Liberty Ins. Corp. v. Tutor

• Court: Mississippi Court of Appeals
• Writing for the Court: CARLTON, P.J., FOR THE COURT
• Citation: Liberty Ins. Corp. v. Tutor, 309 So.3d 493 (Miss. App. 2019)
• Decision Date: 29 October 2019
• Docket Number: NO. 2018-CA-00091-COA,2018-CA-00091-COA
• Parties: LIBERTY INSURANCE CORPORATION, Appellant v. Anthony Lee TUTOR, Appellee

309 So.3d 493

LIBERTY INSURANCE CORPORATION, Appellant

v.Anthony Lee TUTOR, Appellee

NO. 2018-CA-00091-COA

Court of Appeals of Mississippi.

October 29, 2019

Rehearing Denied April 7, 2020

ATTORNEYS FOR APPELLANT: CLIFFORD KAVANAUGH BAILEY III, GREGG A. CARAWAY, RIDGELAND

ATTORNEYS FOR APPELLEE: LANCE L. STEVENS, RODERICK D. WARD III, JACKSON

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Anthony Lee Tutor filed a complaint against Liberty Insurance Corporation (Liberty); United Parcel Service Company and United Parcel Service Inc. (collectively UPS); UPS business manager April Dallas; and UPS supervisor Bonnie King seeking extra-contractual compensatory damages and punitive damages for the alleged bad-faith handling of Tutor's prior workers' compensation claim.

¶2. After a trial on the matter, the jury awarded Tutor extra-contractual damages in the amount of $100,000. The jury also returned a verdict finding in favor of Tutor on his claim for punitive damages, but the jury did not assess a monetary award against Liberty for punitive damages. After the trial, UPS and Tutor reached a confidential settlement of Tutor's claim against UPS. UPS is not a party in this appeal.

¶3. Liberty now appeals, arguing that the evidence presented at trial was insufficient to support the jury's verdict that Liberty is liable to Tutor for extra-contractual damages and that the evidence was insufficient to support the punitive damages award. Liberty also argues that the trial court erred in admitting Lydia Quarles's expert testimony.

¶4. We find that in applying precedent to this case, Tutor failed to meet his burden to prove extra-contractual damages because the record reflects that Liberty possessed an arguable good-faith basis for its delay in paying Tutor's claim.¹ Accordingly, the evidence presented at trial was insufficient to support the jury's verdict. We therefore reverse the jury's verdict and render a verdict in favor of Liberty.

FACTS

¶5. Tutor worked as a package driver for UPS. At the time, Liberty was the workers' compensation carrier for UPS. On September 1, 2011, Tutor injured his back while walking upstairs to deliver a package.

¶6. After the injury occurred, Tutor immediately called his UPS business manager, April Dallas, and informed her that he injured his back and would not be able to finish his route. Dallas advised Tutor that she would bring another UPS supervisor Gary Bishop to meet Tutor and help him with the remainder of his route. Dallas also advised Tutor to call her when he returned to the UPS facility.

¶7. When Bishop and Tutor returned to the Columbus facility that evening, they called Dallas to discuss what happened. During the phone call, Bishop and Tutor informed Dallas about the circumstances regarding Tutor's injury—that Tutor was carrying a box up some stairs to make a delivery when a dog startled him and he twisted and hurt his back.² Dallas advised Tutor to seek medical treatment and informed him that due to the late hour, he would need to go to the emergency room because medical clinics would be closed. Tutor told Dallas that he would prefer to seek treatment from his personal physician the next day. Tutor also told Dallas that prior to this injury, he had been receiving treatment from a chiropractor. Dallas testified that based on this second phone conversation with Tutor, she determined that Tutor was suffering from a previous injury and that the injury he suffered after the dog startled him was not work related. As a result, Dallas did not report Tutor's injury to Liberty.

¶8. The record contains extensive medical evidence from various physicians regarding Tutor's injury as well as evidence of the medical treatment Tutor received for back pain he suffered prior to this injury. On September 2, 2011, the day after his injury, Tutor sought treatment from his family-medicine doctor, Dr. Brad Crosswhite. At his appointment, Tutor informed Dr. Crosswhite that he sustained back pain "when he was walking up a flight of stairs ... while he was carrying a box and heard a dog bark and he twisted his back[,] immediately feeling pain in his back." Dr. Crosswhite also noted that Tutor "is seeing a chiropractor weekly for [a] problem in the same spot in this thoracic vertebrae."³ Dr. Crosswhite referred Tutor to receive an MRI of his thoracic spine and recommended that Tutor stay off of work from September 15–30, 2011.

¶9. Despite Tutor's complaint of back pain, the MRI results revealed no objective injury. Dr. Crosswhite testified that the MRI results were normal and that "the only thing out of the normal" on the MRI results were degenerative changes to Tutor's thoracic spine. Dr. Crosswhite explained that "degenerative" means "wear or tear or arthritic changes."⁴ Dr. Crosswhite clarified that "[t]here is no objective finding anatomically on this MRI that ... would explain the cause of [Tutor's] pain or the degree of his pain." Dr. Crosswhite cautioned, however, that "MRI findings are not always consistent with a patient's physical complaints."⁵

¶10. Tutor testified that he attempted to return to work on September 6, 2011 and September 12, 2011, shortly after his injury, but he was unable to work due to his back pain. Tutor testified that on approximately September 15, he received a call from Dallas. According to Tutor, Dallas informed him that he was not going to be able to continue working partial days. Instead, Tutor would either have to come back to work full time or file for short-term disability. Tutor testified that he told Dallas that "you and I both know this should be [workers' compensation]." Tutor said that Dallas responded, "No, this is previous injury," and she again told him that he could return to work full time, call the union, or file for short-term disability.

¶11. Tutor testified that he then called Rhonda Rutherford at the union hall in Jackson, Mississippi, and informed Rutherford about his injury. According to Tutor, Rutherford opined that he should be entitled to workers' compensation benefits, but she told Tutor that she would instead try to get him short-term disability. Rutherford then filled out a form on Tutor's behalf and applied for short-term disability. The form bears a signature purporting to be Tutor's signature, but the evidence reflects that Rutherford signed the form on Tutor's behalf.

¶12. The short-term-disability application form also contains Dr. Crosswhite's signature. The record reflects that Rutherford completed, signed, and dated the "Member's Statement" section of the short-term-disability application form for Tutor prior to sending the application to Dr. Crosswhite. Dr. Crosswhite indicated on the form that Tutor's disability was not work related.⁶ Tutor's short-term disability application was approved, and for the next six months, from September 22, 2011, until March 21, 2012, he received short-term disability benefits.

¶13. On September 15, 2011, Tutor saw Aaron Ford, a physical therapist. Ford recommended physical therapy for Tutor one-to-two times a week for four weeks in order to treat Tutor's back pain. Tutor's physical therapy records reflect that Tutor experienced decreased pain in his back in response to his therapy sessions. The records from Tutor's September 29, 2011 appointment state that "physical therapy services are discontinued at this time secondary to: goals have been met." Ford discharged Tutor from physical therapy on September 29, 2011. Ford's discharge summary for Tutor reflects that Tutor "has met all goals for therapy. [Tutor] states that he has no pain and if he does, he knows what to do to relieve this pain."

¶14. Tutor returned to see Dr. Crosswhite on October 13, 2011, complaining of back pain. Dr. Crosswhite's records from this appointment reflect that Tutor had returned to work and that his back pain "started up again." Dr. Crosswhite referred Tutor for more physical therapy.

¶15. In October 2011, Tutor again received physical therapy, this time from Mark Bresee. Bresee's notes reflect that during his treatment of Tutor, Tutor responded well to physical therapy, though Tutor "consistently" reported pain associated with driving.

¶16. On November 2, 2011, Tutor returned to see Dr. Crosswhite. At this appointment, Tutor complained that although he had been going to physical therapy for three weeks, he had not experienced any relief from his back pain. According to his notes, Dr. Crosswhite informed Tutor that he now has limited treatment options. Dr. Crosswhite stated that he had "a very long discussion" with Tutor about his options. Dr. Crosswhite also spoke "at length with a radiologist who has reviewed his films and has reassured that there is no evidence of soft tissue mass or abnormal vertebrae or discs." The radiologist also confirmed to Dr. Crosswhite that Tutor's MRI was normal. Dr. Crosswhite offered to refer Tutor to a pain clinic.

¶17. On November 10, 2011, Tutor received treatment from nurse practitioner Dawn Frans at North Mississippi Neurosurgical Services. According to Frans's records, Tutor complained of "mid-back pain" that he had suffered from "in a nagging form for over [ten] years." Frans's records further reflect that Tutor twisted his back while delivering a package, and a knot appeared in his back. Frans's record contains a section asking "Is this [workers'] comp?" and Frans typed "No" in response. Frans recommended that Tutor receive a steroid injection. Despite the injection, Tutor did not experience any relief from his back pain. Frans then referred Tutor to Dr. Laura Gray.

¶18. In the interim, Tutor returned to Dr. Crosswhite on January 16, 2012, complaining of back pain that was too severe for Tutor to report to work.

¶19. Tutor first saw Dr. Laura Gray, a physiatrist specializing in physical medicine and rehabilitation, on February 1, 2012. According to Dr. Gray's notes, Tutor complained of back pain "to the right of the thoracic spine centered in the muscles." At that appointment, Dr. Gray noticed "a raised area to the...