Engle v. Liberty Mut. Fire Ins. Co.

• Decision Date: 11 July 2005
• Docket Number: Civ. No. 04-00256 SOM/BMK.
• Citation: 402 F.Supp.2d 1157
• Parties: Tiara ENGLE and Portner Orthopedic Rehabilitation, Incorporated, Plaintiffs, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

402 F.Supp.2d 1157

Tiara ENGLE and Portner Orthopedic Rehabilitation, Incorporated, Plaintiffs, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, et al., Defendants.

Civ. No. 04-00256 SOM/BMK.

United States District Court, D. Hawai'i.

July 11, 2005.

Harvey M. Demetrakopoulos, argued, Roy K.S. Chang, appeared, but did not argue, Shim & Chang, Honolulu, HI, for Plaintiffs.

R. John Seibert, argued, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI, for Defendants.

ORDER GRANTING DEFENDANT LIBERTY MUTUAL FIRE INSURANCE COMPANY'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS; ORDER GRANTING LIBERTY MUTUAL'S MOTION FOR PARTIAL SUMMARY JUDGMENT

MOLLWAY, District Judge.

I. INTRODUCTION.

What does it mean to be included? Much of this insurance coverage dispute turns on how one dissects the unassuming word "including" as it is used in a Hawaii insurance statute. Plaintiffs, an insured and her treatment provider, say the word "including" introduces examples, so that a reference to an independent medical examination ("IME") as "including" a record review means that a record review is a kind of IME. Defendant Liberty Mutual Fire Insurance Company, by contrast, says that "including" introduces component parts, so that the record review is included in the IME, but is not itself an IME. This exercise in lexicography is the subject of a motion for partial summary judgment brought by Liberty Mutual and of a counter-motion brought by Plaintiffs Tiara Engle and Portner Orthopedic Rehabilitation, Incorporated. The court grants Liberty Mutual's motion for partial summary judgment and denies Plaintiffs' counter-motion.

Liberty Mutual also moves for judgment on the pleadings as to certain other claims. That motion is unopposed and is granted.

II. BACKGROUND.

On May 2, 2003, Engle was a passenger in a car that was involved in an accident. The car was insured by Liberty Mutual, and Engle sought benefits under the "Personal Injury Protection" provisions of Liberty Mutual's policy. Liberty Mutual paid Engle's bills for emergency room treatment on the day of the accident and for later massage and chiropractic treatment at Portner Orthopedic through August 2003.

On November 10, 2003, Liberty Mutual asked Dr. Clifford Lau, an orthopedist, to perform a "record review" of Engle's medical condition and to opine on, among other things, whether Engle required future treatment. In retaining Dr. Lau, Liberty Mutual cautioned Dr. Lau that his charges for completing the assignment could not exceed the fee limits for IMEs set forth in Haw.Rev.Stat. § 431:10C-308.5(b).

Based on his review of Engle's medical records, Dr. Lau opined that further treatment was not necessary. Liberty Mutual then issued a "Denial of Claim" letter to Engle, stating that Liberty Mutual would no longer pay for Engle's treatments. Engle continued to receive treatments, and Portner continued to bill Liberty Mutual for these treatments.

On March 8, 2004, Plaintiffs filed suit in the First Circuit Court of the State of Hawaii. Their Complaint alleged tortious breach of contract, as well as violations of Haw.Rev.Stat. §§ 431:13-103(a)(11), 431:10C-308.5(b), and Haw.Rev.Stat. Ch. 480. Plaintiffs sought general damages, special damages, "[o]ther economic and non-economic damages," punitive damages, treble damages, prejudgment interest, costs, and reasonable attorney's fees.

On April 21, 2004, Liberty Mutual removed that case to this court. In its Notice of Removal, Liberty Mutual stated that "the amount in controversy is greater than $75,000.00, exclusive of interest and costs."

III. STANDARD OF REVIEW.

Rule 12(c) of the Federal Rules of Civil Procedure states:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

The standard governing a Rule 12(c) motion for judgment on the pleadings is essentially the same as that governing a Rule 12(b)(6) motion. The motion will not be granted if, accepting as true all material allegations contained in the nonmoving party's pleadings, the moving party is entitled to judgment as a matter of law. Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'l Planning Agency, 24 F.Supp.2d 1062, 1066 (E.D.Cal.1998). For a Rule 12(c) motion, the allegations of the nonmoving party must be accepted as true, while the allegations of the moving party that have been denied are assumed to be false. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989). Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. Id. However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment. Id.

Summary judgment shall 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 a judgment as a matter of law.

Fed.R.Civ.P. 56(c); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party who fails to demonstrate facts to establish what will be an essential element at trial. Id. at 322, 106 S.Ct. 2548. The burden initially lies with the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth "specific facts showing that there is a genuine issue for trial." Id. At least some" `significant probative evidence tending to support the complaint'" must be produced. Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348).

However, when "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. All evidence and inferences must be construed in the light most favorable to the nonmoving party. Id. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

IV. ANALYSIS.

A. This Court Has Jurisdiction In This Matter.

A district court has diversity jurisdiction over a case in which the plaintiff and defendant are not citizens of the same state and in which the amount in controversy exceeds $75,000, as measured at the time of removal. See Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.1998). When, as here, a defendant requests removal from state court and the complaint does not allege an amount in controversy, the removing defendant must prove the amount in controversy by a preponderance of the evidence. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996).

Although the Complaint did not state a specific damage amount, it clearly prayed for compensatory and punitive or treble damages, as well as attorney's fees. Liberty Mutual's Notice of Removal stated that "the amount in controversy is greater than $75,000.00." Plaintiffs do not present any evidence that, at the time of removal, a lesser amount was in controversy.¹ Having examined the record, the court concludes, by a preponderance of the evidence, that the amount in controversy requirement is satisfied in this case.

B. Liberty Mutual's Motion for Partial Judgment on The Pleadings is Granted.

Plaintiffs have brought claims under Haw.Rev.Stat. § 431:13 and Haw.Rev.Stat. Chapter 480, and for tortious breach of contract. Under Fed.R.Civ.P. 12(c), Liberty Mutual moves for judgment on the pleadings on these claims, arguing that there is no private right of action under Haw.Rev.Stat. § 431:13, that Plaintiffs have no standing to bring a claim under chapter 480, and that the Hawaii Supreme Court has eliminated the cause of action for tortious breach of contract. Plaintiffs do not oppose Liberty Mutual's motion for partial judgment on the pleadings. Accordingly, Liberty Mutual's motion for judgment on the pleadings is granted with respect to these claims.

...