Frisenda v. Floyd
| Decision Date | 05 April 2018 |
| Docket Number | CIVIL ACTION NO. 1:17CV89 |
| Citation | 308 F.Supp.3d 869 |
| Parties | Dawn FRISENDA, Plaintiff, v. Lindsey FLOYD and State Farm Mutual Automobile Insurance Company, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
Taylor Burkhart Downs, Timothy J. Manchin, Manchin Injury Law Group, PLLC, Fairmont, WV, for Plaintiff.
Laura L. Gray, R. Carter Elkins, Charles K. Garnes, Elkins Ray, PLLC, Huntington, WV, for Defendants.
The defendant, State Farm Mutual Automobile Insurance Company ("State Farm"), has filed a Motion for Partial Summary Judgment, presenting the question whether West Virginia law requires that it pay a pro rata share of the attorney's fees and costs incurred by the plaintiff, Dawn Frisenda ("Frisenda"), when State Farm applies the non-duplication of benefits provision applicable to Frisenda's underinsured motorist ("UIM") coverage. Concluding that State Farm is under no such obligation, the Court GRANTS the motion for partial summary judgment (Dkt. No. 19).
The Court recites the facts based on the parties' undisputed submissions, and views them in the light most favorable to Frisenda, the non-moving party. Providence Square Assocs., LLC v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). On March 20, 2015, Frisenda was involved in an automobile collision with the defendant, Lindsey Floyd ("Floyd"). Frisenda alleges that Floyd crossed the center line and struck the driver's side of Frisenda's vehicle (Dkt. No. 1–1 at 2). At the time of the accident, State Farm's policy with Frisenda provided $100,000 of UIM coverage and $25,000 of medical payments coverage ("MPC"). Floyd's policy with Westfield Insurance Co. ("Westfield") provided $50,000 in liability coverage.
Frisenda's policy contained provisions regarding reimbursement, subrogation, and non-duplication of benefits. State Farm retained the right to recover certain payments, as follows:
(Dkt. No. 19–3 at 40). In addition, the policy provided for the non-duplication of UIM benefits:
With the assistance of counsel, Frisenda settled her claim for Floyd's $50,000 policy limits. On July 7, 2016, Frisenda advised State Farm of her settlement with Westfield, which was contingent on State Farm's consent, waiver of subrogation, and full release of Floyd. Frisenda also reiterated that she had incurred $34,809.27 in medical expenses, and demanded that State Farm pay her the full $100,000 UIM coverage available under her policy (Dkt. No. 33–1). On August 8, 2016, State Farm responded that it would settle Frisenda's UIM claim for $5,707, but failed to address the pending settlement with Westfield (Dkt. No. 33–2). Following further inquiry, on August 30, 2016, State Farm consented to the settlement with Westfield and waived its right to subrogation (Dkt. Nos. 33–3; 33–4).
On September 20, 2016, State Farm indicated that, after taking into account the non-duplication of damages paid as expenses under MPC, it had determined the amount of the proposed settlement as follows:
• Medical Bills $36,716.06
• Future Medical $13,216.00
• Lost Wages $1,537.17
• General Damages $17,000.00
• Future General Damages $2,000.00
• Non Duplication Offsets -$14,761.61 for MPC
• Other Insurance -$50,000.00
(Dkt. No. 33–7). Frisenda asserts that after she provided supplemental records and bills State Farm increased its settlement offer to $7,000. Frisenda then advised State Farm that her lost earning capacity was approximately $174,312, and again demanded that State Farm tender the full $100,000 of available UIM coverage. Rather than do so, State Farm instead requested additional information regarding the permanency of Frisenda's injuries (Dkt. No. 1–1 at 3–4).
On March 15, 2017, Frisenda filed this action in the Circuit Court of Marion County, West Virginia, against Floyd and State Farm (Dkt. No. 1–1). In addition to her negligence claim against Floyd, Frisenda alleged claims of breach of contract, breach of duty of good faith and fair dealing, and violations of the West Virginia Unfair Trade Practices Act against State Farm. Id. at 5–14. She specifically alleged that "State Farm failed to reduce its medical payment reimbursement amount by its pro rata share of attorney's fees and costs pursuant to Federal Kemper Insurance Company v. Arnold, 183 W. Va. 31, 393 S.E.2d 669 (1990)" (Dkt. No. 1–1 at 4).
State Farm timely removed the case to this Court and filed its answer on May 16, 2017 (Dkt. Nos. 1; 3). In relevant part, State Farm "denie[d] that it sought reimbursement of medical payments coverage, but affirmatively state[d] and allege[d] that it applied non-duplication of medical payments coverage pursuant to State Farm Mutual Automobile Insurance Company v. Schatken, 230 W.Va. 201, 737 S.E.2d 229 (2012)" (Dkt. No. 3 at 5). Following a scheduling conference on July 28, 2017, the Court set a briefing schedule regarding whether State Farm is required to pay a pro rata share of Frisenda's attorney's fees and costs when it applies its policy's non-duplication provision (Dkt. Nos. 8; 9). On August 2, 2017, State Farm advised Frisenda that it was waiving the subrogation of medical payments (Dkt. No. 33–8).
In its motion for partial summary judgment, State Farm contends that neither West Virginia law nor the language of the policy at issue requires that it pay attorney's fees and costs when applying the non-duplication of benefits provision to prevent a double recovery of Frisenda's damages (Dkt. No. 19). State Farm argues that, although it must share in fees and costs when seeking reimbursement, non-duplication is distinct from reimbursement (Dkt. No. 20 at 5–9). In response, Frisenda contends that non-duplication accomplishes the same purpose as reimbursement, and that State Farm therefore must pay its fair share of the cost Frisenda incurred to create the $50,000 "common fund" from Westfield (Dkt. No. 33 at 11–17).
Summary judgment is appropriate where the "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" establish that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A). When ruling on a motion for summary judgment, the Court reviews all the evidence "in the light most favorable" to the nonmoving party. Providence, 211 F.3d at 850. The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing that there are no genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has made the necessary showing, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505 (internal quotation marks and citation omitted). The "mere existence of a scintilla of evidence" favoring the non-moving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248–52, 106 S.Ct. 2505.
As a threshold matter, the Court must distinguish among reimbursement, subrogation, and non-duplication under West Virginia law. Generally speaking, subrogation and reimbursement relate to the distribution of recoveries against a wrongdoer or the wrongdoer's liability carrier, while non-duplication prevents an insured from receiving a double recovery of damages. See State Farm Mut. Auto. Ins. Co. v. Schatken, 230 W.Va. 201, 737 S.E.2d 229 (2012).
An insurer may seek subrogation from a third-party wrongdoer of sums that the insurer has already paid to its insured but for which the wrongdoer is liable to the insured. See Richards v. Allstate Ins. Co., 193 W.Va. 244, 455 S.E.2d 803, 805 (1995). "A provision in an insurance policy providing for...
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Schweihs v. State Farm Mut. Auto. Ins. Co.
...provision in an automobile insurance policy prevents an insured from receiving double recovery of damages. See Frisenda v. Floyd, 308 F. Supp. 3d 869, 875 (N.D. W. Va. 2018) (citing State Farm Mut. Auto. Ins. Co. v. Schatken, 737 S.E.2d 229, 234 (W. Va. 2012)). If the liability coverage pai......