Guessford v. Pa. Nat'l Mut. Cas. Ins. Co., 1:12CV260.

• Decision Date: 18 October 2013
• Docket Number: No. 1:12CV260.,1:12CV260.
• Citation: 983 F.Supp.2d 652
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Lawrence D. GUESSFORD, Jr., Plaintiff, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Defendant.

983 F.Supp.2d 652

Lawrence D. GUESSFORD, Jr., Plaintiff,

v.PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Defendant.

No. 1:12CV260.

United States District Court,

M.D. North Carolina.

Oct. 18, 2013.

Kathryn C. Setzer, Michael Doran, Doran, Shelby, Pethel and Hudson, PA, Salisbury, NC, J. David Stradley, Robert Peel Holmes, IV, White & Stradley, PLLC, Raleigh, NC, for Plaintiff.

John R. Fonda, David W. Bailey, Jr., Bailey and Thomas, Winston–Salem, NC, Robert Tayloe Ross, Diane U. Montgomery, Midkiff, Muncie & Ross, P.C., Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

BEATY, District Judge.

This matter is before the Court on a Motion for Partial Summary Judgment [Doc. # 82] filed by Plaintiff Lawrence D. Guessford, Jr. (“Plaintiff”) and a Motion for Partial Summary Judgment [Doc. # 107] filed by Defendant Pennsylvania National Mutual Casualty Insurance Company (“Defendant”). For the reasons set forth below, this Court will GRANT IN PART and DENY IN PART Plaintiff's Motion for Partial Summary Judgment [Doc. # 82], and GRANT IN PART and DENY IN PART Defendant's Motion for Partial Summary Judgment [Doc. # 107].

Though Defendant requests that this Court grant its Motion in Limine to Exclude Expert Testimony [Doc. # 122] and Motion in Limine to Exclude all Personnel Records and Alternative Compensation Plan Documents [Doc. # 126] in deciding Defendant's Motion for Partial Summary Judgment, the Court will defer disposition of those motions to the trial court, as the evidence at issue in these motions does not pertain to the part of Defendant's Motion for Partial Summary Judgment [Doc. # 107] this Court is granting, and this Court need not consider this evidence in order to address the rest of Defendant's Motion. This Court likewise defers all other outstanding evidentiary motions in this case to the trial court.

I. FACTUAL BACKGROUND

This case involves two remaining claims surrounding an automobile liability insurance policy issued by Defendant to Plaintiffs employer, Waggoner Manufacturing, Inc. (“Waggoner”). The event underlying the case is a motor vehicle accident on July 6, 2007, in which Plaintiff was traveling on Highway 29 in Salisbury, North Carolina, in a vehicle owned by his employer, Waggoner. A vehicle owned and operated by Rebecca Moore Corriher (“Ms. Corriher”) turned left onto Highway 29, directly in front of Plaintiff's oncoming vehicle, causing a collision between Plaintiff's vehicle and Ms. Corriher's vehicle. This collision caused Plaintiff to suffer various severe injuries and required hospitalization, rehabilitation, and physical therapy. At the time of the collision, Ms. Corriher carried a liability insurance policy issued by Nationwide Mutual Insurance Company (“Nationwide”) with liability insurance coverage limits of $100,000 per person injured. Additionally, because the crash occurred while Plaintiff was in the scope of his employment, Plaintiff was entitled to workers' compensation benefits, which he received through his employer's workers' compensation insurer, Hartford.

Though the collision occurred on July 6, 2007, Plaintiff did not discover the insurance policy issued by Defendant, providing coverage for Waggoner's vehicle at the time of the collision, until March of 2009. This policy contained underinsured motorist liability (“UIM”) coverage up to $1,000,000. In a letter dated March 6, 2009, Nationwide, Ms. Corriher's insurer notified Plaintiff's counsel and Defendant via letter that it tendered its liability limit of $100,000 to Plaintiff in exchange for a covenant not to enforce judgment, and Defendant had 30 days to either advance the policy limit in order to protect its subrogation rights, or forgo subrogation and allow Nationwide to pay its policy limit directly to Plaintiff. On March 9, 2009, Defendant sent Plaintiff correspondence acknowledging Defendant's receipt of a Claim Report concerning Plaintiff's accident and asking Plaintiff to complete a Medical/Wage Release Authorization. On March 16, 2009, Defendant received a letter from Plaintiff's counsel with a copy of Nationwide's letter notifying Defendant of Nationwide's tender of its liability limits and forwarding correspondence regarding total bills paid by Waggoner Manufacturing's workers' compensation carrier, Hartford, to date. After receiving this notification, Defendant notified Plaintiff via a letter dated April 20, 2009, that Defendant elected not to advance Nationwide's tender, choosing instead to waive its subrogation rights against Ms. Corriher. This correspondence also included a request to interview Plaintiff regarding the facts and circumstances surrounding the accident and a request for copies of all medical bills and records.

On July 14, 2009, Plaintiff's counsel sent Defendant a disc containing copies of what the accompanying letter described as “preliminary billing statements,” which contained approximately 1,100 pages of medical records and medical bills totaling $457,258.60 for treatment received by Plaintiff as a result of the crash. (Pl.'s Mot. for Partial Summ. J. Ex. 3 [Doc # 82–3] ). The letter also requested that Defendant advise Plaintiffs counsel “as to Penn National's settlement position in this matter.” Id. In addition to sending Defendant these medical bills in July of 2009, Plaintiff sent Defendant at least two updates detailing the amount of medical expenses that had been paid to Plaintiff by Hartford as a proximate result of the accident. Defendant's claim log indicates that Defendant was also in regular communication with Hartford, the workers' compensation carrier, regarding Plaintiff's claim. By November 23, 2009, Hartford had paid Plaintiff $590,620.66 in medical bills and indemnity payments, and this information was provided to Defendant via correspondence on January 29, 2010. Throughout this time, Defendant documented and sought to verify allegations regarding the merits of Plaintiff's claim, including allegations of steroid use outside of a doctor's supervision, that Plaintiff was working a “side job,” and questions of whether Plaintiff's later heart attack and diabetes diagnosis were related to or caused by the collision.

On February 16, 2010, Plaintiff's counsel had a phone conversation with Defendant's representative wherein Defendant perhaps implied that it would not consider evaluating Plaintiff's claim until Plaintiff reached maximum medical improvement. Following this phone conversation, on March 1, 2010, Plaintiff's counsel sent a letter to Defendant requesting mediation in March or April of 2010. On March 12, 2010, Defendant responded that it was potentially willing to enter into voluntary mediation, but the medical information received in July of 2009 was incomplete and Plaintiff's claim could not be evaluated until Defendant received more information. Specifically, Defendant stated that Plaintiff had provided “incomplete notes regarding his care after his discharge from the hospital on August 13, 2007 ... no records from his rehab stay, incomplete office and clinic visit information up to and including July of 2008, and no records thereafter.” (Pl.'s Mot. for Partial Summ. J. Ex. 7 [Doc # 82–7].) Further, the letter acknowledged that the potential voluntary mediation between Defendant and Plaintiff might occur “if the [w]orker[s'] [c]ompensation carrier was in agreement and in a position to resolve their lien.” Id.

On March 15, 2010, after receiving Defendant's March 12, 2010 correspondence, Plaintiff's counsel sent a letter to Defendant acknowledging that more documents were available regarding the nature and extent of Plaintiff's treatment, but the letter also noted that such additional documentation was not necessary to fairly evaluate the extent of Plaintiff's damages. (Pl.'s Mot. for Partial Summ. J. Ex. 8 [Doc. # 82–8].) Further, the letter requested that Defendant forward a medical release authorization for Plaintiff to sign to give Defendant direct access to Plaintiff's medical information. It also included a formal demand for arbitration and designated Plaintiff's arbitrator.

Plaintiffs counsel had indicated her continuing concern about the statute of limitations running against the tortfeasor, Ms. Corriher, in several communications with Defendant. Specifically, Plaintiff's counsel asserted that she was “prepared to initiate a lawsuit against Ms. Corriher personally if [Defendant did] not agree to waive any defenses relating to a statute of limitations.” (Pl.'s Mot. for Partial Summ. J. Ex. 10 [Doc. # 82–10]; see also Ex. 9 [Doc. # 82–9], Ex. 12 [Doc. # 82–12].) Defense counsel was under the impression that the demand for arbitration, as contained in the March 15, 2010 letter, would toll the requisite statute of limitations as to any civil action that could be filed by Plaintiff, but acknowledged that often plaintiffs' counsel will “err on the side of caution” by filing suit. (Pl.'s Mot. for Partial Summ. J. Ex. 12 [Doc. # 82–12], at 1–3.) ¹ Defendant did not agree to waive a statute of limitations defense, and in turn, Plaintiff filed a civil action against Ms. Corriher on June 30, 2010, as Plaintiff's counsel believed it was necessary in order to toll the statute of limitations. Shortly after Plaintiff filed the civil action, Defendant served Plaintiff with a set of discovery requests, which Plaintiff formally provided discovery responses for on September 3, 2010. These discovery responses contained materials detailing accident-related medical expenses totaling $727,753.32. Thereafter, Plaintiff was deposed in this matter on October 9, 2010.

Following the discovery requests relating to the pending tort action, an arbitration hearing related to the insurance contract was set for January 18, 2011. Before arbitration, on January 12, 2011, Defendant made its first settlement offer to Plaintiff of $525,000. Defendant adopted its defense counsel's strategic choice not to explain how its offer was calculated. In fact, Defendant...