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Richardson v. United Financial Casualty Co.

United States District Court, Third Circuit

May 30, 2013

LESLEY RICHARDSON
v.
UNITED FINANCIAL CASUALTY COMPANY

MEMORANDUM

THOMAS N. O’NEILL, JR., J.

Plaintiff Lesley Richardson claims that defendant United Financial Casualty Company acted in bad faith in its handling of her claim for underinsured motorist benefits after she was involved in a motor vehicle accident on October 18, 2006. Defendant now moves for summary judgment. For the reasons that follow, I will grant defendant’s motion.

BACKGROUND

On October 18, 2006, plaintiff was involved in a motor vehicle accident. Dkt. No. 10 at ¶ 1. Plaintiff testified that her vehicle was pushed forward in the accident “such that she had to jam on the brakes to stop it, and that her chest struck the steering wheel and that the back of her head struck the headrest after he[r] seatbelt locked up as a result of the collision.” Dkt. No. 12 at ¶ 15. The police report for the accident noted no damage to her vehicle. Dkt. No. 10 at ¶ 2.

At the time of the accident, plaintiff was operating a 2005 Toyota Corolla owned by VNA Community Services, Inc. Id. at ¶ 1. Defendant insured the Corolla pursuant to an automobile insurance policy it issued to VNA (policy number 04123570-3). Id. at ¶ 3. The policy provided up to $1, 000, 000 in underinsured motorist coverage, subject to the terms and conditions of the policy, for damages an insured would be “entitled to recover from the [at-fault driver] of an underinsured auto because of bodily injury.” Id. at ¶¶ 4, 5. In the event that an insured and defendant could not agree on the amount of damages sustained by the insured, the Policy provided that the amount would be “determined by arbitration.” Id. at ¶ 7.

Plaintiff submitted a UIM claim to defendant through her UIM counsel, Joseph DeSimone, in a November 29, 2007 letter to defendant. Id. at ¶ 10. On December 4, 2007, Progressive opened and assigned the UIM claim to claims representative Christine Friel. Id. at ¶ 11. At the time, Friel had more than 25 years of experience in the insurance industry. Id. at ¶ 12. Friel determined that the other driver was at fault for the accident in which the Corolla sustained no damage. Id. at ¶ 13.

On December 4, 2007, DeSimone informed Friel that the at-fault driver had $50, 000 in liability insurance coverage through Allstate Insurance Company, see id. at ¶ 17, meaning that plaintiff would be entitled to underinsured motorist benefits from defendant only if the value of her injury claim exceeded $50, 000.

By January 14, 2008, plaintiff provided Friel with documentation that she had received treatment from fifteen medical providers and that she had combined lost wages and medical expenses in excess of $57, 267.70. Dkt. No. 12 at ¶ 4. On February 6, 2008, Friel evaluated the medical records plaintiff had submitted. Dkt. No. 10 at ¶ 19. Friel noted that plaintiff was limited to working light duty at the time of the October 18, 2006 motor vehicle accident because of chronic back pain.[1] Id. at ¶ 26. Friel also remarked that plaintiff’s medical records documented a history of chronic pain prior to the accident. Id. at ¶ 21; see also Dkt. No. 14 at ¶ 21. She documented plaintiff’s alleged injuries as including “cervical strain and sprain – lumbar strain and sprain – aggravation of pre-existing [herniated nucleus pulposus (“HNP”)] at L5-S1 – L5-S1 right microdiscectomy, ” Dkt. No. 10 at ¶ 20, and aggravation of chronic pain syndrome. Dkt. No. 14 at ¶ 20. Friel noted that four months before the accident, in June 2006, plaintiff had an MRI of her lumbar spine and that a post-accident MRI of plaintiff’s lumbar spine showed that the “herniated disc was unchanged.” Dkt. No. 10 at ¶ 22. The June 2006 MRI report documented an “L5-S1 right paracentral disc herniation in contact with the S1 nerve root” and a “mild disc bulge, L4-5.” Id. at ¶¶ 23-24. The November 2006 post-accident MRI documented “no change in the appearance of the disc herniation at the L5-S1 level on the right.” Id. at ¶ 25.

On October 30, 2006, Dr. Randy Robinson had written that “while [plaintiff] had [ ] been doing well with interventional therapy for management of her chronic lumbar radiculopathy [prior to the accident, since then she] has been having increasing lumbar radiculopathic symptoms and low back pain spasm with an addition of cervical spasm.” Dkt. No. 12-17 at ECF p. 2. In a November 6, 2006 report, Dr. Richard A. Goldberg wrote that plaintiff “had several epidural steroid injections [after] June 2006 and did not need surgical intervention” at that point in time. Dkt. No. 12-18 at ECF p. 3. A November 17, 2006 report from Dr. Guy A. Lee stated that plaintiff had gotten “rid of most of her pain and was doing well” prior to the motor vehicle accident. Dkt. No. 12-19 at ECF p. 2. Lee also wrote that plaintiff “already had three to four epidurals prior to the accident” and was “not able to get any more.” Id. Plaintiff ultimately had back surgery on December 7, 2006, approximately 7 weeks after the motor vehicle accident. Dkt. No. 12 at ¶ 30.

After her February 6, 2008 review of plaintiff’s medical records, Friel noted that she had a question regarding “whether [plaintiff’s] disc surgery is related to the motor vehicle accident. I accept temporary aggravation of the pre-existing HNP at L5-S1.” Dkt. No. 10 at ¶ 27. To further investigate whether plaintiff’s surgery and resulting complaints were caused by the accident, Friel planned to obtain all of plaintiff’s pre- and post-accident medical records. Id. at ¶ 28.

On February 7, 2008, Friel’s supervisor Brian Haeflein, Senior Claims Manager, who manages the Pennsylvania Large Loss Unit for defendant and other Progressive entities, noted that “there are causation arguments as insured was diagnosed with HNP prior to loss and there also seems to be a recommendation for surgery prior to our loss as well. Need to determine if surgery will be related to our accident, agree with Christine’s plan to get info listed.” Id. at ¶¶ 30, 31.

On March 5, 2008, Friel reviewed additional medical records received from plaintiff’s UIM counsel. Id. at ¶ 33. A June 22, 2006 report from Dr. Guy Lee stated that plaintiff’s “leg pain with a disc herniation is potentially surgical and most likely would involve a right L5-S1 microdiskectomy if conservative management fails and she has leg pain that she cannot tolerate.” Id. at ¶ 34. A report from an August 11, 2006 lumbar epidural injection noted a lumbar nerve root block at L4 on the right, L5 on the left and S1 on the right on August 11, 2006. Id. at ¶ 35. On September 1, 2006, plaintiff underwent another lumbar nerve root block at L4 on the right, L5 on the left and S1 on the right. Id. at ¶ 36. On September 26, 2006, plaintiff underwent a lumbar injection at L2 on the right, L3 on the right, L4 on the right, L5 on the right and at the sacral ala on the right. Id. at ¶ 37. After Friel’s review of these records, she again noted a “question whether [Plaintiff’s] surgery is in fact related to the [accident] and will likely require an [independent medical examination] once I get the employment records.” Id. at ¶ 38 (alterations in original). Later, when plaintiff gave her statement under oath, she testified that “[t]he first injection really didn’t do anything. I mean, I felt the difference by – well, by the second one and to the – to the last one. I had a big improvement by the – I’d say by the third one it was a real big improvement.” Dkt. No. 12-13 at 33:17-22.

On May 14, 2008, Friel noted in her claims entry log that she still had not received plaintiff’s employment records. Dkt. No. 16 at Richardson 1039. She noted that plaintiff’s UIM counsel said he had “not had an opportunity to review them and send them out as his trial schedule has been busy” but that he expected to get the information to her in a week to ten days. Id. She noted that she would “likely need a records review from a neurosurgeon to address” whether plaintiff’s pre-existing back condition had been “stable at the time of” the accident. Id.

On June 25, 2008, Friel noted that plaintiff’s UIM counsel was “still not cooperative in providing [her with] his client’s employment records as requested.” Id. at Richardson 1038. On December 11, 2008, Friel noted that the paralegal for plaintiff’s UIM counsel “confirmed that they have all of the insured’s work records but unfortunately the [attorney] has been in trial and has been unable to review them . . . .” Id. at Richardson 1036-37.

Plaintiff’s UIM counsel provided Friel with plaintiff’s employment records on or around December 17, 2008. Dkt. No. 10 at ¶ 40; see also Dkt No. 16 at Richardson 1036. The records confirmed that, although she was working full time, plaintiff was limited to working in a light duty capacity immediately prior to and at the time of the October 18, 2006 motor vehicle accident. Dkt. No. 10 at ¶¶ 41, 43.

Plaintiff’s UIM counsel provided Friel with updated medical records in February, March and April 2009 and with worker’s compensation lien information and medical cost projections in May and June 2009. Id. at ¶¶ 44, 46. Friel documented that plaintiff’s worker’s compensation lien was in the amount of approximately $63, 000 and her projected future medical expenses were in the amount of $680, 053.37. Id. at ¶¶ 45, 47.

Friel completed an evaluation of plaintiff’s claim on June 17, 2009, concluding that plaintiff was not “underinsured” because Friel evaluated the value of the injuries caused by the October 2006 accident as falling within the ...


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