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Young v. Liberty Mutual Group Incorporated

United States District Court, D. Arizona

March 17, 2015

Dawn Young, Plaintiff,
v.
Liberty Mutual Group Incorporated, et al., Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Before the Court is Defendant's motion for summary judgment. (Doc. 169). The Court now rules on the motion.

I. Background

This case arises from an injury Plaintiff sustained in November of 2010 while she worked as a nurse for Glencroft Care Center, which is insured by Defendant. (Plaintiff's Statement of Facts ("PSOF"), Doc. 173, at ¶ 1; Doc. 156-1 at ¶ 2). Plaintiff initially sought treatment for her injury on November 22, 2010 at Total Medical Care, an urgent care facility, where she complained of low back and leg pain. (Defendant's Statement of Facts ("DSOF"), Doc. 170 at ¶ 1; Plaintiff's Response to Defendant's Statement of Facts ("PRDSOF"), Doc. 174, at ¶ 1). Plaintiff returned to Total Medical on November 26, 2010, reporting that she felt a "twinge" in her back while lifting at work. (DSOF at ¶ 3; PRDSOF at ¶ 3). Plaintiff was later seen by Dr. Judith Tuck at U.S. Health Workers ("USHW"). (DSOF at ¶ 5; PSOF at ¶ 12).

Plaintiff completed an accident report with her employer on December 6, 2010. (DSOF at ¶ 7; PRDSOF at ¶ 7). Defendant received the claim the next day, December 7, 2010 and assigned the claim to indemnity adjuster Mike Dumas. (DSOF at ¶ 8; PRDSOF at ¶ 8). Mr. Dumas spoke with Plaintiff on December 20, 2010. (DSOF at ¶ 9; PRDSOF at ¶ 9). During the conversation, Plaintiff told Mr. Dumas that she pushes and pulls heavy carts and helps move heavy patients, that she had been off work since November 18, 2010, and that she was released to modified duty on November 29, 2010. ( Id. ). Apparently unbeknownst to Mr. Dumas, Plaintiff was terminated from her job for insubordination on December 21, 2010, after which she received unemployment benefits from the state until she moved to Missouri in early 2012. (DSOF at ¶¶ 10, 41; PRDSOF at ¶¶ 10, 41).

Dr. Tuck continued to treat Plaintiff through January 24, 2011, when Dr. Tuck released Plaintiff to work without restrictions and referred Plaintiff to a pain management specialist, Dr. Otto Uhrik. (DSOF at ¶¶ 11, 25; PRDSOF at ¶¶ 11, 25). On April 28, 2011, Mr. Testini petitioned the ICA for permission to change doctors from Dr. Urik to Dr. Teny McLean, a spinal surgeon. The ICA approved the change in physicians on May 9, 2011. (DSOF at ¶ 35; PRDSOF at ¶ 35; PSOF at ¶ 19; DRPSOF at ¶ 19). On May 17, 2011, Plaintiff again requested permission to change physicians to Dr. Mark L. Williams, a pain specialist. (DSOF at ¶ 15; PRDSOF at ¶ 15). Defendant objected to this change, but the ICA eventually approved it. (DSOF at ¶¶ 17, 40; PRDSOF at ¶¶ 17, 40). Dr. Williams never treated Plaintiff. (DSOF at ¶ 18; PRDSOF at ¶ 18).

Mr. Dumas initially accepted Plaintiff's claim in January 28, 2011, but disputes eventually arose and the parties ended up litigating before the Industrial Commission of Arizona ("ICA"). The parties signed a stipulation of benefits on September 23, 2011, which an ICA Administrative Law Judge ("ALJ") approved on October 6, 2011. (DSOF at ¶ 16; PRDSOF at ¶ 16). Defendant, however, did not pay the agreed-to award until November 11, 2011, and only after Plaintiff filed a bad faith claim with the ICA. (DSOF at ¶ 53; PRDSOF at ¶ 53; PSOF at ¶ 43; DRPSOF at ¶ 43).

After referring Plaintiff to an independent medical examiner ("IME"), who opined that Plaintiff had reached maximum medical improvement ("MMI") and did not sustain any permanent partial disability as a result of her injury, Defendant closed the claim on September 21, 2012, and the claim remains closed and resolved. (DSOF at ¶¶ 21, 22, 24; PRDSOF at ¶¶ 21, 22, 24).

Plaintiff filed suit in state court, and Defendant removed to this Court on October 29, 2012. Defendant moved for summary judgment. The motion is fully briefed and oral argument was held on March 10, 2015.

II. Summary Judgment Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations... admissions, interrogatory answers, or other materials, " or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Id. 56(c)(1)(A)&(B). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. To be entitled to summary judgment, the movant must support its motion with evidence that would entitle it to a directed verdict at trial, id. (citing Fed.R.Civ.P. 50(a)); i.e., the party must show that "a reasonable jury would not have sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a). The burden then shifts to the non-movant to establish the existence of material fact. Celotex Corp., 477 U.S. at 323. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

III. Bad Faith

A. Legal ...


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