Castilla v. Nat'l Union Fire Ins., Case No. 11-62086-CIV-COHN/SELTZER

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtJAMES I. COHN
Docket NumberCase No. 11-62086-CIV-COHN/SELTZER
Decision Date27 June 2012

ROLANDO CASTILLA, an individual, Plaintiff,
PENNSYLVANIA, a corporation, Defendant.

Case No. 11-62086-CIV-COHN/SELTZER


Date: June 27, 2012


THIS CAUSE is before the Court on Defendant National Union Fire Insurance Co. of Pittsburgh, Pennsylvania's Motion for Summary Judgment [DE 68] ("Motion"). The Court has considered the Motion, Plaintiff Rolando Castilla's Response [DE's 89, 90] ("Response") and Addendum to his Response [DE 92] ("Addendum"), Defendant's Reply [DE 95], the record in this case, and is otherwise advised in the premises.


Plaintiff Rolando Castilla brings this action to recover benefits under an accidental dismemberment insurance policy.1 See Second Amendment Complaint [DE 29]. Defendant National Union Fire Insurance Company of Pittsburgh, Pennsylvania contends that Plaintiff is not entitled to benefits under the policy, and seeks damages for insurance fraud against Plaintiff. See Counterclaim [DE 34].

Plaintiff originally filed this action in the Circuit Court of the Seventeenth Judicial

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Circuit, in and for Broward County, Florida on July 5, 2011. See Complaint [DE 4-1]. On September 22, 2011, Defendant removed the action to this Court based on diversity jurisdiction. See Notice of Removal [DE 1]. The pending claims are contained in Plaintiff's Second Amended Complaint and Defendant's Counterclaim.

In the instant Motion, Defendant seeks summary judgment on Plaintiff's Second Amended Complaint and Defendant's Counterclaim. Plaintiff opposes summary judgment, see Resp.; Addendum to Resp., but he has not contested Defendant's Statement of Undisputed Facts [DE 68]. Further, the Court finds that Defendant's Statement of Undisputed Facts is supported by the record evidence. Therefore, under the Local Rules, Plaintiff admits those facts. See L.R. 56.1(b) ("All material facts set forth in the movant's statement filed and supported as required above will be deemed admitted unless controverted by the opposing party's statement, provided that the Court finds that the movant's statement is supported by evidence in the record."). The Court recounts the pertinent facts as follows.

A. Plaintiff's History of Eye Problems

Plaintiff's eye problems commenced no later than 2004. That year, Plaintiff saw Dr. Sheldon H. Feldman for cataract surgery and then laser surgery on his left eye. See Deposition of Sheldon H. Feldman, M.D. [DE 73-8] at 9, 15-16. Dr. Feldman also diagnosed Plaintiff with glaucoma in his left eye and gave him eye drops for the glaucoma. Id. at 11, 13. Dr. Feldman saw Plaintiff for multiple follow-up visits up through June 2004. Id. at 23, 26:2-4.

Then, on May 10, 2006, Plaintiff saw opthalmologist Robert Nagler, M.D. See Deposition of Robert Nagler, M.D. [DE 73-9] at 5:15-16. By then, Plaintiff was no longer

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using his eye drops, and he denied having glaucoma. Id. at 12:15-13:6. Dr. Nagler diagnosed a detached retina and elevated intraocular pressure in Plaintiff's left eye, and he recognized a prior cataract surgery in that eye. Id. at 13. Dr. Nagler arranged for Plaintiff to see a specialist at the Retina Group, and never saw him again. Id. at 17:11-13.

The next day, May 11, 2006, Plaintiff went to the Retina Group. Deposition of W. Scott Thompson, M.D. [DE 73-10] at 7. Plaintiff saw Dr. Scott Anagnoste, who wrote the following note in Plaintiff's record:

Patient scheduled for surgery in 24 hours but patient refuses. Wishes surgery on May 22nd. Explained to patient that vision will worsen probably permanently. Patient expressed understanding. Refuses surgery on May 12, May 16 and May 17 of 2006. Advised in the strongest possible terms to have surgery as soon as possible or risk permanent loss of vision. Understanding expressed.

Id. at 17. Despite Dr. Anagnoste's recommendation, Plaintiff refused immediate corrective surgery and instead waited until May 22, 2006, when Dr. W. Scott Thompson performed his retinal detachment repair surgery. Id. at 17, 21:17-21. Plaintiff then suffered a second retinal detachment in his left eye, and Dr. Thompson performed a second corrective surgery on July 10, 2006. Id. at 30:24-25.

By September 14, 2007, Dr. Thompson measured Plaintiff's left eye's vision to be between 20/80 and 20/60, Thompson Dep. at 38:15-24, but by March 14, 2008, Plaintiff's left eye's vision had decreased to between 20/100 and 2/80, id. at 40:1-10. Plaintiff complained of blurriness and pain in his left eye, and his left eye had a reduced visual field and distortion. Id. at 40, 41-43. Despite instructions to follow up, Plaintiff never returned to Dr. Thompson. Id. at 44.

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On May 1, 2008, Plaintiff returned to Dr. Feldman for the first time since June 2004. Feldman Dep. at 23, 26:2-4. Plaintiff complained of pain in his left eye. Id. at 27. Dr. Feldman measured Plaintiff's left eye's vision at 20/200, a significant deterioration since Plaintiff saw Dr. Thompson less than two months prior. Id. at 28. Dr. Feldman noted exotropia (a deviation of the left eye outward) and ptosis of the left eye lid. Id. at 29. When Dr. Feldman next saw Plaintiff, on May 19, 2008, he measured Plaintiff's left eye's vision at 20/200 once again. Id. at 33. Despite Dr. Feldman's instructions to follow up within three months, Plaintiff failed to do so. Id. at 33-34. On July 8, 2008, Dr. Feldman provided a summary of findings for Plaintiff, listing the following diagnoses: glaucoma, retinal detachment times two in the left eye, and macular degeneration in the left eye. Id. at 43.

B. Insurance Policy

Effective August 4, 2008, Plaintiff enrolled in an insurance policy with Defendant National Union Fire Insurance Co. of Pittsburgh, Pennsylvania. See Certificate of Insurance, Exhibit A to Declaration of Elaine Langley [DE's 70, 76 at 4-13] ("Certificate"). Defendant had issued the policy, a Group Accident Insurance policy, to HSBC Bank, under which the bank's customers could enroll for group accident insurance coverage. Declaration of Elaine Langley [DE's 70, 76] ¶ 2. At the time of enrollment, each bank customer was issued a Certificate of Coverage that included the applicable terms, conditions, and exclusions pertinent to the coverage. Id. Plaintiff received this paperwork when he enrolled. See Certificate.

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C. Publix Accident

Three months after enrolling in Defendant's group accident insurance policy, on November 9, 2008, Plaintiff was shopping at Publix when something struck him on the left side of his head and knocked him out. Deposition of Rolando Castilla, July 14, 2010 [DE 73-6] ("Castilla Dep., July 14, 2010") at 76; Deposition of Rolando Castilla, April 16, 2012, Volume III [DE 83-1] ("Castilla Dep., April 16, 2012, Vol. III") at 302, 303-304, 306-308. Plaintiff says he fell backwards, lost consciousness, and woke up on his back, lying face up. Castilla Dep., April 16, 2012, Vol. III at 308-310, 305; Castilla Dep., July 14, 2010 at 76:13-18, 89:16-25. He was transported to the hospital emergency room by ambulance. Deposition of Rolando Castilla, January 27, 2011 [DE 73-7] ("Castilla Dep., Jan. 27, 2011") at 132:3-4.

Contrary to Plaintiff's deposition testimony that he lost consciousness in the accident, both the ambulance records and the hospital emergency records report that Plaintiff denied losing consciousness at the time of the accident. See Ambulance Record, Exhibit A to Statement of Undisputed Facts [DE 69-1] at 3; Hospital Emergency Department Medical Record, Exhibit B to Statement of Undisputed Facts [DE 69-2] ("Hospital Record") at NW MED 4. Further, the hospital records show that a CAT scan indicated that the head injury was "minor," there was no damage to Plaintiff's left eye, and Plaintiff was sent home. Hospital Record at NW MED 4, 8, 9, 12.

On November 24, 2008, Plaintiff returned to Dr. Feldman. Feldman Dep. at 35. Plaintiff had once again stopped using his prescribed eye drops for his glaucoma in his left eye, and there was high pressure in both eyes now. Id. At the examination that day, Plaintiff's vision in his left eye was limited only to light perception. Id. at 36. Dr.

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Feldman never saw Plaintiff again after that day. Id. at 41:9-11. Although, at his deposition, Dr. Feldman did not have an opinion as to the ultimate cause of Plaintiff's alleged loss of vision in his left eye, he opined that Plaintiff's complaints "are contributed to by sickness, disease, or bodily infirmity." Id. at 45. Dr. Feldman also stated that Plaintiff "had a retinal detachment that was operated on twice, which make him more susceptible to [ ] having it detach again, which could lose his vision [sic]; and if he did not treat his glaucoma and the pressure went way up, within a year or so it's possible he could lose his vision." Id. at 50:18-22.

Two days after visiting Dr. Feldman, Plaintiff saw Dr. Mandeep Dhalla at the Retina Group on November 26, 2008. Thompson Dep. at 44:9-17. Dr. Dhalla measured Plaintiff's left eye's vision at "hand motion, meaning he could only see...

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