Collision Report, Docket No. [9-3]
On the day of the accident, Plaintiff went to Advanced Chiropractic Care in Morehead, Kentucky with complaints of headaches and pain in his neck, mid and low back, and shoulders. He was seen by Timothy W. O'Brien, DC, who noted that Plaintiff had headaches and a sprain/strain to his back and neck. [Docket No. 19-5]. It was recommended that Plaintiff treat two times per week for six weeks. Id.
At the time of the accident, Plaintiff had PIP coverage with Defendant State Farm Mutual Automobile Insurance Company ("State Farm"). Shortly following the accident, he submitted an Application for Benefits to State Farm seeking no-fault benefits. Plaintiff claimed that Advanced Chiropractic Care was treating him for "neck, shoulders, and back pain and soreness, [and) some numbness in hands, " all of which he related to the September 21, 2012 accident. [Application for Benefits, Docket No. 8-3].
Mr. O'Brien re-examined Plaintiff on November 16, 2012 and again on January 18, 2013, and recommended that he continue chiropractic treatment.
In the spring of 2013, about six months following the accident, State Farm contacted Advanced Chiropractic Care, in writing, to ascertain Plaintiffs prognosis, plan of care, and projected maximum medical improvement date. On March 18, 2013, Mr. O'Brien responded to State Farm's inquiry and projected Plaintiffs release date as March 22, 2013. [Docket No. 19-8]. However, six days later, on March 29, 2013, O'Brien wrote to State Farm to change his opinion; he recommended Plaintiff treat twice a week for another six weeks. [Docket 19-9].
In May 2013, State Farm retained a third-party to coordinate an independent chiropractic review of Plaintiffs medical records to determine whether the prolonged chiropractic care was reasonable, medically necessary, and related to the September 21, 2012 accident. Dr. Andrew Slavik, D.C. was retained to review Plaintiffs treatment records, and other documents relevant to his claim, and provide a medical opinion as to whether Plaintiffs treatment was reasonable, medically necessary, and related to the September 21, 2012 accident.
Dr. Slavik provided his report to State Farm on May 22, 2013 [Docket No. 19-10]. Dr. Slavik opined that Plaintiffs treatment was reasonable and medically necessary with the exception of seven of Advanced Chiropractic Care's coding entries. Dr. Slavik also opined that Advanced Chiropractic Care's treatment was not medically necessary after March 18, 2013. [Utilization Review, Docket No. 8-4]. Therefore, based in part on Dr. Slavik's medical opinions, State Farm denied Plaintiffs claims for treatment with Advanced Chiropractic Care after March 18, 2013.
On September 24, 2013, State Farm received a letter of representation from Plaintiffs lawyer as well a letter from Advanced Chiropractic Care, seeking an appeal State Farm's decision to deny additional payment to Advanced Chiropractic Care based on Dr. Slavik's report. [Docket No. 19-10]. Advanced Chiropractic Care did not enclose any additional information for State Farm to consider on appeal.
On October 8, 2013, State Farm wrote to Advanced Chiropractic Care, inviting it to submit additional information regarding Plaintiffs claim. Advanced Chiropractic Care elected did not provide anything further.
Plaintiff instigated this civil action against State Farm in the Rowan Circuit Court, alleging that he was wrongfully denied basic reparation benefits. In his Complaint, he plead the following causes of action: negligence (Count I), violation of KRS 304.39, et seq., (Count II), negligence per se (Count Ill), breach of contract (Count IV), breach of good faith and fair dealing(Count V), violation of the Kentucky Consume Protection Act (Count VI), bad faith (Count VII), unjust enrichment (Count VIII), fraud (Count IX), negligent misrepresentation (Count X), prejudgment interest (Count XI) and punitive damages (Count XII).
Defendant removed this action from the Rowan Circuit Court to this Court based upon diversity jurisdiction [Docket No. 1]. ...