From the desk of Kyle Riley: Personal Injury Protection (“PIP”) income continuation benefits may still be owed to an insured once the insured goes back full time to work with restrictions, or misses work to receive medical treatment related to a covered injury.
Claims Pointer: When an insured makes a claim for wage loss under their personal injury protection (“PIP”) benefits, the insurer has a contractual obligation to reimburse the insured for wage losses reasonably related to the accident. This may include reimbursement for wage loss that occurred after the insured was released to go back to work under restrictions if such restrictions impair the insured from performing his or her “usual” job tasks.
Ainsworth v. Progressive Cas. Ins. Co., 69433-2-I, 2014 WL 545764 (Wash. Ct. App. Feb. 10, 2014)
Plaintiff Ainsworth suffered neck and back injuries when an “18 wheeler” tractor trailer truck traveling 50 to 55 miles per hour rear-ended the car he was driving. Shortly after the accident, Ainsworth submitted a claim for income continuation (wage loss) benefits to defendant Progressive. Ainsworth claimed he lost income from his warehouse job and from his part-time evening pizza delivery job due to his accident-related bodily injuries. Progressive’s claim representative calculated the amount of wage loss benefits owed to Ainsworth but failed to include wages related to Ainsworth’s pizza delivery job. The claim representative also cut off Ainsworth’s wage loss benefits after his primary care physician released Ainsworth to resume full time work under certain restrictions, including hourly breaks and lifting limitations. Progressive denied Ainsworth’s additional request for wage loss while he was attending medical appointments related to the accident after returning to work. Ainsworth sued Progressive, alleging breach of contract, a violation of IFCA based on the failure to pay wage loss benefits due under the policy.
Ainsworth moved for summary judgment arguing it was undisputed that he lost wages due to accident-related bodily injuries. He asked the court to award unpaid benefits as contract-based damages, along with attorney fees and costs. He also asked the court to enhance his award under IFCA’s treble damages provision. Progressive argued that its duty to pay wage loss benefits for lost wages terminated as a matter of law when Ainsworth resumed restricted full-time employment and that no IFCA violation occurred because there was no proof on the record that it unreasonably denied Ainsworth’s claim for wage loss. The trial court granted Ainsworth’s summary judgment motion, awarded attorney fees, and doubled the amount of damages. Progressive appealed.
On appeal, Progressive contended that it properly paid wage loss benefits and stopped payments only when Ainsworth’s doctor released him to work full-time. Progressive’s position relied on policy language that states benefits end when the insured is “reasonably able to perform the duties of his or her usual occupation.” The Court rejected this argument, specifically pointing out Progressive’s failure to address the critical term “usual.” The Court noted that Progressive failed to adduce any material evidence that Ainsworth was able to perform his job tasks (lifting heavy boxes and delivering pizzas) in his “usual” course of work due to his accident-related injuries. The Court was also not persuaded by Progressive’s unsupported assertion that time loss from work to attend reasonably necessary medical appointments is not compensable under the policy. Because Ainsworth lost wages he would have received had it not been for the accident, in order to obtain reasonably necessary medical treatment, he is entitled to wage loss compensation under the plain reading of the policy.
Progressive further challenged the trial court’s awarding of attorney fees under an IFCA violation. Progressive argued that it did not violate IFCA because it reasonably denied Ainsworth’s wage loss claim according to policy terms and IFCA only applies to coverage, not to valuation disputes such as Ainsworth’s wage loss claims. The Court rejected these arguments noting that the record demonstrates that Progressive’s coverage and payment denial was unreasonable as a matter of law, specifically its failure to address the critical term “usual.” The Court reasoned that Progressive’s denial was a coverage dispute, not a valuation dispute, warranting an award of attorney fees. The ruling of the trial court was affirmed.
NOTE: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case.
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