Hayes v. Acuity
| Decision Date | 20 March 2020 |
| Docket Number | CIV. 17-5015-JLV |
| Parties | KEVIN HAYES, Plaintiff, v. ACUITY, a Mutual Insurance Company, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff Kevin Hayes filed a multi-count complaint against the defendant Acuity. (Docket 1). The causes of action alleged in plaintiff's complaint are count I, bad faith; count II, barratry; count III, abuse of process; and count IV, conversion. Id. The complaint seeks compensatory damages, punitive damages and attorney's fees. Id. at pp. 12-13. Acuity filed an answer denying the allegations in plaintiff's complaint. (Docket 9).
Acuity filed a motion for summary judgment together with a legal memorandum, a statement of undisputed material facts and an affidavit with three exhibits. (Dockets 25-28 & 28-1 through 28-3). Plaintiff filed a response to defendant's motion for summary judgment together with a statement in response to defendant's statement of facts, an affidavit and 12 exhibits. (Dockets 32-33, 33-1 through 33-12 & 37). Acuity filed a reply brief together with an affidavit and 11 exhibits. (Dockets 38, 39 & 39-1 through 39-11).
Plaintiff filed a motion for partial summary judgment together with a legal memorandum and a statement of undisputed material facts. (Dockets 34-36). Defendant filed a response to plaintiff's motion for summary judgment. (Docket 41). Plaintiff filed a reply brief in support of his motion. (Docket 43).
One day later, Acuity filed a motion for leave to file a response to plaintiff's statement of uncontested facts together with defendant's proposed response and a legal memorandum. (Dockets 44, 44-1 & 45). Plaintiff filed a response to defendant's motion for leave to file a response.1 (Docket 46). Defendant filed a reply brief in support of its motion. (Docket 47).
For the reasons stated in this order, defendant's motion for summary judgment is denied; plaintiff's motion for partial summary judgment is granted; defendant's motion for leave to file a response to plaintiff's statement of uncontested facts is granted; and plaintiff's motion to file a sur-reply brief is denied as moot.
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if the movant can "show 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). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at p. 248. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to "make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of thenonmoving party's case necessarily renders all other facts immaterial." Id. at p. 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at pp. 251-52.
The following recitation consists of the material facts developed from the complaint (Docket 1), defendant's answer (Docket 9), the parties' statements of undisputed material facts (Dockets 27 & 37) and other evidence where indicated. Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. These facts are "viewed in the light most favorable to the [party] opposing the motion." Matsushita Elec. Indus. Co., 475 U.S. at 587.
The facts material to defendant's motion for summary judgment are as follows. At all times material to this proceeding, Kevin Hayes was employed by Rosenbaum Signs & Outdoor Advertising, Inc. ("Rosenbaum"). (Docket1 ¶ 5). Acuity was the workers' compensation insurance carrier for Rosenbaum. Id. ¶ 6.
Mr. Hayes had a history of low back problems. (Docket 27 ¶ 1). His medical history includes degenerative disk disease. (Docket 37 ¶ 2). In 1989, Mr. Hayes sustained a work-related injury while working for the postal service. (Docket 27 ¶ 3). This injury resulted in a multilevel fusion surgery in 1991. Id. This injury was covered by a federal workers' compensation claim and Mr. Hayes continues to receive a federal disability annuity payment because of his inability to return to work with the postal service. Id. He continued to have pain from the 1989 injury and took medication but was eventually able to return to the work force. Id. ¶ 4.
In May 2005, Mr. Hayes began working as a sign installer for Rosenbaum. Id. ¶ 5. In March 2007, Mr. Hayes suffered a work injury to his lower back. (Docket 1 ¶ 8). He sought treatment with Dr. Christopher Dietrich at The Rehab Doctors. (Docket 27 ¶ 7). His initial complaints were pain in his upper back and shoulder blades and he was diagnosed with a thoracic strain. Id. Later in his treatment with Dr. Dietrich, Mr. Hayes complained of low back pain. Id. Dr. Dietrich treated plaintiff and prescribed physical therapy, multiple injections and pain medication to address his complaints of back and leg pain. Id. ¶ 8. Mr. Hayes ended his employment with Rosenbaum despite being able to perform his job duties without accommodation. Id. ¶ 9. After leaving Rosenbaum, Mr. Hayesstarted work at the Rapid City landfill as an operator running bailers, loaders and other equipment. Id. ¶ 10.
On October 4, 2007, Mr. Hayes was seen for an independent medical examination ("IME") with Dr. Dale Anderson.2 Id. ¶ 11; see also Docket 37 ¶ 11. Dr. Anderson's IME report concluded the 2007 work injury was the major contributing fact to Mr. Hayes' condition. (Docker 37 ¶ 12). Acuity posed questions to Dr. Anderson. To the question "is the accident of March 27, 2007, the major contributing factor to Mr. Hayes' present medical condition and need for treatment?" Dr. Anderson responded "yes." Id. (internal reference omitted).
Based on Dr. Anderson's report, Acuity denied medical treatment benefits to Mr. Hayes. (Docket 27 ¶ 13). Mr. Hayes filed a petition for hearing with South Dakota Department of Labor, Division of Labor and Management ("DOL") on May 13, 2009, to challenge the denial of additional medical benefits. Id. ¶ 14.
Dr. Anderson was deposed on March 30, 2010. (Docket 1 ¶ 16). Dr. Anderson testified Mr. Hayes' low back condition was 50 percent caused by his pre-existing low back fusion in 1991 and 50 percent caused by the 2007injury. Id. ¶ 17. After Dr. Anderson's deposition, on July 30, 2010, Acuity filed an amended answer with the DOL admitting that Mr. Hayes' "work activities are currently a major contributing cause to his current need for medical treatment or low back pain." Id. ¶ 20. On August 3, 2010, the DOL dismissed Mr. Hayes' case stating among other things:
The Employer and Insurer, having filed an Amended Answer, and having admitted items in controversy as set out in the Petition, and the parties having agreed that controversy or dispute no longer exists in this matter, at this time, IT IS HEREBY: ORDERED that the above-captioned matter be dismissed without prejudice.
On May 2, 2011, Acuity required Mr. Hayes to see Dr. Nolan Segal for a second IME.3 (Docket 1 ¶ 33). On August 5, 2011, based upon Dr. Segal's IME, Acuity denied further medical benefits to Mr. Hayes. Id. ¶ 40.
Mr. Hayes filed a second petition for a hearing with the DOL. (Docket 27 ¶ 22). At the DOL hearing, Mr. Hayes offered by affidavit the medical opinions of Dr. Christopher Dietrich together with his treatment records. Id. ¶ 23. Acuity presented Dr. Segal's deposition at the hearing. Id. ¶ 24. The DOL concluded Dr. Segal's opinions should be given greater weight than the opinions of Dr. Dietrich because Dr. Segal had access to the entire medical record. Id. ¶ 25. The DOL determined Mr. Hayes was inconsistent in reporting his medical history to his treating physicians and the opinion of Dr.Segal was based on a more solid foundation than the opinion of Dr. Dietrich. Id. ¶ 27. The DOL found Mr. Hayes' medical records documented consistent complaints of pain which predated the 2007 work injury. Id. ¶ 28. The DOL concluded Dr. Dietrich was not aware of the medical records documenting complaints of low back pain and lower extremity pain predating the 2007 injury. Id. ¶ 29. The DOL found Mr. Hayes' medical records identified factors impacting his reported participation in recreational activities which had not been considered by Dr. Dietrich. Id. ¶ 30. The DOL accepted the opinions of Dr. Segal over the opinions of Dr. Dietrich. Id. ¶ 31. On April 17, 2013, the DOL issued findings of fact, conclusions of law and a decision favorable to Acuity. Id. ¶¶ 32-33.
Mr. Hayes appealed the DOL...
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