Zulveta v. State Auto. Mut. Ins., Co.

• Decision Date: 30 November 2015
• Docket Number: Civil Action No. 6:15-2880-HMH-KFM
• Court: U.S. District Court — District of South Carolina
• Parties: Armando Despaigne Zulveta, Plaintiff, v. State Automobile Mutual Insurance, Company; Philpot Law Firm, PA; TC Unlimited, Inc.; Steadman Hawkins Clinic of the Carolinas; Wilson, Jones, Carter, & Baxley, PA; Robert P. Restrepo, Jr.; Stephen R. Bruner; Irvin H Philpot, III; Tim Case; Curtis Elliott; and Wesley J. Shull; Defendants.

Armando Despaigne Zulveta, Plaintiff, v. State Automobile Mutual Insurance, Company; Philpot Law Firm, PA; TC Unlimited, Inc.;Steadman Hawkins Clinic of the Carolinas; Wilson, Jones, Carter, & Baxley, PA;Robert P. Restrepo, Jr.; Stephen R. Bruner; Irvin H Philpot, III; Tim Case;Curtis Elliott; and Wesley J. Shull; Defendants.

Civil Action No. 6:15-2880-HMH-KFM

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

November 30, 2015

REPORT OF MAGISTRATE JUDGE

This matter is before the court on the defendants' motions to dismiss(docs. 12, 17, 22, 28) and the plaintiff's motion to amend complaint(doc. 67).This is a civil action filed by a pro se litigant.Under Local CivilRule 73.02(B)(2)(D.S.C.), pretrial proceedings in this action have been referred to the undersigned United States Magistrate Judge.

DefendantsWesley J. Shull and Willson Jones Carter & Baxley, PA (collectively, "the Willson Jonesdefendants") filed a motion to dismiss on August 27, 2015(doc. 12).On August 28^th, pursuant to Roseboro v. Garrison, 528 F.2d 309(4th Cir.1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to respond adequately (doc. 15).On September 2^nd, defendantsIrvin H. Philpot, III, and the Philpot Law Firm, PA (collectively, "the Philpot defendants") filed a motion to dismiss(doc. 17), and another Roseboro order was issued on September 3^rd(doc. 18).On September 9^th, defendantsCurtis Elliot and Steadman Hawkins Clinic of the Carolinas (collectively "the Steadman Hawkinsdefendants") filed a motion to dismiss(doc. 22).Another Roseboro order was issued on September 10^th(doc. 26).On September 14^th, defendantsStephen R. Bruner, Robert P. Restrepo, Jr., and State Automobile Mutual Insurance Company(collectively "the State Autodefendants") filed a motion to dismiss(doc. 28).A Roseboro order was issued on September 15^th(doc. 32).On October 2^nd, the plaintiff filed his response in opposition to the Willson Jonesdefendants' motion to dismiss(doc. 42), and on October 5^th, he filed his response in opposition to the Philpot defendants' motion to dismiss(doc. 42).On October 8^th, the plaintiff filed a response in opposition to the State Autodefendants' motion to dismiss(doc. 52).On October 14^th, the plaintiff filed a response in opposition to the Steadman Hawkinsdefendants' motion to dismiss(doc. 61), and on October 19^th, the plaintiff filed a motion to amend his complaint(doc. 67).On October 21^st, the undersigned recommended that the motion for leave to file a late answer or otherwise plead (doc. 21) of defendantsTim Case and TC Unlimited, Inc.("the Casedefendants") be granted and the plaintiff's motions for default(docs. 35, 49) be denied.On October 22^nd, the Casedefendants filed opposition to the plaintiff's motion to amend(doc. 74).

On November 17^th, the Honorable Henry M. Herlong, Jr., Senior United States District Judge, granted the Casedefendants' motion for leave to file a late answer or otherwise plead (doc. 21) and denied the plaintiff's motions for default(docs. 35, 49, 71).The undersigned thereafter directed the Casedefendants to file their answer or otherwise plead by November 24^th, and the Casedefendants filed an answer on November 23^rd.

FACTS PRESENTED

This case arises out of an alleged on-the-job injury sustained by the plaintiff on November 11, 2014.The plaintiff filed a claim with the South Carolina Workers' Compensation Commission("the Commission") bearing case number WCC# 1416780.This case is still pending before the Commission, and a hearing to determine if the plaintiff is entitled to workers' compensation benefits was scheduled for September 1, 2015(see doc. 12-2, hearing notice).The Philpot defendants note in their motion to dismiss that the plaintiff asked for and received a continuance of the hearing set for September 1^st(see doc. 17-1at 1 & doc. 17-2).¹The plaintiff alleges, essentially, that the various defendants have conspired to prevent him from obtaining a favorable settlement of his claim (doc. 1 at 4-18).The specific allegations against each defendant are set forth below.

Willson JonesDefendants

DefendantWillson Jones Carter & Baxley, P.A.("Willson Jones") is a law firm with its primary office located in Greenville County, South Carolina.DefendantWesley J. Shull is an attorney who practices with Willson Jones, primarily representing insurance carriers and employers in workers' compensation matters.The plaintiff makes no allegations towards Willson Jones, specifically, and the only allegations against Mr. Shull are that, while representing the opposing parties in the plaintiff's underlying workers' compensation action (namely, the Casedefendants and the workers' compensation insurance carrier, defendantState Automobile Insurance Company("State Auto")), he signed certain settlement proposals and/or documents filed with the Commission and generally participated in settlement negotiations with the plaintiff and the plaintiff's attorney (doc. 1 at 8-10,13).

Philpot Defendants

DefendantPhilpot Law Firm, P.A. is a law firm in Greenville County, South Carolina.DefendantIrvin H. Philpot, III, an attorney at the firm, represented the plaintiff in his workers' compensation claim at issue here.The plaintiff alleges that Mr. Philpot, in conjunction with some of the other defendants, conspired to keep him from receiving an appropriate settlement of his claim.He also alleges Mr. Philpot was not responsive to certain requests he made regarding a second medical opinion after the initial doctor determined he had a 0% disability (doc. 1 at 7) and for his employer having withheldpaychecks (id. at 10).He also criticizes Mr. Philpot for acknowledging defendant Shull in emails as his friend (id. at 11) and for allegedly filing improper paperwork with the Commission when Mr. Philpot was withdrawing as counsel after the plaintiff had terminated Mr. Philpot as his attorney (id.).Additionally, while the plaintiff acknowledges Mr. Philpot would have received his fee based on the plaintiff's settlement amount, the plaintiff alleges that Mr. Philpot "most likely than not" received money from defendant State Auto "under the table" in order to somehow harm the plaintiff's claim (id. at 13).

Steadman HawkinsDefendants

The plaintiff alleges that he injured his knee at work on November 11, 2014, and in an effort to treat his injury, defendant Case took him to Steadman Hawkins.Apparently, the plaintiff was not seen by anyone at Steadman Hawkins on November 11, 2014.The plaintiff alleges that he had an appointment at Steadman Hawkins on November 12, 2014, but the appointment was cancelled because defendant State Auto failed to approve payment and provide the appropriate paperwork (doc. 1 at 4).The plaintiff alleges that more than a month went by before he was seen by defendantDr. Curtis Elliott on December 17, 2014.The plaintiff alleges that Dr. Elliott ignored his symptoms and at least initially refused to prescribe him any medication or document any work restriction for him.The plaintiff alleges that he was seen again by Dr. Elliott on January 14, 2015, and he alleges that Dr. Elliott ignored the issues the plaintiff alleges he was having with his knee, though the plaintiff does state that Dr. Elliott ordered an MRI.The plaintiff alleges that he saw Dr. Elliott one last time on January 28, 2015.During that appointment, they discussed the results of the plaintiff's MRI, which allegedly revealed that there was a piece of metal stuck in the plaintiff's knee.The plaintiff alleges that Dr. Elliott knew about the piece of metal from the beginning, but had refused to tell the plaintiff about it.Finally, the plaintiff alleges that Dr. Elliott signed a physician statement form on February 4, 2015, indicating that the plaintiff had sustained a 0% loss of use to lower extremity and was fit to return to work without restriction.The plaintiff alleges that Dr. Elliott signed the form to make the plaintiff vulnerable to economic sanctions, though it is not clear to what economic sanctionsthe plaintiff is referring.The plaintiff further alleges that Dr. Elliott executed a subsequent statement that the plaintiff claims contradicts the February 4, 2015, statement (id. at 4-5).

State Auto Defendants

As noted above, defendant State Auto is the workers' compensation insurance carrier for the plaintiff's employer.The plaintiff alleges State Auto's role in the alleged conspiracy is in employing its claims adjuster, defendantStephen R. Bruner, and in retaining Mr. Shull to defend the workers' compensation case.The plaintiff claims Mr. Bruner, along with Mr. Shull and Mr. Philpot, pressured him to take an unfair settlement of his workers' compensation claim and "intentionally for several weeks" withheld the plaintiff's last two paychecks (doc. 1 at 9-10).The plaintiff makes no specific factual allegations against defendantRobert P. Restrepo, Jr., whom the plaintiff states is the Chairman of State Auto and is therefore the "major responsible for this fraudulent scheme"(id. at 12).

Case Defendants

DefendantTim Case is the owner and registered agent of defendantTC Unlimited, Inc., a landscaping company that employed the plaintiff.The plaintiff alleges that he hurt his knee at work on November 11, 2014, and when he returned to work in December, defendant Mr. Case refused to let him work on light duty work restriction (doc. 1 at 4).He further claims that he reported back to work on January 29, 2015, and was told by Mr. Case to come back the next day because work was slow (id. at 5).The plaintiff returned on January 30^th, but again was told that work was slow and to go home.The plaintiff claims that Mr. Case told him on February 2^nd, that there was no work because it was raining, and on February 3^rd, Mr. Case told the plaintiff that he was laid off because work was slow (id.).The...