United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT ZURICH AMERICAN INSURANCE
COMPANY'S MOTION  TO DISMISS, OR ALTERNATIVELY, MOTION
FOR SUMMARY JUDGMENT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  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  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  should be dismissed with prejudice.
Plaintiff's remaining claims will proceed.
Plaintiff's accident and injuries
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.  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.
asserts that she sustained severe injuries as a result of the
accident, which she characterizes as an occupational one.
See Am. Compl.  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.
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.
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  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.
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.
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).
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).
filed a Complaint  on June 20, 2018, followed by an
Amended Complaint  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 ...