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Witte v. Zurich American Insurance Co.

United States District Court, S.D. Mississippi, Southern Division

March 1, 2019

TINA WITTE PLAINTIFF
v.
ZURICH AMERICAN INSURANCE COMPANY and JOHN CHRISTNER TRUCKING, LLC DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT ZURICH AMERICAN INSURANCE COMPANY'S MOTION [6] TO DISMISS, OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Motion [6] to Dismiss, or Alternatively, Motion for Summary Judgment filed by Defendant Zurich American Insurance Company. After due consideration of the Motion, related pleadings, the record, and relevant legal authority, the Court finds that Defendant Zurich American Insurance Company's Motion [6] to Dismiss should be granted in part and denied in part, and Plaintiff Tina Witte's claim against Defendant Zurich American Insurance Company for injunctive relief contained in Count I of the Amended Complaint [4] should be dismissed with prejudice. Plaintiff's remaining claims will proceed.

         I. BACKGROUND

         A. Factual background

         1. Plaintiff's accident and injuries

         This case arises out of an 18-wheeler tractor trailer rollover which occurred in Picayune, Mississippi, on June 23, 2016, while Plaintiff Tina Witte (“Plaintiff” or “Witte”) was a passenger in the truck's sleeper car. See Am. Compl. [4] at 2. Plaintiff worked as a truck driver and maintained an occupational accident insurance policy (the “Policy”) with Defendant Zurich American Insurance Company (“Zurich”). See Id. at 3; see also Policy [4-2] at 1-21. The Policy offered various benefits, including coverage for Accident Medical Expense, for Temporary Total Disability, and for Continuous Total Disability. See Policy [4-2] at 4.

         Plaintiff asserts that she sustained severe injuries as a result of the accident, which she characterizes as an occupational one. See Am. Compl. [4] at 3. Accordingly, she made a claim under the Policy, and Zurich has allegedly conceded that her claim should be paid as an occupational accident claim. Id. However, Zurich has taken the position that under the terms of the Policy, all medical treatment ceases after two years from the date of the accident, regardless of the circumstances. Id.

         The Amended Complaint alleges that, at Zurich's request, Plaintiff underwent a medical examination performed by Dr. P. Caudill Miller, who opined that Plaintiff “has very significant impairment from her injuries, those injuries were disabling, and the injuries were directly and solely caused by the June 23, 2016 accident.” Id. “Dr. Miller further opined that Plaintiff undergo a vertebroplasty, a surgical procedure where bone cement is injected into the vertebrae to stabilize the spine.” Id. at 4. Plaintiff's treating physician also recommended that she undergo the vertebroplasty, but Zurich informed her that if the surgery was not performed within 104 weeks of the date of the accident, or prior to June 21, 2018, it would not be covered. Id. Plaintiff maintains that this 104-week time limit for receiving medical benefits has interfered with her medical treatment and that this provision of the Policy should be invalidated as inconsistent with Mississippi Code § 71-3-5. Id. at 4-6.

         Plaintiff also claims that although the Policy allows for 104 weeks of Temporary Total Disability benefits, Zurich has only paid her for 36 weeks of such benefits, even though she was entitled to them beginning on June 23, 2016, and continuing until the day her Amended Complaint [4] was filed on June 21, 2018. Id. Finally, Plaintiff contends that Zurich has improperly denied her requests for Continuous Total Disability benefits under the Policy. Id. at 5.

         2. The Policy

         The Policy's effective date was January 1, 2015, for a continuous period of time until terminated. See Policy [4-2] at 3. The particular benefits at issue here are those for Accident Medical Expense, for Temporary Total Disability, and for Continuous Total Disability. See Id. at 4.

         The Policy provides for a Maximum Benefit Period of 104 weeks for Accident Medical Expense and Temporary Total Disability, while the Maximum Benefit Period for Continuous Total Disability is “[u]p to age 70, but not beyond full Social Security retirement age.” Policy [4-2] at 4. The Policy defines “Maximum Benefit Period” as “the maximum period that [Zurich] will pay benefits, after the Waiting Period, under the Temporary Total Disability Benefit, the Continuous Total Disability Benefit or the Accident Medical Expense Benefit.” Id. at 6 (emphasis removed).

         The Policy contains the following provision addressing conformity with state law:

Any provision of the Policy that, on its effective date, is in conflict with the statutes of the state in which the Policy was delivered, is hereby amended to conform to the minimum requirements of such state laws.

Id. at 20 (emphasis removed).

         B. Procedural history

         Plaintiff filed a Complaint [1] on June 20, 2018, followed by an Amended Complaint [4] on June 21, 2018, naming Zurich and her employer, John Christner Trucking, LLC, as Defendants, and invoking the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. The Amended Complaint advances the following claims against Defendants: (1) injunctive relief to invalidate the Policy's two-year limitation on medical treatment; (2) breach of contract; (3) intentional infliction of emotional distress; (4) breach of the implied duty of ...


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