Fox et al v. State Farm Mutual Automobile Ins Co, No. 2:2015cv00535 - Document 51 (W.D. Wash. 2016)
Court Description: ORDER granting in part and denying in part plaintiffs' 44 Motion for Partial Summary Judgment by Judge Richard A Jones.(RS)
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Fox et al v. State Farm Mutual Automobile Ins Co Doc. 51 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 STEVE FOX and CHERIE FOX, husband and wife, 11 12 CASE NO. C15-535RAJ Plaintiffs, 10 ORDER v. STATE FARM INSURANCE COMPANY, Defendant. 13 14 I. 15 16 INTRODUCTION This matter comes before the Court on Plaintiffs Steve Fox and Cherie Fox’s 17 (collectively, “Plaintiffs”) Motion for Partial Summary Judgment. Dkt. # 44. Plaintiffs 18 seek partial summary judgment as to five issues related to Mr. Fox’s medical condition 19 and treatment following a car accident. See id. For the following reasons, the Court 20 GRANTS in part and DENIES in part Plaintiffs’ Motion. II. 21 22 BACKGROUND The Court derives the following facts from the Plaintiffs’ Complaint. Plaintiffs 23 purchased an insurance policy from Defendant State Farm Insurance Company 24 (“Defendant”) that included under-insured motorist (“UIM”) coverage. See Dkt. # 5-1 25 (“Compl.”) ¶ 4.1 That policy was in effect in August 2010 when Mr. Fox was involved 26 in a car accident. See id. ¶¶ 4.1-4.2. That accident was caused by another driver (see id. 27 ¶¶ 4.2-4.4) and as a result, Mr. Fox claims injuries and Mrs. Fox claims loss of 28 ORDER – 1 Dockets.Justia.com 1 consortium (see id. ¶¶ 4.5-4.7). Plaintiffs claim that because the damages Mr. Fox 2 suffered exceeded the other driver’s liability policy limits, Defendant is liable for the full 3 extent of Mr. Fox’s injuries within the limits of the policy. See id. ¶ 4.13. III. 4 5 LEGAL STANDARD Summary judgment is appropriate if there is no genuine dispute as to any material 6 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 7 56(a). The moving party bears the initial burden of demonstrating the absence of a 8 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 9 Where the moving party will have the burden of proof at trial, it must affirmatively 10 demonstrate that no reasonable trier of fact could find other than for the moving party. 11 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where 12 the nonmoving party will bear the burden of proof at trial, the moving party can prevail 13 merely by pointing out to the district court that there is an absence of evidence to support 14 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets 15 the initial burden, the opposing party must set forth specific facts showing that there is a 16 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, 17 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most 18 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. 19 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). 20 IV. 21 DISCUSSION Although a claim against an insurance company for UIM coverage is generally a 22 question of contract, “an underlying tortious injury is also involved.” McIllwain v. State 23 Farm Mut. Auto. Ins. Co., 136 P.3d 135, 138 (Wash. Ct. App. 2006) (citing Girtz v. N.H. 24 Ins. Co., 828 P.2d 90, 92 (Wash. Ct. App. 1992)). Ultimately, in such cases, “the 25 insured’s right to underinsured motorist benefits hinges on the existence of a tort cause of 26 action against the underinsured motorist.” Id. (citing cases). In short, “the insured must 27 be capable of showing that he or she could obtain a judgment in his or her favor, i.e., 28 ORDER – 2 1 prove the elements of a tort claim including fault and overcome defenses.” Id. at 139 2 (citing Sayan v. United Servs. Auto. Ass’n, 716 P.2d 895, 897-98 (Wash. Ct. App. 1986)). 3 Of course, the underlying tort in this case is the negligence of the other driver in 4 Mr. Fox’s accident. See Compl. ¶¶ 4.2-4.4. The elements for a negligence cause of 5 action are “duty, breach, causation, and damage.” Tolliver v. United States, 957 F. Supp. 6 2d 1236, 1245 (W.D. Wash. 2012) (citing Keller v. City of Spokane, 44 P.3d 845, 848 7 (Wash. 2002)). 8 9 This leads us to Plaintiffs’ instant Motion, which requests summary judgment on five issues related to the underlying negligence claim: (1) the automobile accident caused 10 Mr. Fox’s injury, (2) Mr. Fox’s medical treatment was reasonable and necessary for the 11 injuries caused by the accident, (3) the cost of Mr. Fox’s treatment was reasonable, (4) 12 Mr. Fox’s medical condition is permanent, and (5) Mr. Fox’s job resignation was 13 medically reasonable. See Dkt. # 44 at 1. The Court will address each in turn. 14 a. Whether the Automobile Accident Caused Mr. Fox’s Injury 15 Plaintiffs’ first point is that summary judgment should be granted as to the issue of 16 17 whether the automobile accident caused Mr. Fox’s injuries. “[T]he issue of proximate cause is ordinarily a question for the jury,” though it 18 may still be determined on summary judgment where the evidence is undisputed and only 19 one reasonable conclusion may be drawn. Fabrique v. Choice Hotels Int’l, Inc., 183 P.3d 20 1118, 1121 (Wash. Ct. App. 2008) (quoting Bordynoski v. Bergner, 644 P.2d 1173, 1176 21 (Wash. 1982)); see also Martini v. Post, 313 P.3d 473, 479 (Wash. Ct. App. 2013) (citing 22 Owen v. Burlington N. Santa Fe R.R. Co., 108 P.3d 1220, 1223 (Wash. 2005)) (noting 23 that “[c]ause in fact is usually a question for the trier of fact and is generally not 24 susceptible to summary judgment.”). 25 Neither party provides any evidence – or explains any such evidence – regarding 26 the details of the underlying accident. Nevertheless, as best as this Court can tell, in 27 August 2010, Mr. Fox was rear ended while at a full stop. See Dkt. # 45-1 (Jensen Decl.) 28 ORDER – 3 1 Ex. A at 3. Afterward, Mr. Fox reported that he began to experience some head, neck, 2 and lower back pain. See id. 3 Mr. Fox’s treating doctor, Dr. Jack Calabria recounts his examination and 4 treatment of Mr. Fox from January 14, 2011 on and concludes that “[t]he etiology of the 5 diagnosed injuries or conditions is the trauma sustained by the spine in the region of the 6 lumbar spine and lumbosacral spine during the collision of August 4, 2010.” See . See 7 Dkt. # 44-1 (Calabria Decl.) ¶ 115. Defendant’s expert, Dr. Alan Brown, opines that 8 “[o]n a more-probable-than-not basis, this patient had a temporary aggravation of 9 longstanding low back pain, degenerative disk disease, and spinal stenosis.” See Dkt. # 10 45-1 (Jensen Decl.) Ex. A at 17. In other words, both Parties’ experts (and the only 11 evidence presented to the Court) suggest that the August 2010 accident caused 12 something, though they significantly differ as to precisely what. 13 Unsurprisingly, the Parties draw vastly different conclusions from this. Plaintiffs 14 contend that because the experts agree that the August 2010 accident caused something, 15 the Court should grant summary judgment. See Dkt. # 48 at 1-2. Defendant argues that 16 the significant difference in the doctors’ conclusions and, apparently, other evidence 17 show that summary judgment is inappropriate. 18 The Court agrees with Defendant. Contrary to Plaintiffs’ assertion that medical 19 expert testimony is always required (see Dkt. # 48 at 2), such testimony is “necessary to 20 establish causation” only “where the nature of the injury involves ‘obscure medical 21 factors which are beyond an ordinary lay person’s knowledge, necessitating speculation 22 in making a finding.’” See Luttrell v. Novartis Pharms. Corp., 894 F. Supp. 2d 1324, 23 1340 (E.D. Wash. 2012) (quoting Fabrique, 183 P.3d at 1122); see also McLaughlin v. 24 Cooke, 774 P.2d 1171, 1175 (Wash. 1989) (holding that “[i]t is not always necessary to 25 prove every element of causation by medical testimony” even in a medical malpractice 26 case); cf. Parris v. Johnson, 749 P.2d 91, 95 (Wash. Ct. App. 1970) (“Turning now to the 27 question of whether expert testimony is necessary to establish the nature, extent and 28 ORDER – 4 1 probable duration of injuries, we find that it is not always required”). In fact, Washington 2 courts have specifically rejected the argument that “only medical testimony can show 3 causation.” See Ma’ele v. Arrington, 45 P.3d 557, 561 (Wash. Ct. App. 2002). Instead, 4 courts have clarified that “[m]edical causation must be established by a more-likely-than- 5 not standard,” not that it is absolutely necessary in all cases. See id. Whether expert medical testimony is necessary here is not immediately apparent. 6 7 Mr. Fox reported head, neck, and lower back pain for years prior to the August 2010 8 accident. See Dkt. # 45-1 (Jensen Decl.) Ex. A at 4-6. After the accident, he still 9 reported pain. See Dkt. # 44-1 (Calabria Decl.) ¶¶ 2-12. As Defendant rightly points out, 10 the jury could certainly conclude from this evidence that Mr. Fox was not injured by the 11 car accident – or, at least, that he was not injured in precisely the way that he contends he 12 was. 1 A genuine issue of material fact exists as to whether the accident caused his 13 injuries. The Court denies summary judgment as to this issue. 14 b. Whether Mr. Fox’s Medical Treatment Was Reasonable and Necessary 15 Plaintiffs appear to confine their argument on this issue to the two months of 16 treatment immediately following the car accident. See Dkt. # 48 at 2-3. Dr. Calabria 17 opines that all of Mr. Fox’s medical treatment following the accident was necessary and 18 reasonable. See Dkt. # 44-1 (Calabria Decl.) ¶¶ 115-16. Dr. Brown, in turn, provides a 19 qualified answer to that question, concluding that “[a]lthough I do not think any of [Mr. 20 Fox’s] treatment was unreasonable, it does appear that some of his treatment was 21 excessive.” Dkt. # 45-1 (Jensen Decl.) Ex. A at 16. During his deposition, Dr. Brown 22 clarified that the treatment “was excessive notwithstanding any causation.” See Dkt. # 23 49-1 [Brown Depo. Tr.] at 27:19-23. He also opined that a reasonable and necessary 24 length of time for Mr. Fox’s treatment was roughly two months. See id. at 55:3-17. 25 1 27 In fact, Plaintiffs’ own pleadings suggest as much, conceding that “[i]t is understood that the issue of causation of Steve Fox’s injuries beyond two months must be decided by a jury.” Dkt. # 48 at 4. 28 ORDER – 5 26 1 This leaves the Court with two problems. Even if the treatment was not 2 unreasonable, it may not have been necessary if it was “excessive”. This conclusion is 3 suggested by Dr. Brown’s own report, which separates Mr. Fox’s surgery from other 4 diagnostic procedures, such as his MRIs. See Dkt. # 45-1 (Jensen Decl.) Ex. A at 16-17. 5 Likewise, Dr. Brown’s opinion that two months is approximately a reasonable length of 6 time for Mr. Fox’s treatment following the August 2010 car accident leaves this Court 7 with little guidance on the proper period of time. Should the Court grant summary 8 judgment as to seven weeks? Nine weeks? Or just the eight weeks immediately 9 following? 10 The Court finds that Defendant has shown a genuine issue of material fact as to 11 these issues, though just barely. Dr. Brown’s opinions suggest that Mr. Fox may have 12 received unnecessary treatment following the August 2010 collision. That, at least at this 13 juncture, creates a genuine issue for the jury to resolve. Summary judgment is 14 inappropriate. 15 c. Whether the Cost of Mr. Fox’s Treatment Was Reasonable 16 Next, Plaintiffs request summary judgment that the cost of Mr. Fox’s treatment 17 was reasonable. See Dkt. # 44 at 1, 4-5. In support, Dr. Calabria lists various treatments 18 extending from January 14, 2011 to November 4, 2015 and contends that they are 19 reasonable in amount. See Dkt. # 44-1 (Calabria Decl.) ¶¶ 114-116. Defendant, for its 20 part, does not contest this issue, instead choosing to “reserve[] its right to address or 21 challenge any jury instructions that might be offered in relation to this issue.” See Dkt. # 22 46 at 5. Whatever that may mean, it is clear that they have not met their burden to show a 23 genuine issue as to the reasonableness of the cost of Mr. Fox’s treatment. Accordingly, 24 the Court will grant summary judgment on this issue – the costs of all medical treatment 25 Mr. Fox received in connection with his injuries were reasonable. 26 27 28 ORDER – 6 1 d. Whether Mr. Fox’s Medical Condition is Permanent 2 Plaintiffs next request summary judgment that Mr. Fox’s “medical condition” is 3 permanent. See Dkt. # 44 at 1. Defendant contends that that this “evidence” 2 would 4 confuse and mislead the jury. See Dkt. # 46 at 6. Moreover, Defendant argues that 5 Plaintiffs’ motion is vague as to the subject injury. See id. The Court agrees that Plaintiffs’ Motion is vague. Dr. Calabria’s protracted 6 7 declaration references “left buttock, left hip, lower back, and sacroiliac joint pain,” “left 8 iliacus strain, bilateral restriction quadrates lumborum muscles, [and] left lower pole fifth 9 lumbar strain,” “left lumbar radiculitis, left sciatica, [and] foraminal stenosis,” among 10 other things. See Dkt. # 44-1 (Calabria Decl.) ¶¶ 3, 5, 10. Plaintiffs’ Motion spends little 11 time differentiating between these various diagnoses, despite consisting almost 12 exclusively of direct block quotations from the declaration. See Dkt. # 44 at 3-5. 13 Plaintiffs’ clarification that “the referenced ‘condition’ was the area of Mr. Fox’s body 14 that has been causing a majority of his pain and where he had two surgeries,” is, frankly, 15 not enough. Dkt. # 48 at 4. Based on Dr. Calabria’s testimony, Mr. Fox suffered from a 16 variety of maladies. It is not Defendant’s duty to specifically identify the condition 17 Plaintiffs contend is permanent. In any event, Defendant still met its burden in creating a genuine issue of material 18 19 fact. Specifically, Dr. Brown opined that “on a more-probable-than-not basis . . . this 20 claimant was back to his baseline within a couple of months.” Dkt. # 45-1 (Jensen Decl.) 21 Ex. A at 17. In other words, any injury attributable to the underlying car accident was 22 resolved after a few months. As Defendant understood it – and as the Court understands 23 it – the relevant “medical condition” is whatever resulted from the underlying car 24 25 26 27 28 2 The Court is unclear what to make of this. Ostensibly, a court order would not be presented to the jury as such a holding would be addressed in the jury instructions. And, in any event, if Defendant had an objection to such “evidence,” it could easily be addressed through a motion in limine. See Williams v. Hughes Helicopters, Inc., 806 F.2d 1387, 1392 (9th Cir. 1986) (affirming trial court’s exclusion of legal memoranda on motions in limine because they had the potential to cause the jury to ignore the court’s instructions). ORDER – 7 1 accident. Dr. Brown’s report amply creates a genuine issue as to the permanency of that 2 injury. Summary judgment is denied. 3 e. Whether Mr. Fox’s Job Resignation Was Medically Reasonable 4 Finally, Plaintiffs seek summary judgment on the issue of whether Mr. Fox’s 5 decision to resign from his job was medically reasonable. See Dkt. # 44 at 1. Of course, 6 as Defendant notes, Plaintiffs provide this Court with no authority for granting summary 7 judgment on this issue. Whatever Plaintiffs are seeking, the Court finds that a genuine issue of material 8 9 fact exists. Although Dr. Calabria opines that Mr. Fox’s resignation was “consistent with 10 medical recommendations for the treatment of his injuries” (Dkt. # 44-1 (Calabria Decl.) 11 ¶ 118), Dr. Brown concludes that the “subject accident” is not related to whether Mr. Fox 12 is “able to work” (Dkt. # 45-1 (Jensen Decl.) Ex. A at 17). If Plaintiffs contend that 13 damages associated with Mr. Fox’s job resignation are reasonable and foreseeable, then 14 perhaps this evidence is relevant. Nevertheless, Dr. Brown’s conclusions still contradict 15 the extent to which Mr. Fox’s decision can be tied to the underlying incident. Summary 16 judgment is denied. 17 /// 18 /// 19 /// 20 21 22 23 24 25 26 27 28 ORDER – 8 V. 1 2 3 4 5 6 7 CONCLUSION For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion for Partial Summary Judgment. Dkt. # 44. Specifically, the Court: 1. Summary judgment is denied on the issue of whether the underlying car accident caused Mr. Fox’s injury; 2. Summary judgment is denied on the issue of whether Mr. Fox’s medical treatment was reasonable and necessary; 8 3. Summary judgment is granted as to the cost of Mr. Fox’s medical treatment; 9 4. Summary judgment is denied on the issue of whether Mr. Fox’s medical 10 11 12 condition is permanent; and 5. Summary judgment is denied on the issue of whether Mr. Fox’s decision to resign from his job was medically reasonable. 13 14 DATED this 16th day of March, 2016. 15 16 A 17 18 The Honorable Richard A. Jones United States District Court 19 20 21 22 23 24 25 26 27 28 ORDER – 9
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