Cousin v. GEICO Gen. Ins. Co.
| Decision Date | 15 December 2015 |
| Docket Number | Case No. 3:14–cv–397–J–39JRK |
| Citation | 166 F.Supp.3d 1290 |
| Parties | Ethel Cousin, Plaintiff, v. Geico General Insurance Company, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Michael S. Rywant, Kerry C. McGuinn, Jr., Rywant, Alvarez, Jones, Russo & Guyton PA, Gainesville, FL, Michael D. Marrese, Morgan & Morgan, PA, Jacksonville, FL, for Plaintiff.
Amanda L. Kidd, Stephanie Ann McQueen, Young, Bill, Roumbos & Boles, PA, Pensacola, FL, B. Richard Young, Young, Bill, Roumbos & Boles, PA, Miami, FL, for Defendant.
BRIAN J. DAVIS
, United States District Judge.
THIS CAUSE is before the Court on Defendant GEICO General Insurance Company's (“GEICO”) Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 53) and Plaintiff Ethel Cousin's response in opposition (Doc. 66).
On June 12, 2009, Ms. Cousin and her husband were involved in a traffic accident (the “accident”) when Helen Bratcher made a left turn in front of the Cousins' vehicle.2 (Doc. 58.1). Ms. Bratcher was found to be at fault for the accident and she was cited for careless driving. (Id. ). It is undisputed that both drivers were insured by GEICO. On the same day of the accident GEICO was notified that Ms. Cousin sustained a fractured leg
, as well as injuries to her knee, neck, and shoulder, and that an ambulance transported Ms. Cousin to the hospital. (Doc. 58.7 at 19). By June 15, 2009, GEICO conducted interviews with the Cousins verifying that both had sustained injuries. (Id. at 17–18). The interview of Ms. Cousin revealed that she was suffering from neck, back, chest, knee, feet, wrist, and arm pain, and that she was losing wages from her job as a certified nursing assistant. (Id. at 18).
On June 29, 2009, attorney Michael Marrese began representing Ms. Cousin in her efforts to recover for injuries she sustained in the accident. (Doc. 58.8). On July 27, 2009, GEICO notified Ms. Cousin that it assigned Kimberly Stephens to handle Ms. Cousin's UM claim and asked for an update regarding the “injury and treatment status” of Ms. Cousin. (Doc. 58.10).3 On August 3, 2009, the adjuster assigned to Ms. Cousin's bodily injury (“BI”) claim against Ms. Bratcher notified Ms. Stephens that GEICO tendered the full $10,000.00 available under Ms. Bratcher's policy to Ms. Cousin because of Ms. Cousin's “Displaced Spiral Fx [fracture] Of The Tibia.”4 (Doc. 58.6 at 26). On August 10, 2009, Ms. Cousin also notified Ms. Stephens that she received a check for $10,000.00 from Ms. Bratcher's insurance and demanded payment of the full $100,000.00 available under Ms. Cousin's UM policy. (Doc. 58.11).
Ms. Cousin attached copies of various medical records with her demand. (Docs.58.11–58.18). Among the records was a Patient Assessment form completed by Medwell Medical Center (“Medwell”) on June 25, 2009, which described Ms. Cousin as experiencing pain in her neck, hand, and foot with levels of pain high enough that it interfered with her ability to work and sleep.5 (Doc. 58.14 at 5). After completing its evaluation, Medwell diagnosed Ms. Cousin with a neck sprain
and spiral fracture of the right tibia. (Id. at 6). Medwell then recommended that (1) Ms. Cousin undergo two to three weeks of, among other things, physical therapy and electrical stimulation therapy and (2) referred Ms. Cousin to see an orthopedic specialist (Doc. 58.13 at 5). Between July 8 and July 10, 2009, Ms. Cousin underwent a series of x-rays on her hip, wrist elbow, and lumbar and thoracic spine, which only showed scoliosis and mild degenerative disc disease of her thoracic spine. (Doc. 58.18).
Also among the medical records Ms. Cousin provided GEICO was a July 20, 2009 follow-up evaluation by Medwell, which reported that Ms. Cousin was experiencing cervical, lumbar, hip, elbow, and ankle pain. (Doc. 58.15 at 4). Ms. Cousin rated the severity of her cervical and lumbar pain at a 6 and 7, respectively. (Id. ). The evaluation recommended another three to four weeks of physical therapy in hopes of improving Ms. Cousin's pain, posture, strength, and range of motion. (Id. at 5).
Simultaneous to Ms. Cousin's demand letter to GEICO for the full amount available under the UM policy, Ms. Cousin filed her first Civil Remedy Notice of Insurer Violations (Doc. 58.19; 8/10/09 “First CRN”). The First CRN accused GEICO of violating Florida Statute section 524.155(1)(b)(1), which provides a cause of action where an insurer fails “in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests[.]” Ms. Stephens responded to Ms. Cousin's initial demand letter by confirming receipt of the initial demand letter and that GEICO would contact Ms. Cousin after evaluation of the claim. (Doc. 58.20; 8/17/09 Response). Two days later, Ms. Cousin sent additional medical records which included some medical records predating the accident. (Doc. 58.21). Of note, the additional medical records showed that Ms. Cousin had testing on her lumbar on February 9, 2007, which showed mild broad lumbar dextroscoliosis. (Id. at 7). The additional medical records also showed that she underwent further testing on her lumbar following the accident, which showed degenerative disc and joint disease, but no acute findings. (Id. at 4).
On August 26, 2009, GEICO completed review of Ms. Cousin's UM claim, and GEICO decided that the information available to them at the time was “[l]imited” and that it needed personal injury protection (“pip”) logs and all billing information. (Doc. 58.6 at 8). The following day, Ms. Stephens informed Ms. Cousin that GEICO was considering Ms. Cousin's UM claim and that GEICO needed pips logs and documentation of any lost wages to complete its evaluation. (Id. at 7). Again, on September 9, 2009, Ms. Stephens advised Ms. Cousin that her claim remained under consideration and that GEICO was in need of pip logs and lost wage information. (Doc. 58.22). On September 29, 2009, GEICO again requested all of Ms. Cousin's medical records and bills related to the accident so it could make a determination on her UM claim. (Doc. 58.23 at 2). During a phone conversation on the same day, GEICO again asked for all of Ms. Cousin's medical records and bills. (Doc. 58.5 at 33–34). Ms. Cousin advised that she was undergoing treatment and would update GEICO as to her status in a week or so. (Id. at 34).
Ms. Cousin followed-up with GEICO on October 5, 2009, by sending a letter that informed GEICO that her fractured tibia received a positive prognosis and was healing well. (Doc. 58.24; 10/5/2009 Letter). That same letter also informed GEICO that Ms. Cousin was still experiencing “tremendous” back pain for which she underwent two epidural injections
to her lumbar spine with a third scheduled in the immediate future. (Id. ). Attached to the letter was the report from an August 10, 2009 MRI of Ms. Cousin's lumbar, which showed a mild annular disc bulge, eccentric disc bulge, mild central canal stenosis, and small central disc protrusion. (Doc. 58.24 at 64).
The letter also advised GEICO that Ms. Cousin informally met with her husband's neurosurgeon Dr. Gomes at one of her husband's appointments. Ms. Cousin claimed that as a courtesy, Dr. Gomes reviewed her MRI films, which she happened to have with her at the time. After review of her MRI films, Dr. Gomes asked that Ms. Cousin make an appointment with him because he thought that Ms. Cousin could very likely be a good candidate for a lumbar fusion procedure, given that the epidural injections
were not providing the desired relief. (Id. at 1). Ms. Cousin did not provide any notes from Dr. Gomes regarding his opinion on Ms. Cousin's lumbar.
Ms. Cousin also attached additional medical records regarding her past medical treatment to her letter (e.g., 58.24 at 3), but Ms. Cousin failed to provide the previously requested pip logs or lost wage information. On October 7, 2009, Ms. Cousin provided GEICO with a letter confirming that she had an October 29, 2009 appointment with Dr. Gomes. (Doc. 58.25). GEICO replied on October 8, 2009, that it received the 10/5/2009 Letter regarding Ms. Cousin's past treatment, but noted that Ms. Cousin had only provided one medical bill for $135.00 with no pip log, no recommendation for surgery, and no lost wage documentation. (Doc. 58.26). Based on the lack of quantifiable damages to Ms. Cousin and the $10,000.00 BI benefits already paid, GEICO offered $5,135.00 to resolve Ms. Cousin's UM claim. (Id. ). GEICO also requested MRI films of Ms. Cousin's lumbar to allow GEICO to conduct an independent medical evaluation (“IME”). (Id. ).
On October 12, 2009, Ms. Cousin provided medical bills of $11,882.00 and lost wages of approximately $2,000.00. (Doc. 58.5 at 26). On the same day, Ms. Cousin filed her second Civil Remedy Notice of Insurer Violations, wherein she alleged that GEICO failed to offer timely a reasonable offer to settle her UM claim “despite [GEICO] being presented with documentation supporting a very serious set of injuries....” (Doc. 58.27; 10/12/09 “Second CRN”). On October 21, 2009, GEICO responded by scheduling Ms. Cousin for an IME on November 2, 2009. (Doc. 58.29). Ms. Cousin advised GEICO that she would check her availability for the IME, and provided medical records of her third epidural injection
. (Id. ). On October 30, 2009, Ms. Cousin advised GEICO she would not be available for the scheduled IME, and attached a copy of her pip log. (Doc. 58.31). By November 5, 2009, GEICO and Ms. Cousin agreed that the IME could take place on November 9, 2009. (Doc. 58.32). On the next day, November 6, 2009, Ms. Cousin cancelled the IME scheduled for November 9, 2009, because she underwent a percutaneous endoscopic laser discectomy and arthroscopic laser facet ablation at L4–L5 on November 4, 2009 with Dr. Gomes. (Doc. 58.33 at 3). Along with her notice of cancellation, Ms. Cousin informed...
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