United States District Court, D. Vermont
OPINION AND ORDER (DOC. 7)
Geoffrey W. Crawford, Judge
Thomas Kibbie brings this diversity action against his former
employer, Killington/Pico Ski Resort, Ltd
("Killington"), and against Killington's
workers' compensation insurance carrier, MEMIC Services
Inc. ("MEMIC"), arising out of an injury he
sustained in January 2008 while working as an
"Ambassador" at Killington. (See Doc. 1
Kibbie alleges that Defendants mishandled his workers'
compensation insurance claims related to that injury and
improperly denied benefits without justification.
(See Doc. 1 ¶ 59.) He seeks damages
"resulting from the bad faith conduct of
Defendants." (Id. ¶ 68.)
has filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and
12(b)(6), arguing that the court should decline to exercise
jurisdiction in light of a parallel state-court proceeding
against MEMIC, and further arguing that Kibbie's claims
are barred under the doctrines of economic loss, res
judicata, and collateral estoppel. (See Doc. 7 at
1-2.) Briefing is complete, and the court took MEMIC's
motion under advisement on December 5, 2016.
allegations in Kibbie's Complaint include the following.
On January 12, 2008, while working as an
"Ambassador" on the trails at Killington, Kibbie
sustained injuries in a fall. Kibbie does not recall much of
the injury, but he alleges that his head and neck struck the
hard snow, his helmet broke, and he broke seven teeth. He
also injured his right ankle and right arm. He received
medical treatment at hospitals and was diagnosed with a
traumatic brain injury (TBI) resulting from the fall. His
personality changed after the injury, and he has had constant
head and neck pain since that date, constant headaches,
difficulty multi-tasking, loss of his sense of taste and
smell, and difficulty with balance and with his vision.
about September 2, 2010, on the advice of prior counsel,
Kibbie entered into a Modified Form 15 settlement agreement
with Killington and MEMIC. (Doc. 1 ¶ 45; Doc.
l-l.)Under that agreement, Kibbie accepted a
payment of $50, 000 in "full and final settlement"
of "[a]ll claims occur[r]ing as a result of the work
incident including but not limited to right ankle, head/TBI
and right elbow/biceps." (Doc. 1-1 at 1.) The agreement
further stated, however, that MEMIC "will continue to
furnish all related future medical treatment pursuant to the
Rules necessary for treatment of his cognitive or other head
injury, including neurological, psychological,
ophthalmological, TBI care and treatment, and prior care for
his covered injuries." (Id.)
to Kibbie, Defendants "failed to live up to their end of
the settlement agreement." (Doc. 1 ¶ 47.) He
asserts that prescription coverage for medications directly
related to the TBI injuries were not covered, that physical
therapy (PT) was stopped due to non-payment of services
between November and December 2010, and that dental work for
teeth which was previously covered was not paid for.
(Id.; see also Id. ¶¶ 27, 42, 44.) He also
alleges that Defendants denied coverage for a home
cervical-traction device (id. ¶ 38), and denied
treatment for two years for eye care (id. ¶
following additional facts relate to proceedings before the
Vermont Department of Labor (DOL) and in Vermont state
court. Kibbie commenced a proceeding with the DOL
in 2012 seeking, among other things, medical benefits under
21 V.S.A. § 640. (See Doc. 7-1.) On February
23, 2016, DOL Commissioner Anne M. Noonan issued an Opinion
and Order addressing the following two issues: (1) "Is
ongoing treatment for Claimant's neck pain within the
terms of the medical benefits foreclosed by the parties'
Modified Form 15 Settlement Agreement?"; and (2)
"To what other medical benefits is Claimant
entitled?" (Id. at 1.)
the terms of the Modified Form 15 settlement agreement, the
Commissioner concluded that the agreement required Killington
to cover treatment for Kibbie's cognitive and head
injury, but "does not obligate [Killington] to provide
ongoing medical coverage for Claimant's neck
injury." (Id. at 15, ¶ 17.) The
Commissioner accordingly denied Kibbie's claim for
medical benefits covering services for treating the neck
injury, including PT in November and December 2010, and
treatment of Kibbie's cervical condition. (Id.
at 19.) But the Commissioner ordered Killington to pay
medical benefits for prescription medications to control
symptoms "causally related to Claimant's cognitive
or other head injury, " including dental treatment
necessary to repair accident-related damage to tooth numbers
7, 8, 9, 10, and 30 (the teeth being part of the head), and
ongoing treatment for visual deficits (based on a finding
that Kibbie's visual deficits are causally related to his
head injury). (Id. at 20.)
March 16, 2016, pursuant to 21 V.S.A. § 670, Kibbie
appealed the Commissioner's decision to the Vermont
Superior Court. (See Doc. 7-2.) That appeal-docketed
as Kibbie v. Killington, Ltd, No. 138-3-16 Rdcv-is
currently pending, and a discovery schedule has been set.
(See Id. at 3.) Kibbie filed his Complaint in this
court on September 14, 2016. (Doc. 1.)
Rule 12(b)(1) Standard
district court properly dismisses an action under
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
if the court 'lacks the statutory or constitutional power
to adjudicate it . . . . '" Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d
411, 417(2d Cir. 2015) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)). On a Rule
12(b)(1) motion, the court accepts as true '"all
material allegations of the complaint and ... construe[s]
the complaint in favor of the complaining party.'"
Id. (first brackets in original) (quoting W.R.
Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549
F.3d 100, 106 (2d Cir. 2008)). "In deciding a Rule
12(b)(1) motion, the court may also rely on evidence outside
the complaint." Id.