Tovares v. Gallagher Bassett Servs., Inc., CIV. 16-5051-JLV

• Decision Date: 30 March 2019
• Docket Number: CIV. 16-5051-JLV
• Citation: 379 F.Supp.3d 791
• Parties: Annie TOVARES, Plaintiff, v. GALLAGHER BASSETT SERVICES, INC., and Praetorian Insurance Company, Defendants.
• Court: U.S. District Court — District of South Dakota

379 F.Supp.3d 791

Annie TOVARES, Plaintiff,

v.GALLAGHER BASSETT SERVICES, INC., and Praetorian Insurance Company, Defendants.

CIV. 16-5051-JLV

United States District Court, D. South Dakota, Western Division.

Signed March 30, 2019

Michael C. Abourezk, Abourezk Law Firm, Michael J. Simpson, Julius & Simpson, L.L.P., Rapid City, SD, Daniel E. Holloway, Bell Law Firm, Atlanta, GA, for Plaintiff.

J. Crisman Palmer, Sara Frankenstein, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD, Deanne C. Ayers, Pro Hac Vice, Ayers & Ayers, Colleyville, TX, for Defendants.

ORDER

JEFFREY L. VIKEN, CHIEF JUDGE

INTRODUCTION

Plaintiff Annie Tovares filed an action against the defendants Gallagher Bassett Services, Inc., and Praetorian Insurance Company alleging bad faith and misrepresentation in violation of South Dakota law. (Docket 1). Defendants filed separate answers to plaintiff's complaint.¹ (Dockets 37 & 39). Defendants filed a motion for summary judgment, together with a brief, an affidavit with nine exhibits and defendants' statement of undisputed material facts. (Dockets 62, 63, 64, 64-1 through 64-9 & 65). Plaintiff filed a responsive brief, together with plaintiff's response to defendants' statement of undisputed facts with ten exhibits and plaintiff's declaration in support of Fed. R. Civ. P. 56(d) discovery.² (Dockets 67, 67-1 through 67-10, 68 & 70). Defendants filed a reply brief with one exhibit in support of their motion for summary judgment. (Dockets 72 & 72-1).

Plaintiff filed a motion seeking leave to file supplemental authority, a supporting brief and one case. (Dockets 78, 78-1 & 79). Defendants filed a brief in response to plaintiff's motion. (Docket 82).

For the reasons stated below, plaintiff's motion to file supplemental authority is granted, defendants' motion for summary judgment is granted in part and denied in part, and plaintiff's motion for Rule 56(d) discovery is denied as moot.

STANDARD OF REVIEW

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. "[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, 106 S.Ct. 2505 (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 her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 the nonmoving party's case necessarily renders all other facts immaterial." Id. at p. 323, 106 S.Ct. 2548.

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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505.

UNDISPUTED MATERIAL FACTS

The following recitation consists of the material facts developed from the complaint (Docket 1), defendants' answers (Dockets 37 & 39),³ the parties' statements of undisputed material facts (Dockets 65 & 67) and other evidence where indicated.⁴ 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, 106 S.Ct. 1348.⁵ The facts material to defendant's motion for summary judgment are as follows.

Plaintiff Annie Tovares works at Menards in Rapid City, South Dakota. (Docket 67-1 ¶ 1). On Wednesday, March 19, 2014, she fell at work. Id. ¶ 3. One of Menards' surveillance cameras recorded her fall.⁶ Ms. Tovares did not hit her head, but she immediately felt dazed, disoriented and like her brain got jarred. Id. ¶ 4. It took a few minutes to collect herself. Id. ¶ 5.

The following Tuesday, Ms. Tovares had a bloody nose at work and that night she had blurry vision and a sharp ringing in her ears. Id. ¶ 6; see also Docket 67-2 at p. 4. At work the following morning the lights hurt Ms. Tovares' eyes and head. (Docket 67-1 ¶ 7). She felt dizzy and was worried something serious happened because of her fall. Id. She spoke to her supervisor and went to the emergency room at the Rapid City Regional Hospital in Rapid City, South Dakota. Id.; see also Docket 67-2 at p. 4. After visiting the ER, Ms. Tovares went to see her ophthalmologist at Wright Vision Center. Id. ¶ 9; see also Docket 65 ¶ 29. As instructed by the ER physician, Ms. Tovares took a couple of days off work. (Docket 67-1 ¶ 14; see also Docket 65 ¶ 30).

Ms. Tovares' bill for the hospital services, CT scan

and ER activities totaled $ 2,513. (Dockets 67-2 at p. 71; 67-3 at p. 4). The bill from Wright Vision Clinic was $ 185. (Docket 67-3 at p. 6). Dakota Radiology billed Ms. Tovares $ 165. Id. at p. 3. Ms. Tovares borrowed money to pay the medical bills and submitted a worker's compensation claim for these expenses. (Docket 67-1 ¶ 15).

Defendant Praetorian Insurance Company ("Praetorian") issued a policy of worker's compensation insurance to Ms. Tovares' employer, Menards, Inc. (Docket 1 ¶ 6). Gallagher Bassett Services, Inc. ("GBS") is the claim administrator which handled Ms. Tovares' claim for Praetorian. (Docket 67-1 at p. 8).

Christina Manwaring was the adjustor assigned by GBS to handle Ms. Tovares' workers' compensation claim. (Docket 67-2). Ms. Manwaring's notes of her telephone contact with Ms. Tovares on March 31, 2014, contain plaintiff's description of her incident at Menards:⁷

She ws done, pulling a box off the cart, next she new she was on the floor. She's not sure how it happened. Thinks L. foot slipped, hit L. hip, L. underarm struck the box she was handling, and it was scraped and bruised. Initially she was in so much pain she couldn't believe it. The impact of her body hitting the concrete, maybe the weight of the box made her fall even harder. She did not strike her head, however once she stood up, he whole body was vibrating. She knows she jarred her brain. She just stood there to try and re-gain her "marbles" says she was in shock. Once the pain subsided, she felt fine. She didn't have any broken bones. Physically she feels fine. A week later, she began experiencing lightheadedness and dizziness. Equilibrium was off. Numerous time of ringing in her head. Went to doctor on 3/26, and doctor asked which ear was ringing, she couldn't tell. Vision is slightly blurry and pain in her head. She's been better the last few days. Went to ER on 3/26/2013 b/c that morning when she went to work the bright lights in the building hurt her head and eyes. While she was at ER, the did a CT scan

. They said everything was negative. But she

was highly disappointed in the hospital staff. Never asked to see her bruises, no x-rays of her body were done. She felt like they didn't believe what happened to her. Up until that day, she had had a sharp ringing in her head, then went away. That night she had some minor ringing in head, so she knows she jarred her brain and she knows that can cause problems down the road. She had a minor cold about a month ago. Does not suffer from allergies/sinus issues. She did receive a call the next day to see how she was feeling. FU with optimologist [sic] on 3/26/2014 and told her everything looked fine. She was concerned about the lens being dislodged.

(Docket 67-2 at p. 10; see also Docket 65 ¶ ¶ 3-7.).

ER records obtained by GBS contain the following history of Ms. Tovares present illness:

Patient is a 64-year-old female who presents with blurred vision. She states that a week ago she fell and landed on her left hip and left elbow. She denies shooting her head at that time. Over the past week since the fall she has had intermittent blurred vision and ringing in her years. She has also had an intermittent sharp headache but has not required medication as the heading duration he was very brief. She denies numbness, tingling, or weakness. No vertigo or lightheadedness. She denies pain otherwise. A month ago she saw ophthalmology and they stented her left tear duct for dry eye.

(Docket 67-2 at p. 57; see also Docket 65 ¶¶ 9-10). A CT scan

of Ms. Tovares' head reported "[v]entricles and sulci are normal. There is no intracranial hemorrhage or mass. No bony abnormality identified." (Docket 67-2 at p. 58). The CT report concluded "[n]ormal CT head." Id.; see

also Docket 65 ¶ 28. ER physician Dr. Donald Neilson charted "[t]he most likely cause of her symptoms is that they are related to a head injury. She is comfortable with discharge and will follow up with her primary physician." (Docket...