Willis v. Progressive Direct Ins. Co.

• Docket Number: CIV-22-349-SLP
• Decision Date: 21 December 2023
• Parties: BILLIE WILLIS, Plaintiff, v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

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BILLIE WILLIS, Plaintiff, v. PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.

No. CIV-22-349-SLP

United States District Court, W.D. Oklahoma

December 21, 2023

ORDER

SCOTT L. PALK UNITED STATES DISTRICT JUDGE

Before the Court are three related motions, all of which are at issue.First, PlaintiffBillie Willis filed his Motion for Partial Summary Judgment and Brief in Support[Doc. No. 69] to which DefendantProgressive Direct Insurance Company responded, see[Doc. No. 79], and Plaintiff replied see[Doc. No. 83].For the following reasons Plaintiff's Motion is DENIED.

Second Progressive filed a Motion for Summary Judgment[Doc. No. 71].Plaintiff responded, see[Doc. No. 77], but Progressive did not reply, and the time to do so has now passed.Progressive's Motion is GRANTED in part and DENIED in part, as set forth herein.

Finally, Plaintiff filed a Motion to Strike Summary Judgment Evidence and Brief in Support[Doc. No. 78], to which Progressive responded, see[Doc. No. 85].Plaintiff did not file a reply.This Motion is DENIED.

I.Governing Standard

“The court shall grant summary judgment if the movant shows 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).A dispute is only genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251(10th Cir.2015)(quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986)).And a fact is only material if it “might affect the outcome of the suit under the governing law.”Id.(quotingAnderson, 477 U.S. at 248).

When a court is “presented with cross-motions for summary judgment,” it “‘must view each motion separately,' in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor.”United States v. Supreme Ct. of New Mexico, 839 F.3d 888, 906-07(10th Cir.2016)(quotingManganella v. Evanston Ins. Co., 702 F.3d 68, 72(1st Cir.2012)).In reviewing Progressive's Motion, therefore, the Court considers the factual record and draws all inferences in the light most favorable to Plaintiff.

II.Undisputed Material Facts^[1]

On September 9, 2021, Plaintiff and nonparty Jessica Maddox were involved in a car accident.^[2]Plaintiff, who was injured in the accident, was not at fault.Plaintiff was transported to the emergency room following his accident, where he complained of pain and underwent several tests before being discharged.At the time of the accident, Plaintiff had an uninsured/underinsured (“UM/UIM”) policy with Progressive that provided coverage up to $25,000 per person.

On September 13, after Plaintiff returned home, he and his wife spoke with a Progressive representative about the details of the accident.The following day, Plaintiff's personal injury attorney, Kevin Bennett, emailed Ms. Maddox's liability insurer to advise that Plaintiff“suffered property damage and bodily injuries” in the wreck.[Doc.No. 71-19]at 2.^[3]About a month later, Progressive notified Plaintiff that his UM/UIM policy provided up to $25,000 in coverage if Ms. Maddox “d[id] not have insurance, or enough insurance to fully compensate [Plaintiff] for [his] injury.”[Doc.No. 71-20]at 2.Plaintiff continued to seek medical treatment through the end of December 2021.

On February 25, 2022, Mr. Bennett emailed Progressive, advising that the tortfeasor's insurer had agreed to tender the policy limits of $25,000, and that Plaintiff would be making a UM/UIM claim.^[4] That same day, Progressive “opened a UIM feature for Plaintiff” and assigned Michael Roell as the claim handler.[Doc.No. 71-24]¶ 2.Mr. Roell called Mr. Bennett that same day to discuss the claim.Mr. Bennett agreed to send the pertinent medical bills and advised that “Plaintiff had been a paraplegic for 40 years.”Id.Following their conversation, Mr. Roell sent a letter to Mr. Bennett confirming the existence of UM/UIM coverage and requesting, inter alia, “[a]ll medical bills relevant to this injury.”[Doc.No. 71-22]at 2.

Mr. Bennett replied to the letter on or about March 6, 2022, and “demand[ed] payment of the limits of [Plaintiff's] UIM coverage.”[Doc.No. 71-3]at 2.The letter attached a “medical summary” listing each treating provider, the date of service, and the “amount.”Id. at 6.EMSA was listed as a provider, but the amount was left blank.Mr. Bennett told Mr. Roell that this bill“didn't affect the overall value” of the claim.[Doc.No. 69-5]at 2.Similarly, the medical summary included a $540 charge for “Radiology.”[Doc.No. 71-3]at 6.Finally, although Plaintiff also received bills from Oklahoma Emergency Physicians LLC(“OEP”) and Walgreens, those bills were not included in the summary.

In addition to the summary, Mr. Bennett provided most of Plaintiff's medical bills, including one from Integris Baptist Hospital (“Integris”) that showed charges totaling $16,003.45.Seeid. at 7.As reflected on the bill, Plaintiff's health insurer, Blue Cross Blue Shield (“BCBS”), had applied $14,605.73 in “[a]djustments” and $1,253.09 in payments.Id.The outstanding patient balance owed was $144.63.Id.Mr. Bennett also included a HIPAA authorization form in the demand package, but Mr. Roell never attempted to get copies of Plaintiff's medical records from his providers.Finally, the demand package included an opinion from the providers at the Broadway Clinic that Plaintiff would benefit from “a series of epidural steroid injections to the cervical spine,” which would “cost approximately $12,000 to $16,000.”Id. at 76.

Mr. Roell reviewed this documentation and decided he had sufficient information to accurately evaluate Plaintiff's claim.^[5]He valued Plaintiff's claim somewhere between $17,037 and $20,537, with medical bills accounting for $10,037 of the total amount.[Doc.No. 69-3]at 5.As reflected in the claim notes, Mr. Roell reached this conclusion by excluding the $14,605.73 contractual adjustment on the Integris bill, as well as three $50 lien filing fees (for a total of $150) included on other providers' bills.Seeid.His valuation did not include future expenses for the steroid injections, nor did it account for the EMSA, OEP, or radiology bills.In calculating Plaintiff's non-economic damages, Mr. Roell doubled the amount he would usually ascribe for pain and suffering because Plaintiff uses a wheelchair.On March 9, Mr. Roell sent a letter explaining that Plaintiff's claim did not exceed the $25,000 limit of Ms. Maddox's liability policy.The letter concluded: “As such, the underinsured motorist coverage does not apply at this time and I have moved my file to inactive status.Should any new information become available for reconsideration, please contact me or forward all such documentation to my attention.”[Doc.No. 71-25]at 2.

About two weeks later, Mr. Bennett sent a letter to Progressive raising several “questions and concerns” on behalf of Plaintiff.[Doc.No. 71-26]at 2.In part, he criticized Progressive's decision not to “come see [Plaintiff]” so the insurer could “learn a little more about [Plaintiff's] unique situation as a paraplegic with upper body injuries.”Id. at 3.Four days later, Plaintiff dismissed his state court claim against Ms. Maddox with prejudice.

On April 7, 2022, about two and half weeks after Mr. Bennett sent his letter, Mr. Roell took a recorded statement.Plaintiff gave Mr. Roell details of his injuries and dayto-day activities.Following this conversation, Mr. Roell re-evaluated Plaintiff's claim to be between $18,037 and $23,037-still below Ms. Maddox's $25,000 liability limits.The re-evaluation changed only the value of Plaintiff's noneconomic damages.The following day, Plaintiff filed the instant action against Progressive.^[6] On April 14, 2022, Mr. Roell sent another letter to Mr. Bennett, again explaining Plaintiff had not presented a valid UM/UIM claim.He advised that Progressive would “consider any additional information” provided.[Doc.No. 71-28]at 2.

The parties agree Plaintiff's non-economic damages are between $8,000 and $13,000.See Pl.'s Resp. to Def.'s UMF ¶ 29.They disagree, however, over the proper measure of Plaintiff's economic damages.In total, Plaintiff's providers ultimately billed $28,249.46.^[7]SeeDef.'sUMF ¶ 10.Plaintiff argues this entire amount-which includes write-offs and lien filing fees-are economic damages recoverable under the policy.Of that total, $19,227.03 was written off, and $9,022.43 was paid.^[8]Progressive contends the policy only permits Plaintiff to recover the $9,022.43 “paid” amount as economic damages.Thus, even applying the highest limit of Plaintiff's undisputed noneconomic damages, Progressive contends the claim's value does not exceed the tortfeasor's $25,000 limits.Both parties have moved for summary judgment on Plaintiff's breach of contract claim.Progressive also seeks summary judgment on Plaintiff's bad faith claim and request for punitive damages.

III.Analysis

The Court's subject matter jurisdiction is predicated on diversity of citizenship.Its task, therefore, “is not to reach its own judgment regarding the substance of the common law, but simply to ‘ascertain and apply the state law.'”Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665(10th Cir.2007)(quotingWankier v. Crown Equip. Corp., 353 F.3d 862, 866(10th Cir.2003)).The Court, like the parties, applies the substantive law of Oklahoma.SeeGeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1201(10th Cir.2022).In the absence of a controlling state decision, the Court“must attempt to predict what [Oklahoma's] highest court would do.”^[9]Wade, 483 F.3d at 666(quotingWankier, 353 F.3d at...