Thompson v. Allstate Ins. Co.
| Decision Date | 27 December 2019 |
| Docket Number | Case No. 2:17-CV-181 JCM (VCF) |
| Citation | 431 F.Supp.3d 1163 |
| Parties | Brenda THOMPSON , Plaintiff(s), v. ALLSTATE INSURANCE COMPANY , Defendant(s). |
| Court | U.S. District Court — District of Nevada |
Dennis Michael Prince, Kevin Thomas Strong, Prince Law Group, Jack F. DeGree, Burg Simpson Eldredge Hersh & Jardine, P.C., Tracy A. Eglet, Eglet Prince, Las Vegas, NV, Matthew L. Sharp, Matthew L. Sharp, Ltd., Reno, NV, for Plaintiff(s).
James P. Silvestri, Darlene M. Cartier, Pyatt Silvestri, Las Vegas, NV, for Defendant(s).
Presently before the court is plaintiff Brenda Thompson's ("plaintiff") motion for partial summary judgment regarding "no reasonable basis to refer Mrs. Thompson to the Special Investigation Unit." (ECF No. 68). Defendant Allstate Insurance Company ("defendant") filed a response (ECF No. 80), to which plaintiff replied (ECF No. 82).
Also before the court is plaintiff's motion for partial summary judgment regarding breach of the duty to cooperate. (ECF No. 70). Defendant filed a response (ECF No. 79), to which plaintiff replied (ECF No. 81).
Also before the court is defendant's motion for summary judgment. (ECF No. 72). Plaintiff filed a response (ECF No. 77), to which defendant replied (ECF No. 83).
Also before the court is plaintiff's motion to strike defendant's reply. (ECF No. 87). Defendant filed a response (ECF No. 89), to which plaintiff replied (ECF No. 90).
The instant action arises from a dispute regarding insurance payments for two motor vehicle accidents. Plaintiff was insured by defendant under an automobile policy that included $50,000 in medical payment coverage per incident. (ECF No. 68 at 2). On May 8, 2013, plaintiff was in a car accident. Id. Plaintiff was in a second car accident on January 23, 2014. Id. Plaintiff's complaint is scant on details, but she alleges that "[defendant] routinely denied [her] claims and unreasonably delayed in paying legitimate claims" pertaining to both accidents. (ECF No. 1 at 2).
Plaintiff received care from Dr. Marjorie Belsky at Integrated Pain Specialist ("IPS"). Id. Plaintiff alleges defendant refused and delaying paying Dr. Belsky, who refused to provide treatment to plaintiff due to the unpaid bills. Id. Meanwhile, defendant was investigating—and ultimately filed suit against—Dr. Belsky for defrauding patients and insurers by providing unnecessary medical care to patients and submitting false billings to insurers. Id. at 3.
Plaintiff was seeing Dr. Belsky "about once per month" for treatment. (ECF No. 77 at 6). However, defendant closed plaintiff's May 8 claim on January 9, 2014. Id. Defendant claims that it received a bill for treatment on November 4, 2013, and did not receive any information suggesting that plaintiff was still seeing Dr. Belsky thereafter. (ECF No. 72 at 16). Defendant argues that it properly closed coverage on that basis. Id.
Defendant represents that "there would be no prohibition of re-opening the coverage should additional facts be made known to the adjuster." Id. Defendant further argues that "[h]ad additional bills been received, there was nothing keeping [defendant] from reopening the first claim." (ECF No. 83 at 4). However, defendant "specifically instructed IPS of the new claim number related to the second accident." (ECF No. 72 at 15–16). After the first claim was closed, Dr. Belsky "submitted a number of its bills following the second accident under the first claim number." Id. at 16. Although there was supposedly no prohibition on re-opening the first claim, defendant kept the May 8 claim closed.
Defendant then referred plaintiff's insurance claims to the "special investigation unit" ("SIU"), which was designated to investigate suspicious claims. (ECF No. 80 at 5). Defendant "does not deny that it has a special investigation unit to investigate suspicious claims, that it investigated Belsky's business practices, or that it referred [plaintiff's] claims ... to the SIU for investigation because she was receiving treatment from Belsky." Id. at 5–6.
The SIU never reviewed any of Dr. Belsky's medical records. (ECF No. 77 at 8). Nonetheless, the SIU retained Dr. Robert Berry to perform record reviews of plaintiff's file. Id. at 9. Although defendant did not provide Dr. Berry with complete medical records, Dr. Berry did not criticize Dr. Belsky's medical care. Id. The SIU requested an independent medical exam, but later submitted plaintiff's file for a second record review. Id. at 10. Once again, defendant did not provide the reviewing doctor, Dr. Andrew Kim, with complete records. Id. Like Dr. Berry, Dr. Kim did not criticize Dr. Belsky's treatment. Id.
The SIU again demanded that plaintiff submit to an independent medical exam. Id. at 11–12. Dr. Cesar Estela performed the medical exam and, like Drs. Berry and Kim, did not criticize Dr. Belsky's treatment. Id. at 12. However, Dr. Estela concluded that plaintiff had reached "maximum medical improvement" ("MMI") on her claim, meaning "medical treatment would not improve [plaintiff's] underlying medical condition." Id. Defendant closed plaintiff's claim accordingly. Id. Plaintiff argues, however, that MMI "was not a condition to medical payment coverage" under her policy. Id.
The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed. , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, to be entitled to a denial of summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Id.
In determining summary judgment, a court applies a burden-shifting analysis. The moving party must first satisfy its initial burden. C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. , 477 U.S. at 323–24, 106 S.Ct. 2548 . If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co. , 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 631 (9th Cir. 1987).
In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex , 477 U.S. at 324, 106 S.Ct. 2548 .
At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505 . But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505 .
As an initial matter, the court denies plaintiff's motion to strike defendant's reply or, in the alternative, supplement the record. (ECF No. 84). Plaintiff's motion is tantamount to a surreply, which is "not permitted without leave of court," and "motions for leave to file a surreply are discouraged." LR 7-2(d). To be clear, plaintiff argues that portions of defendant's reply should be stricken because they consist of new arguments not raised in the initial motion. (See generally ECF No. 84). Plaintiff then addresses each of the new arguments before concluding that they should be stricken or, alternatively, plaintiff should be able to file another opposition. Id.
The court finds that defendant's reply is responsive to plaintiff's opposition and, to the extent...
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