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Kibbie v. Killington/Pico Ski Resort, Ltd.

United States District Court, D. Vermont

January 18, 2017

KILLINGTON/PICO SKI RESORT, LTD, d/b/a Killington/Pico LTD, and MEMIC SERVICES INC., Defendants.

          OPINION AND ORDER (DOC. 7)

          Geoffrey W. Crawford, Judge

         Plaintiff 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 .)[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.)

         MEMIC 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.


         The 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.

         On or 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.)[2]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.)[3]

         According 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. ¶ 53).

         The following additional facts relate to proceedings before the Vermont Department of Labor (DOL) and in Vermont state court.[4] 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.)

         Analyzing 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.)

         On 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.)


         I. Rule 12(b)(1) Standard

         "A 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.

         II. ...

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