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Roman v. Berkshire Hathaway Homestate Insurance Co.

United States District Court, D. Arizona

September 6, 2017

Manuel Roman, Plaintiff,
Berkshire Hathaway Homestate Insurance Co., Defendant.


          Neil V. Wake Senior United States District Judge

         Before the Court is Defendant's Motion for Summary Judgment. (Doc. 55). For the following reasons, the Motion will be granted.


         Summary judgment should be granted if the evidence reveals no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that might affect the outcome of the suit under the governing law, and a factual dispute 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). It is the moving party's burden to show there are no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon such a showing, however, the burden shifts to the non-moving party, who must then “set forth specific facts showing that there is a genuine issue for trial” without simply resting on the pleadings. Anderson, 477 U.S. at 256. To carry this burden, the non-moving party must do more than simply show there is “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Id. at 587.


         Plaintiff Manuel Roman (“Roman”) worked as a truck driver for Shipper's West Truckline, Inc. On September 3, 2013, he fell from the company truck as he exited the cab and suffered a head injury. A few days later, on September 7, 2013, Roman went to the emergency room at Wheaton Franciscan Healthcare (“Wheaton”) in Wisconsin. At Wheaton, he was diagnosed with systolic hypertension and a concussion.

         Roman next sought medical care on October 11, 2013, at Arrowhead Regional Medical Center (“Arrowhead”) in California. At Arrowhead, a CT scan and examination revealed a subdural hematoma. Roman received a subdural drain to dispel blood and relieve pressure and was discharged on October 15, 2013. The discharge instructions noted that Roman should “Resume Normal Activity and Return to work” the next day. Roman returned to Arrowhead on October 31, 2013. The physician's notes from that appointment concluded: “Today the patient is doing well, with no symptoms, no complaints, including denies pain or any neurological deficit.” Roman filed a Worker's Report of Injury with the Industrial Commission of Arizona (“ICA”) on or around November 8, 2013. In the report, Roman noted he suffered a “brain injury” described as a “blood clot in brain.” The report also included contact information for Roman's employer and limited information about medical treatment Roman received.

         Neither Roman nor his employer notified Berkshire Hathaway Homestate Insurance Co. (“Berkshire”) of Roman's injury after the incident. Berkshire first learned of Roman's claim when it received a “Notification of Claim” from the ICA, dated November 14, 2013. The notification is a one-page document. It does not provide any contact information for Roman, specify the nature or extent of any injury, or indicate whether Roman sought or received any medical treatment. Although the notification is dated November 14, 2013, the record does not reveal when Berkshire actually received it.

         On November 22, 2013, Berkshire opened a claim file based on the notification, and by November 25, it had assigned an adjuster to handle the claim. The assignment directed the adjuster to “verify [Roman's] correct mailing address” and “obtain other missing info, ” explaining the file was set up based on limited information. It also stated that Berkshire unsuccessfully attempted to find Roman's address before assigning the file to the adjuster.

         The adjuster began evaluating the claim on the same day he received it. His first contact was a phone call with the employer on November 25, 2013. The employer informed the adjuster that Roman had not reported an injury and that his final day with the company was on September 13, 2013. The adjuster called again two days later, on November 27, to request Roman's correct contact information, but was unable to reach the employer or leave a message. The adjuster called again on December 2 and emailed on December 4 to request Roman's correct contact information. Finally, on December 5, after obtaining Roman's phone number, the adjuster contacted Roman to discuss his claim. He described the conversation in his notes as follows:

I was able to speak with [Roman], but he did not go into specifics of the claim or his injury. He informed me that he needs medical treatment and that he has suffered brain hemorrhaging. He also informed me that he did report the injury to his employer and that his injury is due to his employer's negligence. When I asked [Roman] to provide more information about the claim and injury, he indicated that he would prefer to have an attorney speak with me; [Roman] was not willing to continue the conversation. I provided my contact information and instructed [Roman] to have his attorney contact me as soon as possible.” That same day, the claims adjuster called the employer. The employer again informed him it “never received any report of injury from [Roman]” and that Roman drove an additional ten days after his injury.

         Based on this preliminary investigation, the adjuster concluded he needed more information to determine the compensability of Roman's claim. He noted in the claims diary: “As neither the claimant nor the employer were able to provide any information about the alleged injury, the compensability of said injury is in question.” Accordingly, on December 6, 2013, Berkshire submitted a “Notice of Claim Status” to the ICA, which indicated Roman's claim was denied pending further investigation.

         The claims adjuster called Roman again on December 6. In that call, he obtained more information about the incident and medical care Roman received, including phone numbers for both Wheaton and Arrowhead. He called both facilities that same day and requested Roman's medical records. The Wheaton records arrived on December 19, 2013, and indicated two diagnoses: systolic hypertension and a concussion. The records also showed a neurosurgeon reviewed the medical findings, including a CT scan, and concluded they were “not consistent with traumatic injury.” The adjuster made multiple efforts to procure the records from Arrowhead. He sent a faxed request for records, as Arrowhead required, on December 6. The request was not processed, however, and in a follow-up call with the hospital on January 3, 2014, the hospital required another faxed request. The adjuster sent another request that same day and then another on January 7, 2014. On January 17, 2014, he called Arrowhead to check on the request. The hospital said it was more than two weeks behind on processing such requests and suggested he call back the following week. He did so on January 24, 2014. In that call, Arrowhead confirmed it had processed the request and that the records would be mailed either that same day or the next business day. Berkshire received the Arrowhead records on January 30, 2014. The records indicated Roman suffered a subdural hematoma and received a subdural drain to dispel blood and relieve pressure. They made no finding of a concussion.

         On February 3, 2014, within days of receiving and reviewing the Arrowhead records, the adjuster sought to schedule an independent medical examination (“IME”). The appointment was scheduled for February 27, 2014, with an independent neurologist, Dr. Leo Kahn. Dr. Kahn concluded, in a report received no earlier than March 3, 2014, that Roman's “subdural hematoma is directly related to the 09/03/13 industrial injury” and that his treatment at Arrowhead was “in essence life-saving.” Based on this report, Berkshire accepted Roman's claim on March 6, 2014. Berkshire has paid all of Roman's medical bills submitted to it for related medical treatment since that time.

         Roman filed this action on December 2, 2015. The lawsuit alleges Berkshire breached its duty of good faith and fair dealing in handling Roman's workers' compensation claim and seeks compensatory and punitive damages. Berkshire moves for summary judgment on all claims.

         III. ...

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