Durant v. State Farm Mut. Auto. Ins. Co. , 419 P.3d 400 ( 2018 )

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This opinion was filed for record
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE UNITED
STATES DISTRICT COURT FOR THE No. 94771-6
WESTERN DISTRICT OF WASHINGTON
IN
BRETT DURANT,on behalf of himself and
all others similarly situated,
Plaintiff,
En Banc
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,a foreign
automobile insuranee company.
Defendant. Filed JUN 0 7 2018
J
MADSEN, J.—This case concerns a class action insurance claim suit pending in
federal court. The federal district court has asked this court to answer two certified
questions concerning whether an insurer's use of a "maximum medical improvement"
(MMI)provision violates WAC 284-30-395(1).
No. 94771-6
FACTS
This case began with an auto poliey claim by plaintiff Brett Durant. Durant has
been a polieyholder with State Farm Mutual Automobile Insurance Company since 1995
and carried $35,000 in personal injury protection (PIP) coverage. On July 21, 2012,
Durant was injured in a motor vehiele accident. He opened a PIP claim with State Farm.
State Farm then sent him a "coverage letter" that stated:
The policy provides coverage for reasonable and neeessary medical
expenses that are ineurred within three(3) years of the aecident. Medical
services must also be essential in achieving maximum medical improvement
for the injury you sustained in the accident.
Docket(Dkt.)#30(Decl. of Brett Durant) at 2 & Ex. C (emphasis added).'
Durant sought treatment with chiropractor Harold Rasmussen, DC, who diagnosed
injuries including sprains to the neck, back, pelvis, and right shoulder. After a shoulder
MRI(magnetic resonance imaging)showed a ligament sprain and "a possible small type
I SLAP [(superior labral anteroposterior)] tear," Durant was referred to an orthopedic
surgeon who diagnosed "mild bursitis/tendinitis," which was treated with physical
therapy and cortisone injections. Id. at 2.
Four months after the accident. State Farm sent Dr. Rasmussen a form letter with
blanks to fill in inquiring about Durant's progress. The letter was directed toward State
Farm's MMI standard, asking,"Has the patient reached maximum medical
improvement?" and "If the patient has not reached maximum medical improvement, what
'Citations are to the certified record as provided by the federal district court unless otherwise
noted. See RCW 2.60.010(4),.030(2).
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is your target maximum medical improvement date?" Id. at 2 & Ex. D. Dr. Rasmussen
responded that Durant was not at MMI but his target date was "2-1-13." Id. at Ex. D.
Durant's injuries were not resolved by that date, and he continued to receive
chiropractic and massage therapy. State Farm then sent another.letter to Dr. Rasmussen,
which inquired,"You have treated Brett past his given MM[I] date of 2/1/2013. Please
explain." Dkt. #32(Deel. of Tyler Firkins), Ex. Q at 11 of 13. Dr. Rasmussen replied,
"Patient was not stable and needed treatment to 3/27/2013." Id.
Durant continued to have back, shoulder, and pelvic issues and continued to
receive care. His care providers billed his PIP claim as before, but State Farm denied
each bill on the basis that, "[sjervices are not covered, as your provider advised us you
previously reached maximum medical improvement." Dkt. #30, Ex. F.
Durant retained an attorney who wrote to State Farm asking them to pay the
outstanding medical bills. The attorney explained that State Farm must use the standard
authorized by WAC 284-30-395(1); that whether Durant had reached MMI was
irrelevant; and that unless State Farm had a competent medical opinion that Durant's
treatment was not reasonable, necessary, or related. State Farm must pay the bills.
The attorney provided State Farm a letter from Dr. Rasmussen explaining that
Durant's continuing injuries meant that he would require periodic care for his spinal and
pelvic dysfunction and that during periods of exacerbation, Durant should receive
treatment to restore movement and to reduce his pain. The State Farm claim
representative ignored Dr. Rasmussen's opinion and authored a letter that reiterated the
previous denial, noted that Durant had previously reached MMI,and stated that the
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Office of the Insurance Commissioner(QIC)"thoroughly reviews and approves policy
language proposed by insurance companies." Dkt. #30, Ex. H. Durant's attorney
responded by letter that Durant needed medical treatment from time to time due to
exacerbations in order to maintain his recovery and that this treatment should be
considered reasonable, necessary, and related under WAG 284-30-395(1). By that time,
Durant had unpaid medical bills of more than $1,000 that had been denied by State Farm,
but State Farm stood by its decision and continued to deny payment based on its MMI
standard.
Durant filed this action in King County Superior Court in 2015, alleging that State
Farm's use of the MMI standard violates its duty of good faith, breaches the insurance
contract, violates the Insurance Fair Conduct Act, RCW 48.30.0 lO-.015, and violates the
Consumer Protection Act, chapter 19.86 RCW. State Farm removed the case to federal
court. The United States District Court granted Durant's motion to certify a class of
plaintiffs. State Farm moved for reconsideration. In denying the motion for
reconsideration, the district court also granted Durant's motion to certify the following
two questions to this court:
1. Does an insurer violate WAC 284-30-395(l)(a) or(b)if that insurer denies,
limits, or terminates an insured's medical or hospital benefits claim based on a finding of
"maximum medical improvement?"
No. 94771-6
2. Is the term "maximum medical improvement" consistent with the definition of
"reasonable" or "necessary" as those terms appear in WAC 284-30-395(1)?^
ANALYSIS
First Certified Question: Does State Farm's limitation of medical claims based on
its MMI provision violate WAC 284-30-395(l)(a) or (b)?
Durant contends that the plain language of the regulation in question answers the
first certified question. We agree.
"Certified questions from federal court are questions of law that this court reviews
de novo." Brady v. Autozone Stores, Inc., 188 Wash. 2d 576, 580, 397 P.3d 120(2017)
(citing Carlsen v. Glob. Client Sols., LLC, 171 Wash. 2d 486, 493, 256 P.3d 321 (2011)).
"This court may reformulate the certified question." Id. {citing Allen v. Dameron, 187
Wash. 2d 692, 701, 389 P.3d 487 (2017)). Further, the meaning of a statute is a question of
law that is reviewed de novo. State v. J.M., 144 Wash. 2d 472, 480, 28 P.3d 720(2001).
This court's fundamental objective in determining what a statute means is to ascertain
and carry out the legislature's intent. Id. If the statute's meaning is plain on its face, then
courts must give effect to its plain meaning as an expression of what the legislature
intended. Id. A statute that is clear on its face is not subject to judicial construction. Id.
This court interprets regulations under the rules of statutory construction. Mader
V. Health Care Auth., 149 Wash. 2d 458, 472, 70 P.3d 931 (2003). It construes the act as a
whole, giving effect to all of the language used. Id. If a regulation is unambiguous.
^ Order at 4(July 10, 2017)(granting certified question).
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No. 94771-6
intent can be determined from the language alone, and the court will not look beyond the
plain meaning of the words of the regulation. Id. at 473.
We begin with the plain language of the regulation. WAC 284-30-395(1) provides
in relevant part:
(1) Within a reasonable time after receipt of actual notice of an
insured's intent to file a personal injury protection medical and hospital
benefits claim, and in every case prior to denying, limiting, or terminating
an insured's medical and hospital benefits, an insurer shall provide an
insured with a written explanation ofthe coverage provided by the policy,
including a notice that the insurer may deny, limit, or terminate benefits if
the insurer determines that the medical and hospital services:
(a) Are not reasonable;
(b) Are not necessary;
(e) Are not related to the accident; or
(d) Are not incurred within three years of the automobile accident.
These are the only groundsfor denial, limitation, or termination of
medical and hospital services permitted pursuant to RCW 48.22.005(7),
48.22.095, or 48.22.100.
(Emphasis added.) The final sentence of this regulation is unambiguous: an insurer may
deny PIP benefits "only" for the reasons listed; no other reasons are permitted.
State Farm argues that its MMI language is merely definitional, explaining the
"necessary" provision contained in the regulation. That is unconvincing. First, State
Farm's policy language and its coverage letter present the MMI provision as an
additional criterion that must be met for medical payments. The auto policy provides in
relevant part as follows:
PersonalInjury Protection Benefits mean accident related:
I. Medical and Hospital Benefits, which are payments for reasonable
medical expenses incurred within three years ofthe date of the accident.
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Reasonable Medical Expenses mean expenses:
2. incurred for necessary:
a. medical, surgical, X-ray, dental, ambulance, hospital, and
professional nursing services, and
b. pharmaceuticals, eyeglasses, hearing aids, and prosthetic devices
that are rendered by or prescribed by a licensed medical provider within the
legally authorized scope of the provider's practice and are essential in
achieving maximum medical improvementfor the bodily injury sustained in
the accident.
Dkt #32, Ex. N at 7 of 24(some emphasis added).
As presented,"Reasonable MedicalExpenses^' are defined as fees "incurred for
necessary" medical services that are rendered by a medical provider "and are essential in
achieving maximum medical improvement for the bodily injury sustained in the
accident." Id.(some emphasis added). Because the MMI provision is stated
conjunctively, it is not a definition of"necessary" but is instead a separate and additional
prerequisite under the policy for payment of medical expenses. Moreover, the policy's
introductory provisions explain that "[djefined words and phrases [contained in the
policy] are printed in boldface italics." Id. at 4 of 24. In the "reasonable medical
expenses" quoted passage,"necessary" is not so designated. Thus, the plain language of
the auto insurance policy does not support State Farm's assertion that its MMI provision
defines the term "necessary."
Further, the coverage letter that Durant received states, in relevant part, as follows:
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MEDICAL AND HOSPITAL BENEFITS
The policy provides coveragefor reasonable and necessary medical
expenses that are incurred within three (3) years ofthe accident. Medical
services must also be essential in achieving maximum medical improvement
for the injury you sustained in the accident. To assist us in determining
what expenses are reasonable and necessary, we may obtain a second
opinion from a medical provider. We may also have the treatment
reviewed by other medical professionals.
Occasionally there are situations where treatment may not be considered
reasonable, necessary, or related to the accident. Similarly, there may be
cases where the services are not essential in achieving maximum medical
improvementfor the injury sustained in the accident. In such cases, YOUR
PIP COVERAGE MAY NOT PAY FOR ALL OF YOUR EXPENSES.
Dkt. #30, Ex. C.(emphasis added).
As can be seen, the first sentence in the first paragraph identifies three criteria for
receiving medical payments: the medical services must be reasonable, necessary, and
within three years ofthe accident. The second sentence adds a fourth criterion: the
medical services ''must also be essential in achieving maximum medical improvement for
the injury you sustained in the accident." Id.(emphasis added). As presented, the fourth
criterion is an additional requirement and does not refer back to or define any of the
earlier listed criteria.
The second paragraph in the above quoted coverage letter warns that where the
listed criteria are not met, the insured's PIP coverage may not pay for the expenses.
Again, the four criteria are separately noted, indicating their separate status as a basis for
denying coverage. Neither the policy language nor the coverage letter indicates that the
MMI provision is a definition of"necessary" as State Farm contends.
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In addition, as Durant's circumstance demonstrates, State Farm is using the MMI
standard contained in its auto policy as the primary criterion for limiting the
responsibility it would otherwise have to pay medical claims under the regulation; and it
is doing so by applying a criterion not listed in the regulation. As noted, the regulation's
plain language does not permit such additions. "No insurance contract can contain an
inconsistent or contradictory term to any mandated, standard provision unless it is more
favorable to the insured." Kroeber v. GEICO Ins. Co., 184 Wash. 2d 925, 929-30, 366 P.3d
1237(2016)(citing RCW 48.18.130(2)); 5'ee also Liberty Mut. Ins. Co. v. Tripp, 144
Wash. 2d 1, 12, 25 P.3d 997(2001)(insurers cannot diminish statutorily mandated coverage
through language in the insurance policy); Britton v. Safeco Ins. Co. ofAm., 104 Wash. 2d
518, 531, 707 P.2d 125 (1985)(where legislature has mandated a certain amount and
kind of coverage, insurer cannot avoid that obligation by a policy clause which has not
been authorized by the legislature); Kyrkos v. State Farm Mut. Auto. Ins. Co., 121 Wash. 2d
669, 672, 852 P.2d 1078(1993)(exclusions that deny statutory mandated coverage are
void).
Also, since the regulation's terms "reasonable" and "necessary" are not defined,
we use their ordinary (dictionary) meaning. See Boeing Co. v. Aetna Cas. & Sur. Co.,
113 Wash. 2d 869, 877, 784 P.2d 507(1990)(undefined terms in insurance contracts
"must" be given their plain, ordinary, and popular meaning, and courts may look to
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standard English language dictionaries to determine common meaning).^ State Farm's
MMI standard is clearly more restrictive than what would ordinarily be considered
reasonable and necessary medical care. As Durant's case demonstrates, treatment
prescribed by his provider to address his ongoing pain resulting from the car accident
would be permissible under the plain language of the regulation, which permits such
reasonable and necessary treatment. Only State Farm's employment of the more
restrictive MMI standard disallows such treatments and does so in violation ofthe
regulation.''
Finally, State Farm throughout its response brief relies on the assertion that its
auto policy containing the MMI provision has been repeatedly approved by the OIC,^
^ The common meaning of"reasonable" is "not eonflieting with reason : not absurd : not
ridiculous . . . being or remaining within the bounds of reason:not extreme : not excessive."
Webster's Third New International Dictionary 1892(2002).
The common meaning of"necessary" is "of, relating to, or having the character of
something that is logically required or logically inevitable or that cannot be denied without
involving contradiction." Id. at 1510.
While not directly applicable to the present auto insurance policy context, WAC 182-500-0070,
which applies in the medical assistance context, demonstrates that a reasonable view of what
constitutes medically necessary care is far broader than State Farm's restrictive MMI standard.
The noted WAC defines the term "medically necessary" in the medical assistance context as
a term for describing requested service which is reasonably calculated to prevent,
diagnose, correct, cure, alleviate or prevent worsening ofconditions in the client
that endanger life, or cause suffering or pain, or result in an illness or infirmity,
or threaten to cause or aggravate a handicap, or cause physical deformity or
malfunction. There is no other equally effective, more conservative or
substantially less costly course oftreatment available or suitable for the client
requesting the service.
WAC 182-500-0070 (emphasis added).
^ Any past approval by the OIC of State Farm's policy form is not dispositive on the issue of
State Farm's compliance with WAC 284-30-395 in any event. RCW 48.18.510 provides that
"[a]ny insurance policy . . . hereafter issued and otherwise valid, which contains any condition or
provision not in compliance with the requirements of this code, shall not be rendered invalid
thereby, but shall be construed and applied in accordance with such conditions and provisions as
would have applied had such policy ... been in full compliance with this code."
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No. 94771-6
urging that the court should defer to the QIC's expertise on the issue. This court indeed
gives substantial weight to an administrative agency's interpretations in its area of
expertise, see Port ofSeattle v. Pollution Control Hr'gs Bd, 151 Wash. 2d 568, 595,90
P.3d 659(2004)(due deference must be given to the specialized knowledge and expertise
of an administrative agency), but the view expressed by the QIC is at odds with State
Farm's assertions.
The QIC has filed an amicus brief forcefully stating that it has told carriers,
including State Farm, that provisions adding criteria to PIP benefit payments violate
WAG 284-30-395(1). The QIC amicus brief states,"The plain language of WAG 284-
30-395 clearly prohibits the use of'maximum medical improvement' as an additional
grounds for the denial, limitation, or termination ofPIP benefits aside from those listed in
WAG 284-30-395(1)." Amicus Guriae Br.(GIG Br.) at 9. Relying on the language of
the underlying statute, RGW 48.22.005(7), which provides that "'[mjedical and hospital
benefits' means payments for all reasonable and necessary expenses incurred by or on
behalf of the insured for injuries sustained as a result of an automobile accident," the GIG
explains,"Nowhere does the statute exclude palliative care, or care to maintain a stable
condition, rather than to improve a person's condition. Rather, the Legislature chose the
phrase 'all reasonable and necessary' as the parameters for determining care that must be
covered." GIG Br. at 10. Accordingly,
A carrier cannot enforce a policy that denies medical and hospital services
that are reasonable, necessary, related to the accident, and incurred within
three years of the accident, but that do not achieve 'maximum medical
improvement.[']
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No. 94771-6
This interpretation of WAC 284-30-395 has been clearly
communicated by the Commissioner, through his staff, to American Family
Insurance in 2010, and again to State Farm in 2015, when taking exception
to the language in their policies. In both instances, the Commissioner has
directed carriers with non-compliant policy forms to submit new policy
forms, with language that reflects the limited grounds available for the
denial, limitation, or termination of medical and hospital benefits found in
WAC 284-30-395(1). At no point has the Commissioner, or his staff,
communicated a contrary interpretation of WAC 284-30-395(1). Based on
the plain language of WAC 284-30-395(1), no carrier can use additional
requirements, including "maximum medical improvement" as a basis for
denying, limiting, or terminating medical and hospital coverage under PIP.
M at 11-12(emphasis added). The OIC amicus brief concluded that the answer to the
first certified question is yes. Mat 12. For the reasons discussed above, we agree.
Second Certified Question: Is the term "maximum medical improvement"
consistent with the definition of"reasonable" or "necessary" as those terms appear in
WAC 284-30-395(1)?
We answer this certified question no. Washington statutes mandate that insurers
writing automobile insurance offer PIP coverage, which includes coverage for payment
of"all reasonable and necessary expenses incurred ... for injuries sustained as a result of
an automobile accident." RCW 48.22.005(7)(emphasis added); see also RCW 48.22.085
(requiring PIP coverage be offered),.095 (setting required minimum PIP coverage
amounts),.100 (setting PIP benefit limits). The statutory requirement to offer PIP
coverage implicates public policy. See Sherry v. Fin. Indem. Co., 160 Wn.2d 611,620-
21, 160 P.3d 31 (2007). As discussed above, WAC 284-30-395(1) provides that the only
permissible bases for denying PIP medical expense payments are if treatment is not
reasonable, not necessary, not related to the accident, or not incurred within three years of
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No. 94771-6
the accident. This regulation and the noted statutes reflect Washington's strong public
policy in favor of the full compensation of medical benefits for victims of road accidents.
By contrast, State Farm's policy language limits payment ofPIP medical benefits
to services "essential in achieving maximum medical improvement." Dkt. #32, Ex. N at
7 of 24. This limitation denies Durant his PIP medical benefits necessary to return him to
his pre-injury state. Excluding payment for palliative care from the reasonable and
necessary medical expenses that are required to be paid under PIP coverage violates the
public policy reflected in the statutory and regulatory scheme underlying PIP coverage,
which is to fully compensate insureds for their actual damages from automobile
accidents. See Sherry, 160 Wash. 2d at 620-21 ("Washington State has long favored full
compensation for those injured in automobile accidents."). State Farm's MMI provision
is not consistent with the terms "reasonable" and "necessary" as those terms are used in
RCW 284-30-395(1).
Defendant State Farm does not convincingly argue otherwise. It analogizes its
MMI provision to the industrial insurance context and to maritime law, which are both
distinguishable. State Farm cites a WAC regulation promulgated under Title 51 RCW,
the Industrial Insurance Act(IIA), defining "proper and necessary" health care services,
that states,"Once a worker's condition has reached maximum medical improvement,
treatment that results only in temporary or transient changes is not proper and necessary."
WAC 296-20-01002 "Proper and necessary" subsection (3). State Farm suggests that this
regulatory limitation of payment for health care services by the Department of Labor and
Industries supports its argument that medical services, after an insured reaches maximum
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No. 94771-6
medical improvement, are not "necessary" services under its PIP policy or WAC 284-30-
395(1). Def.'s Resp. Br. at 33-34. This is not an appropriate comparison, as the purposes
in regulating medical services provided to injured workers under Title 51 RCW and in
regulating medical services an insurer is required to pay in PIP coverage under Title 48
RCW are distinct.
Washington's public system of workers' compensation is not the equivalent of
insurance. See Wash. Ins. Guar. Ass'n v. Dep't ofLabor & Indus., 122 Wash. 2d 527, 532-
33, 859 P.2d 592(1993). The IIA was the product of a "grand compromise" in 1911, in
which injured workers were ensured a swift, no-fault compensation system for injuries on
the job and employers received immunity from civil suits by workers. Birklid v. Boeing
Co., 127 Wash. 2d 853, 859, 904 P.2d 278 (1995). As a result,"employees may receive less
than full tort damages in exchange for the expense and uncertainty of litigation." Minton
V. Ralston Purina Co., 146 Wash. 2d 385, 390,47 P.3d 556 (2002).
MMI in Title 51 RCW is related to the concept of fixed impairment, which plays a
key role in the compromise reflected in the IIA. "Maximum medical improvement may
be present though there may be fluctuations in levels of pain and function. . . .
'Maximum medical improvement' is equivalent to 'fixed and stable.'" WAC 296-20-
01002("proper and necessary" subsection (3)). An injured worker is entitled to receive
"proper and necessary" medical services, but once "maximum medical improvement" has
been reached, the Department of Labor and Industries may consider the worker's
condition "fixed and stable" and close the claim, at which point the worker may be
eligible for an award of permanent disability, among other benefits. See Boyd v. City of
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No. 94771-6
Olympia, 1 Wash. App. 2d 17, 27-28, 403 P.3d 956(2017), review denied, 190 Wash. 2d 1004
(2018).
MMl functions in two complementary ways in the workers' compensation system.
First, it establishes that an injured worker has a "fixed and stable" impairment, thereby
triggering disability benefits. See id. at 28; see also WAC 296-20-200(4). The disability
benefits awarded constitute compensation for the value ofthe injured worker's permanent
loss of function. See WAC 296-20-19000; see also Tomlinson v. Puget Sound Freight
Lines, Inc., 166 Wash. 2d 105, 111, 206 P.3d 657 (2009). Second, establishingMMI
terminates the responsibility of the self-insured employer or department to provide
ongoing medical expenses. See Shafer v. Dep't ofLabor & Indus., 166 Wash. 2d 710, 716-
17, 213 P.3d 591 (2009)(closure of claim proper when injured worker's condition has
become fixed and stable).
By establishing an impairment as fixed and stable, a finding of maximum medical
improvement serves a critical role in determining the relative rights and remedies
available under the IIA, facilitating the "compromise" reflected in that unique statutory
scheme.
The restrictive limitation on the definition of"proper and necessary" medical care
set forth in the IIA regulation(WAC 296-20-01002) is not present in the statutes or
regulation governing PIP coverage here. WAC 284-30-395(1) provides that an insurer
may deny, limit, or terminate benefits if it determines medical services are not reasonable
or necessary, without limiting the meaning of reasonable or necessary to services
"essential in achieving maximum medical improvement." Dkt. #32, Ex. N at 7 of 24.
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No. 94771-6
The failure to narrow "reasonable" or "necessary" services underscores that the QIC's
regulation did not adopt the IIA's restrictive definition of"proper and reasonable"
medical services.
Further, maximum medical improvement in workers' compensation under state
law is closely related to the concept of"cure" in the "maintenance and cure" doctrine
applicable to injured seamen under federal maritime law. See Miller v. Arctic Alaska
Fisheries Corp., 133 Wn.2d 250,268, 944 P.2d 1005(1997)(recognizing that
"[mjaintenance and cure is the maritime analog to land-based industrial insurance paying
an injured seaman's medical expenses (cure) and compensation in lieu of wages
(mamtenance)for injuries incurred in service of a ship"); see also Dean v. Fishing Co. of
Alaska, 111 Wn.2d 399,406, 300 P.3d 815 (2013)(noting that a shipowner's duty to pay
maintenance and cure continues until the seaman reaches the point of maximum medical
recovery). State Farm agrees that the "maximum medical cure" standard hi maritime law
is the equivalent of"MMI," and states that "[ujnder the 'maximum medical cure'
standard, a ship owner's obligation to pay an injured seaman's medical bills ends when
he or she has reached a point where 'future treatment will merely relieve pain and
suffering but not otherwise improve the seaman'sphysical condition."'' Def.'s Resp. Br.
at 34-35 (quoting Lee v. Metson Marine Servs., Inc., 2012 WL 5381803, at *2(D. Haw.
Oct. 31,2012)(court order)(emphasis added)). But State Farm points to nothing in
Washington's PIP statutes and regulations, or the underlying public policy, that suggests
that requhed payment for medical services will not include treatment that "'will merely
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No. 94771-6
relieve pain and suffering but not otherwise improve [a patient's] physieal condition.'"
Id. at 35 (quoting Lee, 2012 WL 5381803, at *2).
In sum, State Farm's analogizing to workers' compensation and maritime law is
unconvincing. For the reasons discussed above. State Farm's use of the term "MMI" is
not consistent with the common meaning of"reasonable" and "necessary" as those terms
appear in WAC 284-30-395(1), and we answer the second certified question no.®
CONCLUSION
We answer the first certified question yes. An insurer violates WAC 284-30-
395(l)(a) or(b)if that insurer denies, limits, or terminates an insured's medical or
hospital benefits claim based on a finding of"MMI."
We answer the second certified question as follows: under the
circumstances of this ease, the term "MMI" is not consistent with the terms
"reasonable" or "necessary" as those terms appear in WAC 284-30-395(1).
® Regarding the second certified question, the QIC amicus brief offers a "qualified yes," noting
that the terms "reasonable" and "necessary" are not defined in the regulation, and thus "a carrier
could potentially use a term such as 'maximimi medical improvement' when defining what
'reasonable' and 'necessary' mean under its particular contracts. However, such definitions
cannot add another requirement to the coverage ofmedical and hospital services that does not
already exist in statute or WAC." OIC Br. at 14, 12-13. The OIC does not clearly articulate
what language or conditions might meet these requirements. In any event, "[tjhis court will
consider certified questions from the federal court 'not in the abstract but based on the certified
record provided by the federal court.'" Brady, 188 Wash. 2d at 579 n.l (quoting Carlsen, 171
Wash. 2d at 493). Here, the record shows that State Farm uses the MMI provision as a primary
criterion for limiting PIP benefits. So used, the MMI provision violates WAC 284-30-395(1).
On that basis, the answer to the second certified question is no.
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No. 94771-6
WE CONCUR:
18