Camacho v. Nationwide Mut. Ins. Co., Civil Action No. 1:11–CV–3111–AT.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtAMY TOTENBERG
Citation13 F.Supp.3d 1343
PartiesJesus CAMACHO, surviving spouse of Stacey Camacho, and LaJean Nichols, as Administratrix of the Estate of Stacey Camacho, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant.
Decision Date31 March 2014
Docket NumberCivil Action No. 1:11–CV–3111–AT.

13 F.Supp.3d 1343

Jesus CAMACHO, surviving spouse of Stacey Camacho, and LaJean Nichols, as Administratrix of the Estate of Stacey Camacho, Plaintiffs,

Civil Action No. 1:11–CV–3111–AT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 31, 2014

Motion granted in part and denied in part.

[13 F.Supp.3d 1348]

Brandon Cathey, Swope, Rodante, P.A., Tampa, FL, Darrell Wayne Hinson, Swope, Rodante, P.A., Decatur, GA, for Plaintiffs.

Jeffrey Emery Tompkins, Shukura Ingram Millender, Thomas Kennedy Sampson & Tompkins, LLP, Robert Malcolm Darroch, Stephanie F. Glickauf, Goodman McGuffey Lindsey & Johnson, for Defendants.

AMY TOTENBERG, District Judge.

This insurance case arises out of an automobile accident that occurred after Nationwide's insured, Seung Chun Park, ran a red light and struck a car driven by Stacey Camacho, causing her death. Plaintiffs Jesus Camacho, surviving spouse of Stacey Camacho and LaJean Nichols, Administratrix of the Estate of Stacey Camacho, allege that Nationwide negligently and in bad faith failed to accept a demand for settlement of all claims against Park within the policy limits and exposed Park to a $5.83 million excess jury verdict. Following

[13 F.Supp.3d 1349]

the jury's verdict in the state court wrongful death suit, Park assigned his claims for negligent and bad faith failure to settle against Nationwide to Plaintiffs. This case is before the Court on Defendant Nationwide's Motion for Summary Judgment [Doc. 76] and Motion to Exclude Expert Witness [Doc. 77]. Nationwide seeks summary judgment on the grounds that the undisputed evidence demonstrates that that it acted in good faith and that Plaintiffs' policy-limits demand was not a sufficiently definite settlement offer capable of acceptance. Nationwide also seeks to exclude Plaintiffs' insurance expert from offering an opinion on Nationwide's claims handling at trial. The Court's rulings on Nationwide's motions are set forth below.


Summary judgment may only be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” Fed.R.Civ.P. 56(c). The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting the Advisory Committee's note to Fed.R.Civ.P. 56). “[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record before the court] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to establish, by going beyond the pleadings, that there is indeed a genuine issue as to the material facts its case. Thompson v. Metro. Multi–List, Inc., 934 F.2d 1566, 1583 n. 16 (11th Cir.1991); Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991). A dispute of material fact “is ‘genuine’ ... [only] if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). The Court must avoid weighing conflicting evidence. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; McKenzie v. Davenport–Harris Funeral Home, 834 F.2d 930, 934 (11th Cir.1987). Nevertheless, the non-moving party's response to the motion for summary judgment must consist of more than conclusory allegations, and a mere “scintilla” of evidence will not suffice. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990); Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir.1989). But where a reasonable fact finder may “draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment.” Barfield v. Brierton, 883 F.2d 923, 933–34 (11th Cir.1989) (citation omitted).

The essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

[13 F.Supp.3d 1350]

Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

II. FACTUAL BACKGROUND 1 A. Nationwide's Preliminary Investigation

The automobile accident caused by Mr. Park that resulted in the death of Stacey Camacho occurred on July 3, 2005. (Def.'s SMF ¶ 1; Pl.'s Resp. SMF ¶ 1; Compl. ¶ 7.) At the time of the accident, Park was insured under an automobile insurance policy with Nationwide, with policy liability limits of $100,000 per person's bodily injury and $300,000 per accident. (Nationwide Policy No. 70–10–P–456486, Def.'s MSJ App. U, Doc. 76–4, at 202; Pls.' RSMF ¶ 2, Doc. 95–1.) As of July 7, 2005, the claim for damages arising from the accident had been reported to Nationwide and was assigned to Sharon Wilson for adjustment handling. (Dep. Wilson I, at 96, Doc. 83.) Upon assignment, a computer log was created where Wilson “timely record[ed] all activity on [the Stacey Camacho] claim.” ( Id. at 93, 97–98; see generally Nationwide Activity Log [hereinafter “Log at [page]”], Def.'s MSJ App. C, Doc. 76–4, at 47, Pls.' Resp. to Def.'s Mot. Summ. J. (“Pls.' RMSJ”) Ex. B, Doc 96, at 44.)

On July 8, 2005, Wilson obtained the police accident report. The report indicated that Park had failed to stop for a red light, and had been arrested on suspicion of driving under the influence of alcohol. (Log at NW000367, Docs. 76–4 at 47, 96 at 44.) Wilson made a determination of probable adverse liability to Park, and on July 11, 2005, on behalf of Nationwide she sent Park a letter indicating that he faced potential liability in excess of the policy limits. (Log at NW000352, Docs. 76–4 at 47, 96 at 44; Dep. Wilson I, at 109, Doc. 83; NW ‘Excess' Letter to Park dated 7/11/2005, Def.'s MSJ App. E, Doc. 76–4, at 70.)

Wilson met with Stacey's husband, Jesus Camacho (“Camacho”), and her mother LeJean Nichols, at Nichols' home. (Dep. Wilson I, at 100, Doc. 83; Dep. LeJean Nichols, at 17, Def.'s MSJ App. F, Doc. 76–4, at 71.) The purpose of this meeting was for Wilson “to introduce [herself] as the claims representative that was assigned to handle the claim and explain the claims process,” as well as to secure further information as part of her preliminary investigation of the claim. (Dep. Wilson I, at 100, Doc. 83.) Wilson learned that Stacey's vehicle was insured with GEICO with underinsured motorist coverage of $50,000 per person and $100,000 per accident. (Def.'s SMF ¶ 11, Doc. 76–1; Pls.' RSMF ¶ 11, Doc. 95–1.) Wilson determined that Stacey's underinsured motorist coverage with GEICO did not apply in this case because it did not exceed Park's liability coverage. (Def.'s SMF ¶ 13, Doc. 76–1; Pls.' RSMF ¶ 13, Doc. 95–1.) At the conclusion of her preliminary investigation, Wilson determined that the value of the

[13 F.Supp.3d 1351]

claim exceeded Park's $100,000 policy limit. (Dep. Wilson I, at 116, Doc. 83.)

B. Nationwide's Initial Settlement Discussions

On August 25, 2005, Wilson prepared a request for a $100,000 pre-settlement authorization from her supervisor “to tender limits to spouse or [attorney] in exchange for a General Release ... [with] [p]ayment [to] include the Estate Claim and the Wrongful Death Claim.” ( Id. at 116–118; Log at NW000299–300., Docs. 76–4 at 47, 96 at 44.) Wilson did not receive a response to this request. (Dep. Wilson I, at 118, Doc. 83.)

On August 26, 2005, Wilson wrote a letter to Nichols asking for “[c]opies of the related Medical bills for [ ] Stacey,” “[a] copy of the certificate of death,” and “[a]ny medical lien or subrogation letters from Peach Care of BCBS.” (NW Letter to Nichols dated 8/26/2005, Def.'s MSJ App. I, Doc. 76–4, at 91.)

On October 24, 2005, Wilson again requested pre-settlement authorization approval from her supervisor, Mitch Parham. (Log at NW000283, Docs. 76–4 at 47, 96 at 44.) The authorization request lists the liability as “clear,” and notes under “SPECIAL DAMAGES” that the “family is presenting a wrongful death claim” with “[n]o [attorney] involved,” and itemizes the hospital bill as “$54,186.00” and the funeral bill as “$5,723.70” for a total estate claim of “59,909.00 [sic].” ( Id.) Finally, the request lists a “[h]ospital lien filed $6,573.00, to be protected” as well as a notation that the “[f]amily reports that some of the medical bills were paid by group health.” ( Id.) On October 27, 2005, Wilson's supervisor, Mitch Parham, reviewed the request and commented: “25 year old driver and fatality on this case with punitive concerns. agree limits case. you will need to protect liens and verify marriage. sending noa to director for auth.” (Log at NW000282, Docs. 76–4 at 47, 96 at 44.) That same day, the request for settlement authority was approved. (Def.'s SMF ¶ 18, Doc. 76–1; Pls.' RSMF ¶ 18, Doc. 95–1.)

Wilson “followed up with Mrs. Nichols and Jesus Camacho, Stacey's husband, in November 2005 to discuss settlement. However they indicated they were not ready to discuss settlement at that time.” (Aff. Wilson, Def.'s MSJ App. D, Doc. 76–4, at 60.) 2

In February 2006, Wilson...

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