In re Colombo

• Decision Date: 09 June 2005
• Docket Number: Bankruptcy No. 04-03139M.
• Citation: 325 B.R. 587
• Parties: Michael J. COLOMBO and Doris J. Colombo, Debtors.
• Court: U.S. Bankruptcy Court — Northern District of Iowa

325 B.R. 587

Michael J. COLOMBO and Doris J. Colombo, Debtors.

Bankruptcy No. 04-03139M.

United States Bankruptcy Court, N.D. Iowa.

June 9, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark D. Sherinian, W. Des Moines, IA, for the debtor.

Larry S. Eide, Mason City, IA, Chapter 7 Trustee.

Hugh J. Cain, Des Moines, IA, for Crawford & Co.

MEMORANDUM DECISION

WILLIAM L. EDMONDS, Bankruptcy Judge.

The matter before the court is the trustee's motion to compromise Michael J. Colombo's claims against Crawford & Co., debtor's former employer. Prior to filing the petition in this case, Colombo had commenced an action in the United States District Court for the Southern District of Iowa, alleging employment discrimination and retaliatory discharge. Crawford & Co. has offered to settle the claims with the trustee for $20,000.00.

Hearing on the motion was held March 22, 2005. Larry S. Eide, Chapter 7 trustee, appeared on his own behalf. Hugh J. Cain represented Crawford & Co. Mark D. Sherinian appeared as attorney for the debtor.

The court has jurisdiction of this matter under 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a), and the District Court's order of reference. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).

The Record

At the hearing, the trustee offered the testimony of Mark McCluskey, a Crawford & Co. manager. The trustee also offered as Exhibit 1 portions of the transcript of a deposition taken of Colombo on June 16, 2004. Counsel for Colombo objected to submission of a partial transcript. The court provided the parties time to file briefs and to submit the full deposition transcript with exhibits.

On April 1, 2005, counsel for Crawford & Co. filed a brief in support of the trustee's motion (doc. # 24). Attached as an exhibit to the brief was a copy of a letter dated November 14, 2001 addressed to Crawford & Co. from attorney James Fitzsimmons. On April 12, 2005, counsel for Colombo filed a brief in support of his objection to the motion with several attachments (doc. # 28). Attachment 1 is a "Functional Capacity Evaluation" dated April 15, 2002. Attachments 2 and 3 are the transcript of Colombo's June 16, 2004 deposition without exhibits. Attachment 4 is a December 18, 2002 ruling in an unemployment benefits appeal. Attachments 5, 6, 7, and 8 are the transcript of a December 16, 2002 hearing in an unemployment benefits appeal. On April 22, 2005, counsel for Crawford & Co. filed a reply brief (doc. # 29). On May 10, 2005, counsel for Colombo submitted copies of the deposition exhibits to chambers.

The court will consider all attachments to the briefs, because neither party will be prejudiced thereby. Moreover, the electronic filing of the transcript of Colombo's deposition is the only submission of that document to the court.

Findings of Fact

Michael Colombo, age 53, lives with his wife in Mason City. They have two adult children. Colombo is a high school graduate. He was in the auto body repair business for several years and once co-owned an auto body shop in Mason City. Later he began doing auto appraisals and acquired an auto appraisal franchise.

In January 1992 Colombo was hired as an auto appraiser by Crawford & Co., a national insurance adjustment firm. Colombo worked out of his home in Mason City and commuted to the firm's Waterloo office. His supervisor was in the firm's Des Moines office. After a few years at Crawford & Co., Colombo's work changed somewhat. He began doing more appraisals of commercial and residential buildings than vehicle appraisals. In 2000 he was promoted to "commissioned adjuster-in-charge."

Crawford & Co. requires its adjusters to account for their activities and expenses on a "daycard." A daycard is to be filled out and faxed to the branch office each day. The firm uses the daycards to calculate expenses charged to their insurance company clients. Crawford & Co. has various agreements with its clients for billing mileage charges. Some clients pay for all miles driven by the adjuster handling their files. Others receive a certain number of "free" miles; they will not be charged for mileage unless the adjuster drives more than that number of miles. Colombo referred to a client's free miles as "perimeter miles."

When Colombo was hired, a supervisor showed him how to fill out a daycard. Colombo said he was instructed by his branch managers to enter perimeter miles on his daycard, as needed, in order to cover his expenses, including his mileage for commuting between Mason City and Waterloo. Deposition at 47-52. This procedure allowed him to be reimbursed for actual expenses without charging them to a client. Colombo said he was not reimbursed for all the miles he actually drove. Chuck Runcie was his manager in 1992. Russ Wolf became his manager in 1998.

While Colombo was employed by Crawford & Co., adjusters were reimbursed six cents per mile for driving company cars and forty cents per mile for driving their own vehicles. Colombo said Wolf authorized using perimeter miles also to cover the expense of using a personal vehicle. Deposition at 78. When Colombo used his own vehicle, he requested reimbursement at the lower company car rate using perimeter miles, rather than at the higher rate. He did this to avoid paperwork; it involved "less of a hassle." Deposition at 73-75. Using perimeter miles rather than actual miles was a convenience that helped him complete large numbers of files quickly. Id. at 68, 88.

Colombo said he used his own equipment because the company car provided by Crawford & Co. was too small to accommodate the equipment needed for the job. After a hail storm in 2002, Colombo hired a "bucket truck" that lifted him to the roof of houses. He paid the truck rental himself. He did not ask his manager if he could hire the truck and did not ask Crawford for reimbursement. Id. at 96-97.

In January 2002, Crawford & Co. changed its policy regarding billing clients. The evidence did not disclose how the new policy differed from the former one. However, adjusters were instructed never to charge more than actual travel time and mileage. If a trip involved multiple appointments, the total time and mileage were to be applied pro rata to each appointment.

Colombo attended a meeting explaining the new policy. Colombo said he asked Wolf at that time how the new policy would affect him, and Wolf said it would not affect him. Deposition at 84-85.

Wolf left Crawford & Co. at the end of May 2002. Mark McCluskey became branch manager in June 2002. Shortly thereafter, Colombo had a discussion with McCluskey about billing for mileage. He claims that McCluskey gave him permission to continue using the billing method that Wolf had approved. Deposition at 79-82. He admitted he was not in compliance with the terms of the new policy. Id. at 84.

Sometime in September, McCluskey began examining Colombo's daycards more closely. He noticed that Colombo consistently entered round numbers for his mileage. McCluskey found discrepancies in several instances between the mileage Colombo had entered on his daycard and McCluskey's estimate of the distance from Colombo's house to the client's location. McCluskey determined that Colombo was over-charging Crawford & Co. for mileage expenses. McCluskey did not give Colombo a warning or progressive discipline. On September 27, 2002, McCluskey and Rick Molden, a casualty adjuster in the Des Moines office, came to Colombo's home. McCluskey told Colombo he was terminated.

Columbo said in his deposition that his daycards did not reflect greater expenses than he had actually incurred. In one situation, the client's place of business was just a few miles from his house, but Colombo entered 60 miles on his daycard for each of several vehicle appraisals done for the client. Colombo explained that the vehicles were not located at the client's place of business. He drove to other towns to view the vehicles. Deposition at 61-68. In another situation, he entered perimeter miles on his daycard to cover expenses for using a personal vehicle. Id. at 73.

Crawford & Co. contested Colombo's right to receive unemployment benefits, contending he was discharged for misconduct. In December 2002, an administrative law judge for the Iowa Workforce Development determined Colombo was not disqualified from receiving benefits. The findings in those proceedings are not binding on this court. Iowa Code § 96.6(4).

In August 1998 while doing an appraisal, Colombo fell from the roof of a two-story building and injured his left shoulder. He had surgery in March 1999 and again in October 1999. After his first surgery, he was given a lifting restriction. Deposition at 137.

Dr. Raymond L. Emerson released Colombo for work January 17, 2000 without restriction. Dr. Emerson examined Colombo at the Mason City Clinic on July 14, 2000. He made the following narrative report:

Michael is about a year and a half after attempted superior labrum anterior posterior (SLAP) lesion repair, approximately 9 months after re-repair and open rotator cuff exploration and decompression. He has also been seen at the University of Iowa for a second opinion. In general, the patient feels better than when I last saw him. His problem comes from not being able to golf very comfortably. When he has his arm on the steering wheel it causes some discomfort. If he sleeps on that side, he will occasionally have some pain, but nothing that he can not tolerate. He is able to sleep at night and is not taking pain medications. He has been back to work.

Colombo's worker's compensation claim was handled by Debbie VanBlaricom in Crawford & Co.'s Davenport office. In a letter dated July 14, 2000, Dr. Emerson reported to Ms. VanBlaricom: "It is difficult to know if [Colombo] has reached maximum medical improvement yet, but I suspect he has.... I have to make an estimate of his impairment, which would equal 20% of the upper extremity."

On April 15, 2002, Colombo received a Functional Capacity...