IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
August 31, 2009
CRYSTAL CRAWFORD PLAINTIFF,
ALLSTATE INSURANCE COMPANY, DEFENDANTS.
The opinion of the court was delivered by: Buckwalter, S. J.
Plaintiff Crystal Crawford's Complaint alleges that Defendant Allstate Insurance Company's ("Allstate") conduct in settling her insurance claim constitutes bad faith under Pennsylvania law.*fn1 She makes this claim even though Allstate awarded her both the policy's full $100,000 uninsured motorist ("UM") policy limit, as well as its entire $5,000 wage loss policy limit. Allstate subsequently filed a Motion for Summary Judgment. Crawford responded to Allstate's Motion for Summary Judgment, and Allstate replied to her Response. For the reasons discussed below, this Court grants Allstate's Motion for Summary Judgment.
I. FACTUAL BACKGROUND
A. The Complaint
Crawford's suit arises from her efforts to resolve an insurance claim with her insurer, Allstate. On September 8, 2005, Crawford was injured when the car she was driving was rear-ended. (Compl. ¶¶ 4-6.) The driver of the other vehicle was not insured. As a result, Crawford sought to recover the entire $100,000 UM and $5,000 wage loss limits contained in her Allstate policy. When Allstate indicated that it was unable to determine if it was a "policy limits" case, Crawford demanded arbitration. (Id. at ¶ 7.) Allstate made Crawford a $75,000 settlement offer which she refused. (Id. at ¶¶ 12-13.) Eventually, Allstate offered Crawford both the $100,000 UM policy limit and the $5,000 wage loss policy limit. She accepted both offers. (Id. at ¶ 17.)
In raising this Complaint, Crawford alleges nineteen particular acts that evidence Allstate's bad faith. (Id. at ¶ 19.) Given these allegations, Crawford seeks to recover for damages including:
a.) interest in the amount of the claim from the date the claim was submitted by the plaintiff, equal to the prime rate of interest plus 3 percent;
b.) compensatory damages;
c.) courts costs, arbitration costs, witness costs, and attorney's fees incurred in the arbitration of the claim;
d.) court costs and attorney's fees incurred in this litigation; and
e.) punitive damages.
(Id. at ¶ 20.)
B. Synopsis of Key Factual Background*fn2 The factual background for this suit is extensive. While there are many details, the key facts and dates are quite straightforward. By providing a synopsis of key dates, at the outset of this Memorandum, this Court endeavors to cut through the morass of claims, counter-claims, and assertions:
* September 8, 2005: Crawford was injured when an uninsured motorist rear-ended her car. (Compl. ¶ 4.)
* September 9, 2005: Crawford notified Allstate of the accident. (Allstate's Mot. Summ. J. 3.)
* September 15, 2005: Thaddeus Bartkowski II notified Allstate that he was Crawford's legal counsel. (Id., Ex. 2 Allstate Claim Diary 4.)
* September 13, 2006: Allstate first obtained medical records from Crawford. (Id., Ex. 18, Bartkowski Sept. 11, 2006 letter.)
* March 6, 2007: Donaghue wrote Bartkowski stating "that I have been authorized to offer the claimant $75,000 to settle the above captioned matter." (Id., Ex. 49, Donaghue Mar. 6, 2007 letter.) Crawford refused.
* July 11, 2007: Allstate received Crawford's medical records from Bryn Mawr Rehab. (Id., Allstate Claim Diary 36.)
* July 17, 2007: Donaghue wrote Bartkowski stating "[p]lease be advised that Allstate Insurance Company hereby tenders its $100,000 policy limits in the above captioned matter. Accordingly, I enclose a Release to be executed by the claimant." (Id., Ex. 68, Donaghue July 17, 2007, letter.)
* July 26, 2007: Bartkowski faxed a signed, revised release to Donaghue. (Id., Ex. 69, Signed and Revised Release.)
* August 20, 2007: Donaghue forwarded the settlement check to Bartkowski. (Id., Ex. 76, Donaghue Aug. 20, 2007 letter.)
* September 10, 2007: Bartkowski provided Allstate with the required wage loss documentation. (Id., Ex. 2, Claims Diary ("Claims Diary") 40-41.)
* September 10, 2007: Crawford filed suit against Allstate.
* September 12, 2007: A wage loss check was issued to Crawford. (Id.)
II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue, a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. (Id.)
On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, PA, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993.) Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." (Id. at 325.) Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "There must be sufficient evidence for a jury to return a verdict in favor of the non-moving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted. Arbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994), abrogated on other grounds, Showalter v. Univ. of Pittsburgh Med. Center, 190 F.3d 231 (3d Cir. 1999).
Crawford's Complaint raises a variety of general and specific allegations which she believes support a bad-faith claim. This Court groups Crawford's claims together, based on their typicality, addressing them in turn: (1) Allstate's delay in processing Crawford's claim; (2) Allstate's unreasonable settlement offer; (3) Donaghue's misrepresentation of the contents of Crawford's medical records; (4) Allstate's improper release and subsequent delay in issuing the $100,000 UM settlement check; (5) Allstate's use of an unfair doctor and an unfair arbitrator.*fn3
Where an insurer refuses to settle a claim that could have been resolved within the policy limits without "a bona fide belief . . . that it has a good possibility of winning," it breaches its duty to act in good faith. Cowden v. Aetna Cas. and Sur. Co., 389 Pa. 459, 134 A.2d 223, 229 (1957). Pennsylvania does not have a common-law remedy for insurance bad faith. Rather in 1990, the legislature enacted 42 Pa. C.S. § 8371 which provides a statutory remedy for bad faith. See 42 PA. CONS. STAT. § 8371 (1990).
To sustain a section 8371 claim, a Plaintiff must show that the: (1) the insurer did not have a reasonable basis for denying benefits under the applicable insurance policy; and (2) the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.
Terletsky v. Prudential Prop., 649 A.2d 680, 688 (Pa. Super. Ct. 1994), appeal denied, 540 Pa. 641 (1995). "Bad faith by the insurer is any frivolous or unfounded refusal to pay proceeds of the policy, the refusal need not be fraudulent, but bad faith imports a dishonest purpose and means a breach of a known duty through some motive of self-interest or ill will."*fn4 Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1035 (Pa. Super. Ct. 1999) (quotations omitted.)
"[B]ad faith must be proven by clear and convincing evidence and not merely insinuated." Id., see; Greene v. United Servs. Auto. Ass'n, 936 A.2d 1178 (Pa. Super. Ct. 2007) (stating that the court was not convinced, by clear and convincing evidence, that the insurer acted in bad faith, or with dishonest purpose, ill-will, or self interest), appeal denied, 2008 WL 2894845 (Pa. 2008). Mere negligence or bad judgment by an insurer in refusing to pay a claim is not "bad faith." O'Donnell ex rel. Mitro v. Allstate Ins. Co., 734 A.2d 901 (Pa. Super. Ct. 1999).
Bad faith under section 8371 is not restricted to the denial of an insurance claim. See Ania v. Allstate Ins. Co., 161 F. Supp. 2d 424, 430 n.7 (E.D. Pa. 2001) (holding that section 8371 "applies equally to an unreasonable delay in payment"); Terletsky, 649 A.2d 680 (finding bad faith based upon a frivolous or unfounded refusal to pay the proceeds of a policy); O'Donnell, 734 A.2d at 906 ("An action for bad faith may also extend to the insurer's investigative practices"); Romano v. Nationwide Mut. Fire Ins. Co., 646 A.2d 1228, 1232 (Pa. Super. Ct. 1994) (affirming a finding of bad faith when insurer refused to settle a claim that could have been settled within the policy limits). Courts, however, have refused to find bad faith when an insurer makes a low but reasonable offer. Terletsky, 649 A.2d at 688. Similarly, bad faith has not been found where the insurer acted to "aggressively investigate and protect its interest." O'Donnell, 734 A.2d at 910.
To survive summary judgment Crawford must raise genuine issues of material fact showing that Allstate possessed "clear and convincing evidence" that it had no "reasonable basis for denying benefits under the policy and that the insurer knew of or recklessly disregarded said lack of reasonable basis for denying benefits." Id.
1. Allstate's Delay in Processing Crawford's Claim*fn5
Crawford asserts that Allstate engaged in unreasonable delays in settling her insurance claim. At first blush, this claim seems reasonable as Crawford was injured on September 8, 2005, and it was not until August 2007 that Allstate settled her UM claim. That there is no bad faith is apparent upon examination of the factual record. This Court examines this claim by looking at two distinct time periods: (1) Allstate's actions immediately following the September 2005 accident; and (2) Allstate's actions after it first obtained medical records from Crawford.
a. Allstate's Actions Immediately Following the September 2005 Accident
i. Allstate Promptly Took Action Following the September 2005 Accident
Crawford informed Allstate of her accident on September 9, 2005. (Allstate's Mot. Summ. J., Ex. 2, Allstate Claim Diary 1.) Four days later, Allstate wrote Crawford explaining her benefits, providing her with the necessary paperwork, and asking that she take a variety of steps to expedite her claim. (Id., Ex. 3, Allstate Sept. 13, 2005 letter.) On September 15, 2005, Bartkowski notified Allstate that he was legal counsel for Crawford. (Id., Allstate Claim Diary 4.) That same day, Allstate arranged to have Crawford's vehicle inspected, and an Allstate representative wrote in Allstate's Claims Diary that, "I also advised her (Crawford) that I will give her a call when her check is mailed out." (Id. at 5.) On September 23, 2005, an Allstate UM claims processor sent Mr. Bartkowski a letter detailing Allstate's policy requirements for an UM claim. (Id., Ex. 5, Allstate Sept. 23, 2005 letter.) The letter contained a medical authorization form asking that Crawford return the form so Allstate could "secure medical reports and other information needed to properly evaluate this claim." (Id.)
Not having received any forms from Crawford, Allstate wrote Bartkowski requesting that Crawford: (1) ask her doctor to complete and return the enclosed "Attending Physician's Report;" (2) ask her employer to complete and return the enclosed "Wage & Salary Verification" form; and (3) complete and return the enclosed "Application for Benefits" form.
(Id., Ex. 7, Allstate Nov. 4, 2005 letter.)*fn6 Ten days later, Allstate again sent these forms to Bartkowski. (Id., Ex. 12, Allstate Nov. 14, 2005 letter.)
Even though Crawford did not submit any forms to Allstate, it "processed all bills submitted to date." (Id., Ex. 14, Allstate Jan. 19, 2006 letter; see also Ex. 15, Allstate Feb. 23, 2006 letter.) Allstate in February 2006 contacted Crawford about any "additional bills" that may be outstanding. (Id.)
ii. Crawford Waits One Year Before Providing Medical Records to Allstate
Crawford's Complaint and the record make clear that a year passed before Crawford provided Allstate with any medical records. She first provided medical records to Allstate in September 2006.*fn7 Likewise, almost two years passed before Crawford returned her wage loss verification forms to Allstate. (Claims Diary 39.) Crawford's delays, coupled with the fact that Allstate did not have all the records it sought until July 2007, undermines her assertion that Allstate delayed payment "to put financial pressure on the plaintiff to accept a lower amount than that plaintiff is entitled under the policy." (Compl. ¶ 19(o).)
Even though she neither returned any forms nor provided her medical records, Allstate continued to pay for Crawford's medical coverage. Thus, in the year following Crawford's accident, Allstate: (1) contacted Crawford abut her claim; (2) repeatedly provided both her and her counsel with the forms necessary to proceed with her claim; (3) timely inspected her automobile; and (4) processed and paid her medical claims. Notwithstanding Allstate's efforts, Plaintiff did not return her medical authorization form until November 2006-over a year after the accident. (Id., Ex. 28, Crawford Medical Authorization.) The record is clear that any "financial pressure" placed upon Crawford was due, in a large part, by her failure to timely submit the required forms even though Allstate repeatedly asked for them.
b. Allstate's Action After Crawford Provides Her Medical Records to Allstate
On September 12, 2006, Bartkowski finally provided some medical records to Allstate. These records were far from exhaustive. During a September 18, 2006, phone call Bartkowski told Allstate claims adjuster, Welsh, that "he is in the process of getting" Crawford's medical records and that Crawford would pursue arbitration.*fn8 (Claims Diary 18.) Four days later, Allstate secured outside counsel. (Id.) On October 4, 2006, Hugh Donaghue wrote Crawford's counsel stating that he had been retained by Allstate for this matter and indicating his intention to take Crawford's sworn statement. (Id., Ex. 25, Donaghue Oct. 4, 2006 letter.)
On November 7, 2006, Donaghue wrote Bartkowski confirming that he had scheduled Crawford's sworn statement for December 12, 2006. (Id., Ex. 26, Donaghue Nov. 7, 2006 Statement letter.) That day, in a separate letter, Donaghue sent Crawford's medical authorization forms to Bartkowski. (Id., Ex. 27, Donaghue Nov. 7, 2006 Authorization letter.)
Crawford, on November 9, 2006, executed the medical authorizations forms and included a list of treating physicians. (Id., Ex. 28, Crawford Medical Authorization.) Donaghue, on December 12, 2006, took Crawford's statement under oath. (Id., Ex. 1, Crawford's Statement Under Oath ("Crawford Statement").) It was at this time that Donaghue claims he first learned of Crawford's August 2000 automobile accident that resulted in her hospitalization. (Id. at 42:7-24, 43:4-8.) On December 15, 2006, Donaghue wrote three letters: one to MLR and two to Crawford's attorney. The letter to MLR asked that it subpoena all of Crawford's medical records pertaining to her August 2000 accident. (Id., Ex. 30, Donaghue Dec. 15, 2006 MLR letter.) The letters to Crawford's counsel: (1) sought to schedule Crawford's independent medical examinations ("IME"); and (2) provided an employment information release form. (Id., Ex. 31, Donaghue Dec. 15, 2006 IME letter; Ex. 33, Donaghue Dec. 15, 2006 Release letter.)
On December 18, 2006, Donaghue wrote to Doctors Bonner and Zimmerman, both of whom were scheduled to conduct Crawford's January 9, 2007 IMEs. (Id., Ex. 35, Bartkowski Dec. 19, 2006 IME letter.) Donaghue included the medical records he possessed noting that he had "subpoenaed more complete records and will forward them to you upon receipt." (Id.) Donaghue wrote Bartkowski on December 21, 2006, to confirm the scheduled, January 9 IMEs and to request that Crawford return her employment authorization form. (Id., Ex. 31, Bartkowski Dec. 15, 2006 IME letter.) On January 2, 2007, Donaghue sent recently received medical records to Doctors Bonner and Zimmerman noting that he would "forward copies of additional subpoenaed records upon receipt." (Id., Ex. 37, Donaghue Jan. 2, 2007 letter.) Donaghue, on the day of the scheduled IMEs, sent newly received medical records to Doctors Bonner and Zimmerman. (Id., Ex. 38, Donaghue Jan. 9, 2007 letter.) Doctor Bonner examined Crawford's neck and back while Doctor Zimmerman examined her left knee. (Id., Ex. 39, Dr. Bonner Jan. 9, 2007 IME Report ("Bonner Report") & Ex. 40, Dr. Zimmerman Jan. 19, 2007 IME Report ("Zimmerman Report").)
Donaghue received the Bonner Report on January 19, 2007, and forwarded it to Crawford's counsel on February 5, 2007. (Id., Ex. 39, Bonner Report & Ex. 41, Donaghue Feb. 5, 2007 Bonner Report letter.) Donaghue received the Zimmerman Report on February 4, 2007. (Id., Ex. 41, Donaghue Feb. 5, 2007 Bonner Report letter.) The next day, Donaghue wrote to Doctor Zimmerman asking that he examine "films from Riddle Memorial Hospital referable to Crystal Crawford." (Id., Ex. 42, Donaghue Feb. 5, 2007 Zimmerman letter.) On February 21, 2007, Donaghue forwarded the Zimmerman Report to Crawford's attorney. (Id., Ex. 43, Donaghue Feb. 19, 2007 letter.)
Based on the information obtained to date, Allstate's claim adjuster evaluated Plaintiff's claim and developed a negotiation plan. (Id., Ex. 48, Allstate Negotiation Plan.) Afterward, Donaghue wrote Bartkowski stating, "that I have been authorized to offer the claimant $75,000 to settle the above captioned matter. If she is interested, we can set up a structured settlement." (Id., Ex. 49, Donaghue Mar. 6, 2007 letter.)*fn9 Crawford refused the offer.*fn10
Donaghue's secretary wrote Bartkowski stating that her office had not obtained records from Bryn Mawr Rehab. (Id., Ex. 58, Donaghue July 2, 2007 letter.) On July 11, 2007, Allstate received Crawford's Bryn Mawr Rehab records. (Id., Allstate Claim Diary 36.) These records addressed her lengthy hospitalization following the August 2000 accident. Welsh reviewed these records finding that "there was no mention in those records at all that she injured her knee." (Id., Deposition of Tricia Welsh, 61:23-25, June 26, 2008.) The records showed that Crawford's knee was not injured in the August 2000 accident. As a result, Welsh stated that she "re-evaluated the file at that point based on the medical records we received . . .. And I requested the policy limits of $100,000." (Id. at 61:17-19.) Evaluation Comment notes from July 17, 2007 indicate that, "we now have more complete records from the 8/18/00 MVA [motor vehicle accident] and there is no mention at all of the knee. With the def [defendant's] IME essentially giving 02*fn11 a permanent inj [injury], I agree that we need to be ready to offer the $100,000." (Id., Ex. 48, Evaluation Notes 4.) That same day, Donaghue wrote Bartkowski stating "[p]lease be advised that Allstate Insurance Company hereby tenders its $100,000 policy limits in the above captioned matter. Accordingly, I enclose a Release to be executed by the claimant." (Id., Ex. 68, Donaghue July 17, 2007, letter.)
The record provides no indication that Allstate, after obtaining Plaintiff's medical records, delayed in settling with Crawford as insurance companies are permitted to conduct reasonable, good-faith examination of a claimant's medical record. See Segall v Liberty Mut. Ins. Co., Civ. A. No. 99-6400, 2000 WL 1694026, at *3 (E.D. Pa. Nov. 9, 2000) (noting that continued investigation was "continued investigation was appropriate"). These are precisely the steps taken by Allstate. Without having all of Crawford's medical records Allstate's counsel took her sworn statement, and arranged for her to undergo two IMEs.
Allstate's persistence in obtaining Crawford's records worked to her benefit since after receiving the entire record of Crawford's hospitalization at Bryn Mawr Rehab, Allstate promptly revised its position and offered her the entire UM policy amount. (Allstate's Mot. Summ. J.; Ex. 68, Donaghue July 17, 2007, letter.) Thus, within six days of receiving, what it deemed to be important, conclusive medical records, Allstate offered Crawford the entire $100,000 UM policy limit. Far from bad faith, Allstate had a reasonable, good-faith basis for delaying settlement - for over a year it received no medical records from Crawford. After receiving some of Crawford's medical records, Allstate promptly proceeded with its evaluation of Crawford and her claim, settling within a week of receiving the final records sought.
2. Allstate's Unreasonable Settlement Offer*fn12
Plaintiff asserts that Allstate's settlement offer was unreasonable. This claim effectively has two prongs: (1) Allstate's initial $75,000 settlement offer was unreasonable; and (2) Allstate did not reasonably investigate Crawford's claim. This Court will address each claim in turn.
a. Allstate's $75,000 Offer Was Not Unreasonable
It is clear from her counsel's earliest conversations with Allstate that Crawford viewed her claim as intrinsically worth the policy limit believing that this should have been apparent to Allstate from the moment some medical records were finally provided them. (See Compl. ¶ 7.) This logic, however, was soundly rejected in Condio v. Erie Ins. Exch., 899 A.2d 1136 (Pa. Super. Ct. 2006), where the court noted that an insurer was not obligated to pay an insurance claim "on demand, no questions asked." Id. at 1145.*fn13
Insurers are permitted to protect their interests -- which include making sure that the insured's claim is justified -- but must have a reasonable basis for their actions. Condio, 899 at 1145. Initially, Allstate offered Crawford $75,000 to settle her claim. She refused this offer -- a decision not only within her rights but ultimately within her financial best interest -- as Allstate eventually paid her $100,000. For Crawford to prevail on her bad faith claim, she must show by clear and convincing evidence that Allstate had no reasonable basis for its initial settlement offer.*fn14 Crawford is unable to make such a showing as a low, but reasonable offer, is not evidence of bad faith. See O'Donnell, 734 A.2d at 910 (noting that in the absence of evidence of a dishonest purpose or ill-will, it is not bad faith to take a stand with a reasonable basis or to "aggressively investigate and protect its interests.") Crawford provides no evidence suggesting that Allstate's initial offer was unreasonable.
The medical records show that Crawford's medical condition was complex, justifying careful examination. An MRI of her cervical spine revealed two herniations, a spinal bulge, and several pre-existing spinal conditions: osteophytes and spondylosis. (Allstate's Mot. Summ. J., Ex. 11, Crawford's Medical Records ALL628-29.) A subsequent MRI of her lumbar spine revealed a broad-based disc protrusion at L4-L5 and L5-S1, as well as some degeneration. (Id. at ALL632.)
From September 22, 2005, through February 23, 2006, Crawford made twentyone visits to the Sports Medicine Rehabilitation Center at Pennsylvania Hospital. (Id. at ALL602-ALL623.) Despite lingering troubles, the arc of Crawford's recovery was clear: as she returned to the gym (Id. at ALL604 (Oct. 18, 2005 therapy notes), and went on a weekend skiing trip. (Id. at ALL616 (Feb. 7, 2006 therapy notes.)
Crawford's rehabilitation notes were part of the initial group of medical records provided to Allstate in September 2006. As this Court's brief synopsis indicates, these notes provide a complex and somewhat contradictory glimpse of Plaintiff: suffering from continuing pain while also making steady progress. The rehabilitation notes are consistent with both IMEs, which note Crawford's progress, but opine that she will continue to suffer from pain.*fn15
These records do not provide "clear and convincing" evidence that this case was worth more than $75,000. Settlement at an amount higher than the initial settlement offer is not evidence of bad faith. See Williams v. Hartford Cas. Inc. Co., 83 F. Supp. 2d 567, 576 (E.D. Pa. 2000) (awarding summary judgment for insurer even though arbitration award was $250,000 higher than the highest settlement offer), aff'd, 261 F.3d 495 (3d Cir. 2001)). The relevant issue is not the disparity between Allstate's initial and final offer. The issue remains whether Crawford has "clear and convincing evidence" that Allstate's initial offer was unreasonable and that it knew the offer was such. Crawford has failed to sustain her burden.
b. Allstate Reasonably Investigated the Information
Contrary to Crawford's assertion, the record does not suggest that Allstate did not conduct "a reasonable investigation of all available information." (Compl. ¶ 19(b).) Allstate obtained most of Crawford's medical records well in advance of its July 2007 $100,000 settlement offer. Any delay in settlement was based upon an effort to conduct a reasonable and thorough investigation. It is not unreasonable, given the August 2000 accident, that Allstate did not make a second offer until it had obtained and reviewed the Bryn Mawr medical records. Similarly, Allstate understood that Crawford was not deviating from her demand for the policy limit. Allstate had no interest in negotiating against itself, and it sought to marshal the evidence before proceeding.
Crawford disputes Allstate's explanation that it delayed its offer because it did not have the Bryn Mawr records. (Crawford's Resp. Mot. Summ. J. 9.) In fact, as argued by Crawford, Allstate "had the Bryn Mawr records six months before it pretends that it received the Bryn Mawr records for the first time." (Id.) Allstate rebuts this assertion noting that prior to July 2007, it only had "a three-page Discharge Summary from Bryn Mawr Rehab Hospital," and that its counsel "did not feel that he could get a complete picture of the injuries suffered by Plaintiff in the August 10, 2000 accident based solely upon the Discharge Summary." (Allstate's Reply Br. 6 & Ex. 84, Affidavit of Hugh A. Donaghue ¶ 16) ("The Discharge Summary is not and does not purport to be a complete recitation of all of Ms. Crawford's complaints. Rather it is a summary of her chief complaints and diagnoses.") Donaghue noted that Crawford was unrestrained in the August 2000 accident (a head-on collision), and stated that he felt it "was possible, if not likely that Plaintiff suffered knee, neck or back pain" as a result of the accident. (Id. at ¶ 17.) It was entirely reasonable for Allstate to rely upon the determinations and opinions of its counsel.
After obtaining the Bryn Mawr records, Allstate determined that Crawford did not injure her knee in the August 2000 accident, and as a result promptly offered her the entire policy amount. Allstate's response suggests a reasonable, timely process, based on an examination of the entire record culminating in a policy limits offer. (Compl. ¶ 19(c).)
3. Misrepresenting the Contents of Crawford's Medical Records*fn16
Crawford alleges that Allstate: (1) misrepresented the content of medical records in its possession; and (2) subsequently delayed providing these records to her. The Court addresses these claims in turn.
a. Donaghue's Delay in Providing Medical Records to Crawford
As discussed previously, counsel for the parties spoke in early February 2007. During this phone call, Donaghue allegedly made two statements: (1) Allstate would not make a settlement offer unless Crawford sought less than the policy limit; and (2) he claimed to have medical records showing that Crawford suffered "lumbar disc damage from the auto accident of August, 2000." (Allstate's Mot. Summ. J.; Ex. 46, Bartkowski Feb. 7, 2007 letter; Ex. 50, Bartkowski Mar. 7, 2007 letter) (emphasis in original).)
On February 7, 2007, Bartkowski wrote to Donaghue including a request for admissions and a request for production of documents. (Id., Ex. 46, Bartkowski Feb. 7, 2007 letter.) Bartkowski asked that Donaghue reply within thirty days. (Id.) On February 14, 2007, Donaghue replied stating that:
[i]n my years of practice, I have yet to be served with Request for Admissions and Request for Production of Documents in a UIM case. Upon further reflection, it is my intention not to answer the same. However, at any time you may review any and all medical records of the claimant in my possession. Furthermore, I will provide you with copies of the same if you let me know you want them.*fn17
(Id., Ex. 47, Donaghue Feb. 14, 2007 letter.)
Subsequently, Bartkowski sent a letter addressing Donaghue's assertion that he possessed medical records showing that Crawford "suffered the same lumbar disc damage from the auto accident of August, 2000." (Id., Ex. 50, Bartkowski Mar. 7, 2007 letter.) Bartkowski noted "that you say that you have medical records which help you, and you promised me that I would immediately receive those medical records, but I do not receive those records, I see no reason to believe you." (Id. at 2.) Further, "if you [Donaghue] make an assertion which are not in fact supported by the records you are acting in bad faith. . . . If the policy limits are not offered within twenty days we will consider our options at the conclusion whether or not to hold Allstate responsible for the bad faith that you have demonstrated." (Id. at 2-3.) The next day, Donaghue replied to Bartkowski's letter restating a willingness to provide copies of any medical records stating, "[p]lease specify the records you desire and I will have Professional Duplicating copy them and you may make arrangements to pick up the copies at Professional Duplicating." (Id., Ex. 51, Donaghue Mar. 8, 2007 letter).
Donaghue had stated that he would not respond to Bartkowski's discovery requests. As a result, Bartkowski wrote to Gallagher, the neutral arbitrator, asking that he grant Bartkowski's proposed orders compelling Donaghue to answer the Requests for Documents. (Id., Ex. 53, Bartkowski June 12, 2007 letter to Gallagher.) Gallagher scheduled a July 5, 2007, conference call to resolve this discovery dispute. (Id., Ex. 66, Bartkowski July 3, 2007 letter.)
On July 9, 2007, Gallagher wrote to "confirm the results of the short unpleasant conference call which the three of us shared on Thursday, July 5, 2007." (Id., Ex. 67, Gallagher July 9, 2007 letter.) Noting that most records "have already been exchanged between counsel," Gallagher remarked that the parties agreed that Donaghue will provide Bartkowski with "all medical records, expert opinions, statements and reports upon which Mr. Donaghue intends to rely at the time of the hearing." (Id., see also Ex. 56, Donaghue June 22, 2007 letter.)
Looking at the record in a light most favorable to Crawford, her claim that Allstate withheld her medical records, requiring her to file a motion to obtain them lacks any basis in fact. (Compl. ¶ 19(f),(q).) The record suggests that Bartkowski either chose to ignore or did not understand Donaghue's repeated offer to provide any and all medical records in his possession.*fn18 (See Allstate's Mot. Summ. J., Ex. 52, Bartkowski June 12, 2007 letter; Ex. 54, Donaghue June 21, 2007 letter ; Ex. 47, Donaghue Feb. 14, 2007 letter) ("However, at any time you may review any and all medical records of the claimant in my possession.") Further, the neutral arbitrator noted that most records had "already been exchanged between counsel," and an agreement was reached about providing any outstanding documents. There is no indication, whatsoever, that Allstate withheld records much less forced Crawford to instigate litigation to obtain them.
b. Donaghue's Misrepresentation of the Contents of the Medical Records in his Possession
Crawford asserts that when speaking to Bartkowski, Donaghue misrepresented "pertinent facts relating to the content of the medical records" in his possession. (Compl. ¶ 19(a).) She asserts that this "is the most important theory" put forth in her Complaint as Donaghue claimed that based upon "prior medical records showing prior disc damage" Allstate did not offer the policy limits. (Crawford's Resp. Mot. Summ. J. 14; Allstate's Mot. Summ. J., Ex. 57, Bartkowski July 2, 2007 letter.)
Allstate asserts that Donaghue's concern about Crawford's prior back injuries rests upon two entries in the record: (1) an "Initial Visit Summary" written on April 3, 2006; and (2) results of cervical spine MRI ordered by John Boor, M.D. on October 3, 2005. (Id., Ex. 44, April 3, 2006 Initial Visit Summary.) Under "past medical history," the Initial Visit Summary noted that "[t]he patient's past medical history is significant for 4 herniated discs." (Id.) Allstate also notes that the Boor MRIs evidence pre-existing back problems including: "ostephytes, degeneration and spondylosis" which Donaghue believed indicated back trauma prior to September 2005. (Allstate's Mot. Summ. J. 37.)
Donaghue clearly possessed concerns about any potential pre-existing conditions. After learning of the August 2000 head-on collision, which required considerable hospitalization, Donaghue took additional steps to learn more about Crawford's medical history. First, after receiving Doctor Zimmerman's IME, Donaghue contacted Doctor Zimmerman asking that he examine "films from Riddle Memorial Hospital referrable to Crystal Crawford." (Allstate's Mot. Summ. J., Ex. 42, Donaghue Feb. 5, 2007 Zimmerman letter.) Second, given the August 2000 accident, it is reasonable to conclude that Donaghue would examine Crawford's medical records in a new, more careful light. Compounding Allstate's concern was the evidence which they knew existed but did not possess - the complete records from Bryn Mawr Rehab Hospital.
When he deposed Donaghue, Bartkowski asked that Donaghue "produce the record upon which he relied when he made the statement of February 14, 2007." (Crawford's Resp. Mot. Summ. J. 15.) While Donaghue had previously provided all of Crawford's records to Bartkowski, he did not, at the deposition, specify which documents he believed indicated a pre-existing condition in Crawford. Bartkowski "believes" Donaghue did not identify the specific documents because no such documents "exist." (Id.) This Court finds it just as reasonable to conclude that Donaghue did not specify the actual document because: (1) Bartkowski was not letting him speak; and (2) Bartkowski did not refresh his recollection, instead expecting Donaghue to recall a specific document from memory. Bartkowski's belief that Donaghue did not rely upon any document is consistent with his approach in deposing of Donaghue:
Answer (Donaghue). No. What I believe I've indicate to you in this case, and the reason for obtaining medical records was there were records which indicated that your client had, by previous history, herniated discs.
Question (Bartkowski). Go on. Where are those medical records?
A: Your clients - -
Q: Where are those medical records today?
A: Do you have them all with you? I'll point one out to you.
Q: Go ahead. Point one out.
A: Well, where are the records?
Q: Well. You said something just now. You said that what you were referring to was that you, at the time of the conversation, that you said that my client had medical records that show that the client has previous herniated discs. And I'm asking you, and I'm asking Allstate's lawyer, because he said that on the record, to show me where those records exist.
MR. WALTHEW: Put the records in front of him and he'll show you.
MR. BARTKOWSKI: How can I show him something that I deny exists?
THE WITNESS: Counsel, you made a statement that that doesn't exist.
MR. BARTKOWSKI: That the records don't existing. How can I produce something that I disagree with you and say does not exist?
THE WITNESS: Counsel, can I finish my answer?
In my opinion, there is a record that exists which suggests that.
MR. BARTKOWSKI: I'll ask you, Counsel for Allstate, to produce the records.
MR. Walthew; This is not a record that you don't have. Okay? This was a record that was produced in the case. Mr. Donaghue reviewed it at the time.
It was available to you and your client at the time.
This is not some mystical record, okay? If you want to refresh his recollection about which record it is, then you have to put the records in front of him. (Allstate's Mot. Summ. J., Deposition of Hugh Donaghue ("Donaghue Dep.") 32:9-33:25, June 26, 2008.) Rather than produce the record so that Donaghue could explain himself, Bartkowski proceeded to conclusively determine that no records "exist" which supports Donaghue's assertion.*fn19
Bartkowski notes that Crawford's comments were "[o]bviously when the plaintiff was telling the nurse she currently had four herniated discs, they are the four herniations attributed to the recent accident." (Crawford's Resp. Mot. Summ. J. 16.) It is not clear from the Summary that the herniations referenced were caused by the "recent accident." The "Past Medical History" section of the Initial Visit Summary references Crawford's four herniations. Similarly, the Summary's "Past Surgical History" addresses Crawford's "ankle surgery, wisdom teeth and eye surgery." (Allstate's Mot. Summ. J.; Ex. 44, 2006 Initial Visit Summary.) The Summary does not clearly indicate when the events listed in the past medical or surgical history occurred. Did they all arise at the same time? As a result of the 2005 accident? A reading of this Summary provides no answer to such questions. Resultingly, the origin of these four herniations is far from "obvious" - a fact underscored by Doctor Sedacca's report.
Prior to the February 2007 phone call between Bartkowski and Donaghue, Allstate's actions consistently indicated that they were not only concerned about Crawford's preexisting conditions, but also undertook reasonable steps to learn about them. Upon reviewing Crawford's medical records, Donaghue surmised that Crawford suffered from pre-existing back pain. The record of Crawford's own physician confirmed Donaghue's conjecture. While Crawford repeatedly notes that Donaghue refused to provide the relevant records, it is clear that Donaghue made repeated, reasonable efforts to provide the medical records to her counsel.*fn20 It is also clear that Donaghue, relying upon the entirety of the record, had reasonable concerns about Crawford's pre-existing conditions. Assuming that Bartkowski's description of his February 2007 phone call with Donaghue is correct, this Court still fails to see how Donaghue's statement is evidence of misrepresentation of "pertinent facts relating to the content of the medical records." (Compl. ¶ 19(a).)
4.) Allstate's improper release and subsequent delay in issuing the $100,000 UM settlement check*fn21
Crawford asserts that while Allstate offered her the entire $100,000 UM policy limit, that offer was issued with significant strings attached. Specifically, "defendant provided a Release which required that the plaintiff sign and first release the defendant from 'all claims.' This would have necessarily included first party wage loss benefits and this statutory claim for bad faith." (Compl. ¶ 16.) Crawford revised Allstate's release "releasing the defendant only for claims arising out of the Uninsured Motorist provision." (Compl. ¶ 17.) She asserts that due to her revisions, Allstate "purposely and maliciously withheld the check." (Id.) A close reading of the facts suggest that no evidence supports this claim.
On July 17, 2007, Donaghue wrote Bartkowski stating "[p]lease be advised that Allstate Insurance Company hereby tenders its $100,000 policy limits in the above captioned matter. Accordingly, I enclose a Release to be executed by the claimant." (Allstate's Mot. Summ. J.; Ex. 68, Donaghue July 17, 2007, letter.) After revising Allstate's release,*fn22 Bartkowski faxed the signed and revised release to Donaghue on July 26, 2007. (Id., Ex. 69, Signed and Revised Release.) Bartkowski also mailed a copy of the revised release to his client stating "[e]nclosed please find the revised Release. Allstate has not yet seen the revisions so I cannot predict if they will allow the language I have included." (Id., Ex. 70, Bartkowski July 25, 2007 letter.)
In early August, not having heard back from Donaghue - as he was on vacation, Bartkowski contacted Donaghue's office. (Id., Ex. 71, Aug. 6 call slip.) On Aug. 7, 2007, Bartkowski wrote Donaghue, complaining about Allstate's delay in issuing a settlement check.*fn23
(Id., Ex. 72, Bartkowski Aug. 7, 2007 letter.) He also sent Gallagher, the neutral arbitrator, a Motion to Compel Distribution. (Id., Ex. 73, Bartkowski Aug. 7, 2007 Gallagher letter.) Gallagher responded to Bartkowski's letter and motion, stating that
[h]aving reviewed the chronology of events as set forth in Plaintiff's Motion, and without commenting on the propriety of the Motion, it does not seem to me that Allstate is unreasonably dragging their feet in issuing the settlement check to Plaintiff's counsel. Since Mr. Donaghue is returning to his office one week from today, I suggest that Mr. Bartkowski speak to him at that time and I feel confident that Mr. Donaghue can make arrangements with Allstate to have the settlement check available to Mr. Bartkowski and his client. (Id., Ex. 74, Gallagher Aug. 7, 2007 letter.) Upon returning from vacation, Donaghue wrote Bartkowski stating that Allstate wanted to speak with him about the release before they issued the check. (Id., Ex. 75, Donaghue Aug. 13, 2007 letter.) Donaghue noted that "[w]e also required your tax I.D. number, which you supplied today, using your social security number." (Id.) Donaghue subsequently forwarded the settlement check to Bartkowski. (Id., Ex. 76, Donaghue Aug. 20, 2007 letter.)
In summation, Crawford asserts that Allstate delayed in issuing its settlement check to her because her attorney revised Allstate's release. Yet, the record is clear that: (1) Crawford's counsel did not check with Allstate before revising the release; (2) Allstate wanted to check with their counsel (Donaghue) before approving the revised release; (3) Donaghue's review of the release was delayed as he was on vacation; (4) the neutral arbitrator determined that "[h]aving reviewed the chronology of events as set forth in Plaintiff's Motion, and without commenting on the propriety of the Motion, it does not seem to me that Allstate is unreasonably dragging their feet in issuing the settlement check;" (5) Allstate did not object to the revised release (which they accepted completely); (6) Crawford received the $100,000 settlement check on August 21, 2007. Further, Allstate did not receive Crawford's taxpayer I.D. until August 13, 2007, issuance of any check prior to that date was an impossibility.
That Allstate was not delaying payment becomes even more apparent when examining Crawford's failure to actively pursue settlement of her wage loss claim. Bartkowski first spoke with Allstate about the procedures for wage loss coverage in November 2005. (Id., Allstate Claim Diary 10-11.)
Twenty-two months later, on August 23, 2007, Allstate adjuster Larry Scott spoke with Bartkowski about Crawford's wage loss claim explaining that Crawford had provided no wage loss documentation to Allstate. (Id. at 39.) That same day, Bartkowski wrote Allstate about this wage loss claim stating that, "[i]f we cannot settle this within ten days, I will sue Allstate." (Id., Ex. 77, Bartkowski Aug. 23 and Sept. 11, 2007 letter.) On September 10, 2007, Bartkowski provided Allstate with the required wage loss paperwork. (Claims Diary 40-41.) Two days later, a wage loss check was issued to Crawford on September 12, 2007. (Id.) This Court finds that no set of facts support Crawford's claim that Allstate: (1) either objected to her revised release; or (2) delayed in issuing any checks.
5. Allstate's Use of an Unfair Doctor and Arbitrator
Crawford asserts that Allstate's use of both Doctor Bonner and arbitrator Michael Murphy was "unfair" to her. (See Compl. ¶ 19(e),(h).) Like the assertion that Allstate representative Chretien backdated a letter sent to Bartkowski, these claims are baseless evidencing no support in the record.
Regarding Doctor Bonner, there is no indication that he acted improperly or unfairly. Crawford suggests that Donaghue and "other lawyers enlist Dr. Bonner repeatedly to prepare reports and to testify on behalf of their clients, whether they be plaintiff or defendant. (Crawford's Resp. Mot. Summ. J. 26.) Further "[t]o go repeatedly to the same physician for the reason that the opinions are predictably helpful is not only bad faith, it prevents Allstate from getting a genuine impartial understanding as to the severity of the condition, or an accurate prognosis of its insureds." (Id.)
While Bartkowski's concern about the accuracy of Allstate's information is admirable, the remainder of his assertions are conjecture. Such circumstantial evidence fails to sustain a claim against Doctor Bonner. A reading of the Bonner Report makes clear that he did not produce a report that was "predictably helpful" to Allstate much less in "bad faith." Doctor Bonner concluded that:
[b]ased upon the history given to me by the patient, the physical examination performed, and the medical documentation reviewed, it is my medical opinion, within a reasonable degree of medical certainty, that any injury that had been sustained on 9/8/05 has resolved. The patient continues with subjective complaints, but without objective findings on physical examination. No further treatment would be considered reasonable or necessary in relation to the incident of 9/8/05. (Bonner Report 2.) The Report's conclusions were appropriately cabined to the evidence before him and qualified as his own opinion. Given the lack of evidence -- and coupled with her silence about Allstate's selection of Doctor Zimmerman to conduct the other IME -- it appears that Crawford's objection to Doctor Bonner centers on his medical findings rather than on any actual evidence of bad faith.
Crawford also asserts that Allstate's selection of Michael Murphy as an arbitrator was unfair. (Compl. ¶ 19(h).) Crawford has provided no evidence that Murphy was an improper choice as an arbitrator. Further, this claim is moot as the parties never utilized arbitration.*fn24
Crawford has provided no factual basis for her claim that either Doctor Bonner or Michael Murphy were unfair to her claim. More importantly, even if both men were biased against her, Crawford has failed to show that she suffered any harm.
For the reasons discussed above Allstate's Motion for Summary Judgment is granted in its entirety. An appropriate order follows.