United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
NORA BARRY FISCHER, District Judge.
Plaintiff Anthony Mineo ("Mineo") filed the instant case against Defendant GEICO ("GEICO") on October 16, 2012 in the Court of Common Pleas of Allegheny County, Pennsylvania, (Docket No. 1-3 at 1), and GEICO removed this case to the Western District of Pennsylvania, on October 25, 2012, (Docket No. 1). Presently pending before the Court is GEICO's Partial Motion for Summary Judgment on Mineo's claim that GEICO acted in bad faith. (Docket No. 24). Upon consideration of all the parties' filings, the parties' arguments presented at a Motion Hearing held on April 17, 2014, (Docket No. 34), the parties' supplemental record materials, (Docket Nos. 36-40, 42-49), the parties' supplemental briefs and findings of fact, (Docket Nos. 56-57, 60-61), and for the reasons more fully stated herein, Defendant's Motion, (Docket No. 24), is DENIED.
The instant claim arises from Mineo's request for underinsured motorist ("UIM") benefits against his insurance carrier, GEICO, stemming from a motor vehicle accident that occurred on August 16, 2008 at approximately 12:30 PM, in which Mineo was rear-ended by Florence Walls. (Docket No. 1 at 1). Mineo is a 67-year-old Vietnam War veteran who served two tours of duty in Vietnam, with the first tour spanning thirteen months. (Docket No. 30-5 at 10-11). Six or seven months into his second tour, he was wounded during combat, receiving two gunshot wounds in the right shoulder and lower mandible. (Docket No. 30-5 at 7). One of the two bullets went through the bottom of his chin and came out of his mouth, requiring his entire chin to be totally reconstructed during several surgical operations around July 1966. (Docket No. 30-5 at 8-14). The other went through his right shoulder, which had to be fused, resulting in no muscle from the top of the shoulder down onto the bone. (Docket No. 30-5 at 14). As a result, the range of motion for his right shoulder became permanently limited; since 1967, Mineo has been unable to put his hand behind his back or neck. (Docket No. 30-5 at 15). Following his discharge from the hospital in February 1967, Mineo received a discharge of medical under honorable conditions, as well as a Purple Heart, Unit Citation, Vietnamese Unit Citation, and an Armed Forces Expeditionary Medal. (Docket No. 30-5 at 9).
After working at several different positions with various employers, Mineo began working for Highmark Inc. as a customer service agent at or around 2001, and went into claim adjustments. (Docket No. 30-5 at 22). Mineo was promoted to a unit in which he did all the inpatient and outpatient precertifications, wherein he would authorize individuals to go to the hospital and determine whether a precertification was necessary according to their plans with Highmark. (Docket No. 30-5 at 22). Mineo stayed with Highmark until July 2011, when he retired because he could not do the work anymore due to injuries he sustained to both his shoulders. (Docket No. 30-5 at 22-23).
Meanwhile, Mineo had been injured, as noted, due to a motor vehicle accident that occurred on August 16, 2008. (Docket No. 1). GEICO's log file for Mineo's claim discloses that Mineo lost and regained consciousness prior to being taken to Mercy Hospital by emergency medical services. (Docket No. 30-3 at 39-40). Imaging tests for fracture and other trauma were negative, and Mineo was released, with instructions to return in the event of complications. (Docket No. 30-4 at 1-3).
After the accident, Mineo was referred to physical therapy at the Centers for Rehab Services. (Docket No. 30-4 at 18). His initial visit to physical therapy took place on August 27, 2008, but he forgot his prescription, so no physical therapy was performed. (Docket No. 30-4 at 19). He began physical therapy the next day. (Docket No. 30-4 at 19). The "Treatment Diary" shows that Mineo underwent twenty supine left shoulder retractions, and continued with this treatment and other exercises consistently through November 24, 2008. (Docket No. 30-4 at 20-27). During treatment, Mineo complained of shoulder locking on August 28, 2008, (Docket No. 30-4 at 19), and that his neck and shoulder were very sore on September 3, 2008, (Docket No. 30-4 at 28).
According to Mineo's physical therapy record from September 8, 2008, Mineo reported slipping on the grass and falling on his left side on September 5, 2008, and complained of increasing shoulder pain. (Docket No. 30-4 at 29). The record also notes that Mineo planned to see his doctor for the shoulder pain on September 12, 2008. (Docket No. 30-4 at 29). During his visit with Dr. Richard Urban, Mineo advised the doctor that his left shoulder was worse, due to the auto accident. (Docket No. 30-4 at 30). Three weeks after the September 8, 2008 record, Mineo's physical therapy assessment contained a notation that "Patient complains of left shoulder catching in elevated position-no pain at rest, " with an onset date of August 16, 2008. (Docket No. 30-4 at 31).
Eventually, Mineo elected surgical intervention. He saw an orthopedic surgeon, Dr. Robert E. Schilken,  on October 13, 2008, with follow-up visits on November 3, 2008 and February 17, 2009. (Docket No. 30-4 at 32-34). At each of these visits, he reported pain and difficulty with everyday motion, but on physical exam he had full range of motion with pain at extreme flexion. (Docket No. 30-4 at 32-34). He underwent surgery for "[a]rthroscopic subacromial decompression" and "mini open rotator cuff repair" on April 9, 2009, performed by Dr. Schilken, whose post-operative diagnosis was "left rotator cuff tear." (Docket No. 30-1 at 27). After surgery, Mineo appeared to be doing quite well, yet he complained of trouble sleeping and shoulder pain at night during his July 21, 2009 follow-up visit. (Docket No. 30-4 at 35). Two years later, on November 30, 2011, he returned for a second follow-up appointment and reported worsening pain. (Docket No. 30-4 at 36). At both follow-ups, he received injections of steroids. (Docket No. 30-4 at 35-36).
Meanwhile, Mineo notified GEICO of his UIM claim on January 22, 2010. (Docket No. 30-3 at 38-41). GEICO granted Mineo consent to settle the underlying claim on March 8, 2010, and offered him $10, 000 to settle his entire claim. (Docket No. 30-3 at 46-47). Mineo responded that this offer was not acceptable. (Docket No. 30-3 at 47). In turn, GEICO replied by informing Mineo that it took the position that his shoulder pain apparently started and increased only after he fell on his left side, as recorded in the September 8, 2008 physical therapy record. (Docket No. 30-3 at 47).
Although Jeff Klug ("Klug"), Mineo's physical therapist, declined to revise the September 8, 2008 entry, he wrote a letter to GEICO dated June 25, 2010 explaining that Mineo "had significant Left shoulder dysfunction at the time of initial evaluation on 8/27/08 before reporting fall on 9/8/08." (Docket No. 30-4 at 37). Notwithstanding the letter from Klug, GEICO wrote a formal letter to Mineo on July 15, 2010, extending its $10, 000 offer. (Docket No. 30-3 at 48). Mineo responded by explaining that he had complained of left shoulder pain prior to the reported fall. (Docket No. 30-3 at 47). Charmeka Stewart ("Stewart"), GEICO's claims representative, advised Mineo that GEICO would not change its offer to Mineo because despite his complaints of left shoulder pain prior to the reported fall, there was no evidence of treatment for this pain. (Docket No. 30-3 at 48). Stewart explained that GEICO's offer was based on injuries sustained in the motor vehicle accident, and GEICO did not dispute Mineo's claim of significant left shoulder dysfunction as of August 27, before the reported fall. (Docket No. 30-3 at 48). However, the physical therapy record apparently showed that Mineo fell on his shoulder, after which he had increased pain and went to see his doctor; despite his prior complaints of shoulder pain, he did not seek treatment for same until after the reported fall, at which point he had increased pain and began treatment. (Docket No. 30-3 at 48).
Two weeks later, Klug called GEICO to discuss the contested physical therapy record, and Stewart memorialized her discussion with Klug within the log file. (Docket No. 30-3 at 49). Stewart made the following notation: "Dr Stated He Is Not Going To Change His Records Because It Is What It Is. I Explained There Really Isnt Anything For Him To Do Although I Appreciated His Call and He Thanked Me for My Time" (Docket No. 30-3 at 49), even though Klug's prior letter established that Klug was not a doctor, but a physical therapist, (Docket No. 30-4 at 37). Seventeen days after her conversation with Klug, Stewart wrote a letter to Mineo confirming the conversation and reaffirming GEICO's position and offer for $10, 000. (Docket No. 30-3 at 49).
In January 2011, Elaine Rensing ("Rensing"), Stewart's supervisor, entered a note in the log file that Mineo believed his claim was worth much more than GEICO did, and that Stewart should continue efforts to resolve the claim. (Docket No. 30-3 at 49). However, the parties were unable to come to an agreement, Mineo retained an attorney in April 2011, (Docket No. 30-3 at 50), and he filed the instant Complaint on October 16, 2012 in the Allegheny County Court of Common Pleas. (Docket No. 30-1 at 1). About one week later, on October 24, 2012, Danielle Pelletier entered the final notes in the GEICO log file, writing that the file would be referred out and that Mineo would not remove or stay his claim of bad faith against GEICO. (Docket No. 30-3 at 57).
Dr. Schilken provided a medical opinion as a treating physician on February 11, 2013, that: (1) Mineo's injuries, including his left rotator cuff tear and subsequent repair, were related to the August 16, 2008 automobile accident; (2) Mineo's current complaints of pain, etc., are related and chronic in nature; and (3) Mineo was disabled from employment from the date of surgery, April 9, 2009 through June 15, 2009, when he was released to return to work, with limitations. (Docket No. 30-4 at 38). The Court notes that the log file contains no ...