Opinion
C.A. No. 05C-07-208 RRC.
Submitted: April 16, 2007.
Decided: May 7, 2007.
On Plaintiff's Motion in Limine.
DENIED.
Francis J. Jones, Jr., Esquire, Morris James, LLP, Wilmington, Delaware.
Colin M. Shalk, Esquire Casarino, Christman Shalk, Wilmington, Delaware.
Dear Counsel:
Before the Court is Plaintiff's motion in limine to restrict the testimony of Defendant's medical expert, Dr. William T. Cowan.
Plaintiff was injured in an automobile accident on July 26, 2003. Defendant, Plaintiff's PIP insurer, had Plaintiff examined by Dr. Cowan on February 10, 2004. After reviewing Plaintiff's medical records from August 19, 2003 to February 4, 2004, listening to Plaintiff's subjective complaints, and performing a physical examination, Dr. Cowan concluded in his report, dated February 13, 2004, that any further chiropractic treatment "as it relates to the motor vehicle accident in question would not be reasonable, related, or medically necessary." Therefore, on March 15, 2004 Defendant discontinued no-fault benefits afforded to Plaintiff under her PIP policy. Plaintiff subsequently brought this action against Defendant for its alleged wrongful refusal to pay benefits.
Pl. Mot. in Limine, at Ex. A.
On October 17, 2006, before Dr. Cowan's deposition, Defendant provided him with Plaintiff's medical records dated from 1993-1997 and from February 10, 2004 forward. Dr. Cowan had not previously reviewed those additional records in connection with his February 2004 report. During his deposition Defendant questioned him about those records, and his responses, in essence, provided further support for his February 2004 opinion that further chiropractic treatment by Plaintiff "would not be reasonable, related or medically necessary."
Plaintiff contends that Defendant should not be able to enter into evidence Dr. Cowan's deposition testimony concerning the review of those records because Dr. Cowan did not have those records at the time he examined Plaintiff or when he wrote his February 2004 report. Specifically, Plaintiff requests that the Court strike the following portions of Dr. Cowan's deposition, where he states his opinion as to the significance of those prior records: from line 21 on page 25 to line 19 on page 27; and from line 4 on page 28 to line 12 on page 30.
Pursuant to 21 Del. C. § 2118B(c), an insurer, within 30 days of receiving a written request for payment of PIP benefits, must pay the claim or deny it with an accompanying written explanation. In Spine Care Delaware v. State Farm (the sole case relied upon by Plaintiff in support of her motion) the Court held that a PIP carrier is precluded from "shifting its position on defense of a denial after the 30 days expires." In that case, the defendant insurer failed to respond to some claims within the 30 day period and denied some claims based on the medical facility's lack of a license. Thereafter, during the course of litigation, the insurer attempted to allege that the claimed fees were not reasonable or necessary medical expenses. The Court found that the defendant was precluded from offering a defense to coverage during the course of the litigation.
2007 WL 495899, at *3 (Del.Super.).
Id. at *1.
Id. at *2.
However, unlike the insurer in Spine Care, Defendant here has not "shifted its position." Rather, Defendant has maintained the same legal position that it took when it denied Plaintiff's claim on March 15, 2004.
While there is apparently no Delaware case directly on point, the New York Supreme Court, Appellate Division, applying a PIP statute similar to Delaware's, has held that an insurance company may rely on additional facts, not set forth in its first notice of disclaimer, where those additional facts are supportive of the first disclaimer and do not advance a new ground upon which coverage is denied.
See N.Y. Ins. Law § 5106. See also Guberman v. William Penn Life Ins. Co. of New York, 538 N.Y.S.2d 571 (N.Y.App.Div. 1989) ("[I]n New York, as well as most other States, the general rule is that an insurer which denies liability on a specified ground may not thereafter shift the basis for its disclaimer to another ground known to it at the time of its original repudiation").
Abreu v. Huang, 751 N.Y.S.2d 583 (N.Y.App.Div. 2002) (stating that although an insurer's justification for denying coverage is limited to the grounds stated in the notice of disclaimer, the defendant insurer was "not limited to disclaiming coverage based on the facts contained in its first notice of disclaimer"). Although Plaintiff does not specifically raise the doctrines of waiver or estoppel, such an argument would also fail. See 14 Lee R. Russ Thomas F. Segalla, Couch on Insurance § 198:55 (3d. 1999) ("For either waiver or estoppel to apply, of course, the later asserted ground for avoiding liability must, in fact, be different than the grounds asserted earlier").
Likewise, this Court finds that Dr. Cowan's testimony on the previously unprovided medical records, which supports his earlier opinion that further chiropractic treatment would not be reasonable, related or necessary, is admissible. Therefore, Plaintiff's motion in limine is DENIED.
IT IS SO ORDERED.