27
Fla. L. Weekly Fed. D57
Fla. L. Weekly Fed. D57
Insurance
— Uninsured motorist — Bad faith — First-party action against insurer
pursuant to Florida Civil Remedy Statute and Unfair Insurance Trade Practices
Act alleging insurer acted in bad faith in declining to settle uninsured
motorist claim and engaged in unfair claim settlement practices in the handling
of the claim — Insurer did not act in bad faith by refusing to tender UM
policy limits during 60-day cure period following presuit civil remedy notice
where insurer timely reviewed demand package received from insured and
concluded, based on medical records, that it did not act in bad faith when it
determined insured’s claim was within tortfeasor’s policy limits — Insurer
failed to demonstrate within reasonable degree of medical probability that he
had suffered permanent injury — Possibility of future surgical intervention
was insufficient to provide notice to insurer of permanent injury — Injuries
did not warrant consideration of non-economic damages under Florida law —
Insurer’s economic damages did not trigger duty to pay UM policy limits where
insured had incurred no out-of-pocket economic damages — Claims handling
procedures — It was not bad faith for insurer to rely on representations from
insured’s counsel and/or counsel’s office that all medical records necessary
for insurer to make a determination had been provided — Insurer’s act of
closing out insured’s file and its purported use of computer software system in
evaluating claim were not evidence of bad faith under circumstances — Unfair
claim settlement practices — Evidence did not support allegation that insurer
violated statutory provisions or otherwise engaged in unfair practices, but
instead shows that insurer undertook prompt investigation of claims upon being
notified of injury; continued to follow up with counsel concerning updates
regarding insured’s treatment, signed authorizations, and other matters
affecting claim; explained to insured why it would not tender UM limits
following notice of civil remedy, while advising insured that it would consider
any additional information to assist it in properly resolving claim; and
ultimately immediately tendered full UM policy limits when it was presented
with medical records that could reasonably trigger the UM coverage
— Uninsured motorist — Bad faith — First-party action against insurer
pursuant to Florida Civil Remedy Statute and Unfair Insurance Trade Practices
Act alleging insurer acted in bad faith in declining to settle uninsured
motorist claim and engaged in unfair claim settlement practices in the handling
of the claim — Insurer did not act in bad faith by refusing to tender UM
policy limits during 60-day cure period following presuit civil remedy notice
where insurer timely reviewed demand package received from insured and
concluded, based on medical records, that it did not act in bad faith when it
determined insured’s claim was within tortfeasor’s policy limits — Insurer
failed to demonstrate within reasonable degree of medical probability that he
had suffered permanent injury — Possibility of future surgical intervention
was insufficient to provide notice to insurer of permanent injury — Injuries
did not warrant consideration of non-economic damages under Florida law —
Insurer’s economic damages did not trigger duty to pay UM policy limits where
insured had incurred no out-of-pocket economic damages — Claims handling
procedures — It was not bad faith for insurer to rely on representations from
insured’s counsel and/or counsel’s office that all medical records necessary
for insurer to make a determination had been provided — Insurer’s act of
closing out insured’s file and its purported use of computer software system in
evaluating claim were not evidence of bad faith under circumstances — Unfair
claim settlement practices — Evidence did not support allegation that insurer
violated statutory provisions or otherwise engaged in unfair practices, but
instead shows that insurer undertook prompt investigation of claims upon being
notified of injury; continued to follow up with counsel concerning updates
regarding insured’s treatment, signed authorizations, and other matters
affecting claim; explained to insured why it would not tender UM limits
following notice of civil remedy, while advising insured that it would consider
any additional information to assist it in properly resolving claim; and
ultimately immediately tendered full UM policy limits when it was presented
with medical records that could reasonably trigger the UM coverage
ROBERT WOJCIECHOWSKI, Plaintiff, v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE, Defendant. U.S. District Court,
Middle District of Florida, Tampa Division. Case No: 8:14-cv-03176-MSS-TBM.
December 27, 2016. Mary S. Scriven, Judge. Counsel: Paul Castagliola, Paul
Castagliola, P.A.; and Shannon Dolson and Stephanie Miles, Swope Rodante, P.A.,
for Plaintiff. Jennifer Claire Worden, Kyle W. Maxson, and Daniel Martinez,
Martinez Denbo, LLC, for Defendant.
ALLSTATE PROPERTY AND CASUALTY INSURANCE, Defendant. U.S. District Court,
Middle District of Florida, Tampa Division. Case No: 8:14-cv-03176-MSS-TBM.
December 27, 2016. Mary S. Scriven, Judge. Counsel: Paul Castagliola, Paul
Castagliola, P.A.; and Shannon Dolson and Stephanie Miles, Swope Rodante, P.A.,
for Plaintiff. Jennifer Claire Worden, Kyle W. Maxson, and Daniel Martinez,
Martinez Denbo, LLC, for Defendant.
ORDER
THIS CAUSE comes before the Court for consideration of the Motion for
Summary Judgment (Dkt. 38) (“Motion”) filed by Defendant Allstate Property and
Casualty Insurance, the Response in Opposition thereto (Dkt. 55) filed by
Plaintiff, Robert Wojciechowski, and the Reply (Dkt. 56) filed by Allstate.
Upon consideration of all relevant filings, case law, and being otherwise fully
advised, the Court GRANTS Allstate’s Motion for the reasons stated
herein.
Summary Judgment (Dkt. 38) (“Motion”) filed by Defendant Allstate Property and
Casualty Insurance, the Response in Opposition thereto (Dkt. 55) filed by
Plaintiff, Robert Wojciechowski, and the Reply (Dkt. 56) filed by Allstate.
Upon consideration of all relevant filings, case law, and being otherwise fully
advised, the Court GRANTS Allstate’s Motion for the reasons stated
herein.
I. BACKGROUND
a. Procedural History and Status of
the Case
the Case
Plaintiff, Robert Wojciechowski,
brought this action against Defendant, Allstate, seeking damages under the
Florida Civil Remedy Statute, Fla. Stat. § 624.155, and the Unfair Insurance
Trade Practices Act, Fla. Stat. § 626.9541.1 (Dkt. 1) Specifically, Mr.
Wojciechowski contends that Allstate acted in bad faith in declining to settle
his uninsured motorist (“UIM” or “UM”) claim and engaged in unfair claim
settlement practices in the handling of the claim. (Id.) Allstate seeks
summary judgment in its favor as to both claims, arguing that evaluating
Allstate’s conduct during the Civil Remedy Notice Cure Period, between January
6, 2012 and March 7, 2012, no reasonable jury could conclude that Allstate
acted in bad faith because Mr. Wojciechowski’s claims did not warrant a value
of $230,000.2 (Dkt. 38 at 1) Allstate argues that
during the Civil Remedy Notice Cure Period the medical records showed that Mr.
Wojciechowski was at maximum medical improvement (“MMI”) with a zero-percent
permanent impairment and had been released back to full duty. (Id.)
Allstate contends that while there was a discussion of the possibility of
surgery, no surgery had occurred or was scheduled and Mr. Wojciechowski had not
treated in over five months at the time he served his Civil Remedy Notice on
January 6, 2012.3 (Id.) Allstate also asserts
that it did not violate any of the statutory provisions in Fla. Stat. §
626.9541 cited by Mr. Wojciechowski and therefore did not engage in unfair
settlement practices. (Id. at 13, 25) Mr. Wojciechowski disputes the
foregoing contentions and argues that there are material issues of disputed
facts that preclude summary judgment. (Dkt. 55)
brought this action against Defendant, Allstate, seeking damages under the
Florida Civil Remedy Statute, Fla. Stat. § 624.155, and the Unfair Insurance
Trade Practices Act, Fla. Stat. § 626.9541.1 (Dkt. 1) Specifically, Mr.
Wojciechowski contends that Allstate acted in bad faith in declining to settle
his uninsured motorist (“UIM” or “UM”) claim and engaged in unfair claim
settlement practices in the handling of the claim. (Id.) Allstate seeks
summary judgment in its favor as to both claims, arguing that evaluating
Allstate’s conduct during the Civil Remedy Notice Cure Period, between January
6, 2012 and March 7, 2012, no reasonable jury could conclude that Allstate
acted in bad faith because Mr. Wojciechowski’s claims did not warrant a value
of $230,000.2 (Dkt. 38 at 1) Allstate argues that
during the Civil Remedy Notice Cure Period the medical records showed that Mr.
Wojciechowski was at maximum medical improvement (“MMI”) with a zero-percent
permanent impairment and had been released back to full duty. (Id.)
Allstate contends that while there was a discussion of the possibility of
surgery, no surgery had occurred or was scheduled and Mr. Wojciechowski had not
treated in over five months at the time he served his Civil Remedy Notice on
January 6, 2012.3 (Id.) Allstate also asserts
that it did not violate any of the statutory provisions in Fla. Stat. §
626.9541 cited by Mr. Wojciechowski and therefore did not engage in unfair
settlement practices. (Id. at 13, 25) Mr. Wojciechowski disputes the
foregoing contentions and argues that there are material issues of disputed
facts that preclude summary judgment. (Dkt. 55)
b. Questions before the Court
The Court must determine whether
Allstate acted in bad faith in the handling of Mr. Wojciechowski’s UIM claim.
To make this determination, the Court must address the following questions: 1)
whether the medical information Allstate possessed during the Civil Remedy
Notice Cure Period reasonably demonstrated that Mr. Wojciechowski’s injuries warranted
consideration of non-economic damages, based on a permanent injury or
forthcoming surgery, that were sufficient to trigger his UIM policy limits; 2)
whether the medical information Allstate possessed during the Civil Remedy
Notice Cure Period reasonably showed that Mr. Wojciechowski’s economic damages
were sufficient to trigger his UIM policy limits; and 3) whether certain
aspects of Allstate’s claim handling process are evidence that it acted in bad
faith. The Court answers each of the foregoing questions in the negative.
Allstate acted in bad faith in the handling of Mr. Wojciechowski’s UIM claim.
To make this determination, the Court must address the following questions: 1)
whether the medical information Allstate possessed during the Civil Remedy
Notice Cure Period reasonably demonstrated that Mr. Wojciechowski’s injuries warranted
consideration of non-economic damages, based on a permanent injury or
forthcoming surgery, that were sufficient to trigger his UIM policy limits; 2)
whether the medical information Allstate possessed during the Civil Remedy
Notice Cure Period reasonably showed that Mr. Wojciechowski’s economic damages
were sufficient to trigger his UIM policy limits; and 3) whether certain
aspects of Allstate’s claim handling process are evidence that it acted in bad
faith. The Court answers each of the foregoing questions in the negative.
The Court must also determine
whether Allstate engaged in unfair claim settlement practices in the handling
of Mr. Wojciechowski’s claim. The Court answers this question in the negative.
The relevant, undisputed facts are as follows.
whether Allstate engaged in unfair claim settlement practices in the handling
of Mr. Wojciechowski’s claim. The Court answers this question in the negative.
The relevant, undisputed facts are as follows.
c. Undisputed Facts
1. Facts from June 23, 2010 through November 18, 2011
On June 23, 2010, Robert
Wojciechowski, a Pinellas County Sheriff, was on duty, driving in Clearwater,
Florida, when he was involved in a motor vehicle accident caused by Gabrielle
Granata. (Dkt. 54 at ¶ 1) (the “Accident”) Mr. Wojciechowski claims he sustained
injuries from the Accident. (Id. at ¶ 1)
Wojciechowski, a Pinellas County Sheriff, was on duty, driving in Clearwater,
Florida, when he was involved in a motor vehicle accident caused by Gabrielle
Granata. (Dkt. 54 at ¶ 1) (the “Accident”) Mr. Wojciechowski claims he sustained
injuries from the Accident. (Id. at ¶ 1)
At the time of the Accident, Ms.
Granata had bodily injury liability coverage for $100,000 per person through
Kemper Insurance (“Kemper”), and Mr. Wojciechowski had personal injury
protection (“PIP”) benefits for $10,000 and UIM benefits for $100,000 through
Allstate, auto policy number 96153806507/12 (“the Policy”). (Id. at ¶¶
2-3) Under the terms of the Policy, Allstate contracted to “pay those damages
which an insured is legally entitled to recover from the owner or operator of
an uninsured auto because of bodily injury sustained by an insured person,
except that [Allstate] will not pay for damages consisting of pain, suffering,
mental anguish, or inconvenience unless the injury or disease is described in one
or more of paragraphs (a) through (d) of Florida Statute 627.737(2) . . . . The
bodily injury must be caused by the accident . . . . Bodily injury means
physical harm to the body . . . .” (Id. at ¶ 3)
Granata had bodily injury liability coverage for $100,000 per person through
Kemper Insurance (“Kemper”), and Mr. Wojciechowski had personal injury
protection (“PIP”) benefits for $10,000 and UIM benefits for $100,000 through
Allstate, auto policy number 96153806507/12 (“the Policy”). (Id. at ¶¶
2-3) Under the terms of the Policy, Allstate contracted to “pay those damages
which an insured is legally entitled to recover from the owner or operator of
an uninsured auto because of bodily injury sustained by an insured person,
except that [Allstate] will not pay for damages consisting of pain, suffering,
mental anguish, or inconvenience unless the injury or disease is described in one
or more of paragraphs (a) through (d) of Florida Statute 627.737(2) . . . . The
bodily injury must be caused by the accident . . . . Bodily injury means
physical harm to the body . . . .” (Id. at ¶ 3)
Mr. Wojciechowski’s medical bills
incurred as a result of the Accident were paid by Pinellas County under the
worker’s compensation benefits available through his job. (Id. at ¶ 4)
The Pinellas County Risk Management worker’s compensation file notes reflect
that on October 1, 2010, Mr. Wojciechowski called complaining of neck pain. (Id.
at ¶ 5) The file also discloses that Mr. Wojciechowski wanted to return to see
Dr. Pigeon, he had made his own appointment, and he was still attending
physical therapy for his neck. (Id.)
incurred as a result of the Accident were paid by Pinellas County under the
worker’s compensation benefits available through his job. (Id. at ¶ 4)
The Pinellas County Risk Management worker’s compensation file notes reflect
that on October 1, 2010, Mr. Wojciechowski called complaining of neck pain. (Id.
at ¶ 5) The file also discloses that Mr. Wojciechowski wanted to return to see
Dr. Pigeon, he had made his own appointment, and he was still attending
physical therapy for his neck. (Id.)
In a letter dated October 6, 2010,
Mr. Castagliola advised Allstate that he represented Mr. Wojciechowski and
apprised Allstate of the nature of Mr. Wojciechowski’s claim. (Dkt. 38 at 2;
Dkt. 1 at ¶ 17) In that letter, Mr. Castagliola requested that Allstate direct
all inquiries concerning Mr. Wojciechowski through Mr. Castagliola’s office.
(Dkt. 54 at ¶ 6) Mr. Castagliola also requested that Allstate provide him with
Mr. Wojciechowski’s insurance coverage information and forward him a PIP
application for Mr. Wojciechowski to sign. (Id. at ¶ 6; Dkt. 38-3)
Allstate received this notice of the loss on October 13, 2010. (Dkt. 54 at ¶ 7)
On October 15, 2010, Mr. Castagliola advised Allstate that Mr. Wojciechowski
had sustained a rotator cuff tear, he had not worked for three months, and it
was unknown whether he would require surgery. (Dkt. 54-1 at 54-55)
Mr. Castagliola advised Allstate that he represented Mr. Wojciechowski and
apprised Allstate of the nature of Mr. Wojciechowski’s claim. (Dkt. 38 at 2;
Dkt. 1 at ¶ 17) In that letter, Mr. Castagliola requested that Allstate direct
all inquiries concerning Mr. Wojciechowski through Mr. Castagliola’s office.
(Dkt. 54 at ¶ 6) Mr. Castagliola also requested that Allstate provide him with
Mr. Wojciechowski’s insurance coverage information and forward him a PIP
application for Mr. Wojciechowski to sign. (Id. at ¶ 6; Dkt. 38-3)
Allstate received this notice of the loss on October 13, 2010. (Dkt. 54 at ¶ 7)
On October 15, 2010, Mr. Castagliola advised Allstate that Mr. Wojciechowski
had sustained a rotator cuff tear, he had not worked for three months, and it
was unknown whether he would require surgery. (Dkt. 54-1 at 54-55)
Plaintiff’s claim was assigned to
Allstate’s UIM specialist adjuster, Michelle Desenti, and was described as a
major injury. (Dkt. 54 at ¶ 9) On October 17, 2010, Ms. Desenti sent to Mr.
Wojciechowski’s home address a claim acknowledgment letter advising him to call
her with any questions, concerns, or additional information pertinent to his
claim. (Id. at ¶ 9) On October 25, 2010, Allstate provided Mr.
Castagliola with information regarding Mr. Wojciechowski’s policy. (Dkt. 38-5)
On October 28, 2010, Allstate sent a PIP application to Mr. Wojciechowski at
his home address. (Dkt. 54 at ¶ 11) Shortly thereafter, on November 4, 2010,
Allstate provided Mr. Castagliola with a certified copy of Mr. Wojciechowski’s
policy. (Dkt. 38-6)
Allstate’s UIM specialist adjuster, Michelle Desenti, and was described as a
major injury. (Dkt. 54 at ¶ 9) On October 17, 2010, Ms. Desenti sent to Mr.
Wojciechowski’s home address a claim acknowledgment letter advising him to call
her with any questions, concerns, or additional information pertinent to his
claim. (Id. at ¶ 9) On October 25, 2010, Allstate provided Mr.
Castagliola with information regarding Mr. Wojciechowski’s policy. (Dkt. 38-5)
On October 28, 2010, Allstate sent a PIP application to Mr. Wojciechowski at
his home address. (Dkt. 54 at ¶ 11) Shortly thereafter, on November 4, 2010,
Allstate provided Mr. Castagliola with a certified copy of Mr. Wojciechowski’s
policy. (Dkt. 38-6)
On November 5, 2010, Mr. Castagliola
responded to Kemper’s request for medical documents and informed Kemper that it
was his practice to wait for his client to reach MMI before providing a demand
package, including all relevant medical data. (Dkt. 54 at ¶ 12) In the same
response, Mr. Castagliola also informed Kemper that Mr. Wojciechowski had
suffered a serious shoulder injury, may require surgery, was out of work for
three months, and had returned to light duty. (Dkt. 38-7)
responded to Kemper’s request for medical documents and informed Kemper that it
was his practice to wait for his client to reach MMI before providing a demand
package, including all relevant medical data. (Dkt. 54 at ¶ 12) In the same
response, Mr. Castagliola also informed Kemper that Mr. Wojciechowski had
suffered a serious shoulder injury, may require surgery, was out of work for
three months, and had returned to light duty. (Dkt. 38-7)
On November 11, 2010, Ms. Desenti
noted that it appeared the tortfeasor’s limits under the Kemper policy of
$100,000 would be sufficient to cover Mr. Wojciechowski’s injury. (Dkt. 38-2 at
44) Ms. Desenti also noted that she would continue to monitor the claim until
Mr. Castagliola confirmed a UIM claim would not be presented. (Id.) She
also indicated that she would follow up for medical authorization to order
bills, records, and the worker’s compensation file as well as follow up with
Mr. Castagliola regarding the status of Mr. Wojciechowski’s injury and the
possibility of surgery. (Dkt. 54 ¶ 14; Dkt. 35-1 at 44)
noted that it appeared the tortfeasor’s limits under the Kemper policy of
$100,000 would be sufficient to cover Mr. Wojciechowski’s injury. (Dkt. 38-2 at
44) Ms. Desenti also noted that she would continue to monitor the claim until
Mr. Castagliola confirmed a UIM claim would not be presented. (Id.) She
also indicated that she would follow up for medical authorization to order
bills, records, and the worker’s compensation file as well as follow up with
Mr. Castagliola regarding the status of Mr. Wojciechowski’s injury and the
possibility of surgery. (Dkt. 54 ¶ 14; Dkt. 35-1 at 44)
On November 11, 2010, Ms. Desenti
made a written request for Mr. Castagliola to provide a signed medical and wage
authorization and provide information concerning the following: physicians and
medical care facilities in possession of relevant information about Mr.
Wojciechowski; the name of Mr. Wojciechowski’s employer and a letter from the
employer confirming the amount of lost wages; medical bills and a report
associated with treatment or services rendered for Mr. Wojciechowski’s alleged
injury; and any worker’s compensation carrier claims. (Dkt. 54 at ¶ 15) That
same day, Ms. Desenti called Mr. Castagliola’s office and informed his
assistant that she sent over the medical authorization to be completed. (Id.
at ¶ 16) On December 3, 2010, Mr. Castagliola spoke with Joy Roe4 from Allstate and advised her that he
was not sure if Mr. Wojciechowski “had or is having arthro[scopic] surgery for
rotator cuff tear at this time.” (Id. at ¶ 19)
made a written request for Mr. Castagliola to provide a signed medical and wage
authorization and provide information concerning the following: physicians and
medical care facilities in possession of relevant information about Mr.
Wojciechowski; the name of Mr. Wojciechowski’s employer and a letter from the
employer confirming the amount of lost wages; medical bills and a report
associated with treatment or services rendered for Mr. Wojciechowski’s alleged
injury; and any worker’s compensation carrier claims. (Dkt. 54 at ¶ 15) That
same day, Ms. Desenti called Mr. Castagliola’s office and informed his
assistant that she sent over the medical authorization to be completed. (Id.
at ¶ 16) On December 3, 2010, Mr. Castagliola spoke with Joy Roe4 from Allstate and advised her that he
was not sure if Mr. Wojciechowski “had or is having arthro[scopic] surgery for
rotator cuff tear at this time.” (Id. at ¶ 19)
The Pinellas County Risk Management
worker’s compensation file indicates that on January 2, 2011, Mr. Wojciechowski
injured his lower back making an arrest and went to the emergency room. (Id.
at ¶ 17) The worker’s compensation carrier stated that this incident would be
handled as a new worker’s compensation claim. (Id. at ¶ 17) In January
2011, Kemper’s file notes indicate that the Pinellas County Risk Management
adjuster told Kemper it would be another 30-45 days before Mr. Wojciechowski
reached MMI as he was still being treated and attending physical therapy for
his right shoulder. (Id. at ¶ 18)
worker’s compensation file indicates that on January 2, 2011, Mr. Wojciechowski
injured his lower back making an arrest and went to the emergency room. (Id.
at ¶ 17) The worker’s compensation carrier stated that this incident would be
handled as a new worker’s compensation claim. (Id. at ¶ 17) In January
2011, Kemper’s file notes indicate that the Pinellas County Risk Management
adjuster told Kemper it would be another 30-45 days before Mr. Wojciechowski
reached MMI as he was still being treated and attending physical therapy for
his right shoulder. (Id. at ¶ 18)
On January 10, 2011, Allstate spoke
with Mr. Castagliola regarding the release of Mr. Wojciechowski’s records. (Id.
at ¶ 20) Mr. Castagliola informed Allstate that he did not release records
until the client reached MMI and he asked for the portion of the Policy that
stated a release of records was part of the Policy. (Id. at ¶ 20)
Allstate sent requests to Mr. Castagliola for signed authorizations on December
3, 2010; December 16, 2010; and January 11, 2011; and cited to the relevant
policy provision. (Id. at ¶ 21) On February 1, 2011, Ms. Roe called Mr.
Castagliola’s office and spoke with Lindsay Castellano, Mr. Castagliola’s
secretary. (Id. at ¶ 22; Dkt 41 at 9:2-5) Ms. Castellano advised that
Mr. Wojciechowski was still being treated, they did not have provider
information, and they were not aware of any surgeries having been performed or
scheduled. (Id.)
with Mr. Castagliola regarding the release of Mr. Wojciechowski’s records. (Id.
at ¶ 20) Mr. Castagliola informed Allstate that he did not release records
until the client reached MMI and he asked for the portion of the Policy that
stated a release of records was part of the Policy. (Id. at ¶ 20)
Allstate sent requests to Mr. Castagliola for signed authorizations on December
3, 2010; December 16, 2010; and January 11, 2011; and cited to the relevant
policy provision. (Id. at ¶ 21) On February 1, 2011, Ms. Roe called Mr.
Castagliola’s office and spoke with Lindsay Castellano, Mr. Castagliola’s
secretary. (Id. at ¶ 22; Dkt 41 at 9:2-5) Ms. Castellano advised that
Mr. Wojciechowski was still being treated, they did not have provider
information, and they were not aware of any surgeries having been performed or
scheduled. (Id.)
On February 11, 2011, Allstate again
requested the signed authorizations and reserved its right to assert a defense
of no coverage under the policy due to the failure to provide the
authorizations. (Dkt. 54 at ¶ 18) On March 14, 2011, Ms. Desenti spoke with Mr.
Castagliola’s assistant, who said she was unsure if Mr. Wojciechowski had
surgery but that he was still being treated. (Id. at ¶ 25) Ms. Desenti
told the assistant the reservation of rights would be rescinded upon receipt of
signed authorizations. (Id.) That same day, Ms. Desenti wrote Mr.
Castagliola’s office asking for a signed medical authorization and stating
“[w]e continue to monitor Mr. Wojciechowski’s claim. We are currently
investigating under a reservation of rights due to failure to provide a medical
authorization and provider information”. (Id. at ¶ 26)
requested the signed authorizations and reserved its right to assert a defense
of no coverage under the policy due to the failure to provide the
authorizations. (Dkt. 54 at ¶ 18) On March 14, 2011, Ms. Desenti spoke with Mr.
Castagliola’s assistant, who said she was unsure if Mr. Wojciechowski had
surgery but that he was still being treated. (Id. at ¶ 25) Ms. Desenti
told the assistant the reservation of rights would be rescinded upon receipt of
signed authorizations. (Id.) That same day, Ms. Desenti wrote Mr.
Castagliola’s office asking for a signed medical authorization and stating
“[w]e continue to monitor Mr. Wojciechowski’s claim. We are currently
investigating under a reservation of rights due to failure to provide a medical
authorization and provider information”. (Id. at ¶ 26)
Ms. Desenti’s March 15, 2011 file
notes state that Ms. Desenti and Kemper’s adjuster reviewed information
received from the worker’s compensation carrier. (Id. at ¶ 27) This
information showed that as of January 2011, Plaintiff’s medical expenses were
only $4,800, he had no lost wages, and he had not had surgery. (Id. at ¶
27) The notes reflect that Kemper’s adjuster agreed that even with shoulder
surgery the claim would not exceed Kemper’s limits. (Id. at ¶¶ 27-28)
After this conversation, Ms. Desenti closed the claim without payment, noting
that Mr. Wojciechowski was still obtaining treatment, but the injury appeared
to be soft-tissue in nature. (Id. at ¶ 30) Allstate’s Tampa Bay Casualty
Office received the completed and signed authorizations on April 5, 2011. (Dkt.
35-9)
notes state that Ms. Desenti and Kemper’s adjuster reviewed information
received from the worker’s compensation carrier. (Id. at ¶ 27) This
information showed that as of January 2011, Plaintiff’s medical expenses were
only $4,800, he had no lost wages, and he had not had surgery. (Id. at ¶
27) The notes reflect that Kemper’s adjuster agreed that even with shoulder
surgery the claim would not exceed Kemper’s limits. (Id. at ¶¶ 27-28)
After this conversation, Ms. Desenti closed the claim without payment, noting
that Mr. Wojciechowski was still obtaining treatment, but the injury appeared
to be soft-tissue in nature. (Id. at ¶ 30) Allstate’s Tampa Bay Casualty
Office received the completed and signed authorizations on April 5, 2011. (Dkt.
35-9)
Between August and October 2011, Mr.
Castagliola wrote to Mr. Wojciechowski’s medical providers and requested his
medical records and billing. (Dkt. 54 at ¶ 33) Kemper notified Allstate on
October 17, 2011 that Mr. Castagliola said he would be sending the Demand
Package soon and that Mr. Wojciechowski had not had shoulder surgery. (Id.
at ¶ 32) On November 18, 2011, Mr. Castagliola sent a dual Demand Package to
both Kemper and Allstate in which he included Mr. Wojciechowski’s medical
records and billing and requested that each insurer tender its policy limits of
$100,000. (Id. at ¶ 33; Dkt. 35-6 at 6) The dual Demand Package stated
that Kemper and Allstate had thirty (30) days to tender their policy limits and
that Mr. Wojciechowski would not accept a settlement offer unless both Kemper
and Allstate simultaneously tendered their respective limits. (Dkt. 35-6 at 6)
Castagliola wrote to Mr. Wojciechowski’s medical providers and requested his
medical records and billing. (Dkt. 54 at ¶ 33) Kemper notified Allstate on
October 17, 2011 that Mr. Castagliola said he would be sending the Demand
Package soon and that Mr. Wojciechowski had not had shoulder surgery. (Id.
at ¶ 32) On November 18, 2011, Mr. Castagliola sent a dual Demand Package to
both Kemper and Allstate in which he included Mr. Wojciechowski’s medical
records and billing and requested that each insurer tender its policy limits of
$100,000. (Id. at ¶ 33; Dkt. 35-6 at 6) The dual Demand Package stated
that Kemper and Allstate had thirty (30) days to tender their policy limits and
that Mr. Wojciechowski would not accept a settlement offer unless both Kemper
and Allstate simultaneously tendered their respective limits. (Dkt. 35-6 at 6)
The demand letter stated that Mr.
Wojciechowski had prior chronic intermittent neck pain and headaches but that
the symptoms were well maintained and that prior to the Accident he was able to
perform his job duties. (Dkt. 35-6 at 3) The demand letter also stated that an
MRI taken after the Accident revealed a new cervical spine injury not present
on the MRI taken prior to the Accident. (Id. at 4) With respect to past
medical treatment related to the Accident, Mr. Castagliola represented that Mr.
Wojciechowski had incurred medical bills in the amount of $20,085.44 and that
Pinellas County Risk Management had instituted a statutory recovery lien in the
amount $14,155.70 in connection with those medical bills.5 (Id. at 6) Regarding future
medical treatment, Mr. Castagliola represented in the demand letter that Mr.
Wojciechowski’s injuries would exceed the combined policy limits of $200,000
available through Kemper and Allstate. (Dkt. 12-3; Dkt. 35-6 at 2, 6) More
specifically, Mr. Castagliola represented that
Wojciechowski had prior chronic intermittent neck pain and headaches but that
the symptoms were well maintained and that prior to the Accident he was able to
perform his job duties. (Dkt. 35-6 at 3) The demand letter also stated that an
MRI taken after the Accident revealed a new cervical spine injury not present
on the MRI taken prior to the Accident. (Id. at 4) With respect to past
medical treatment related to the Accident, Mr. Castagliola represented that Mr.
Wojciechowski had incurred medical bills in the amount of $20,085.44 and that
Pinellas County Risk Management had instituted a statutory recovery lien in the
amount $14,155.70 in connection with those medical bills.5 (Id. at 6) Regarding future
medical treatment, Mr. Castagliola represented in the demand letter that Mr.
Wojciechowski’s injuries would exceed the combined policy limits of $200,000
available through Kemper and Allstate. (Dkt. 12-3; Dkt. 35-6 at 2, 6) More
specifically, Mr. Castagliola represented that
[w]hile surgery has not been scheduled as[sic] this time,
please consider that the immediate future medical treatment prescribed for Deputy
Wojciechowsk[sic] consists of two shoulder surgeries at a cost of $35,000.00
each and a spinal fusion surgery at a conservative costs of $100,000.00 for a
total of $170,000.00 in future surgery costs, excluding post surgery physical
therapy, doctor visits, and testing.
please consider that the immediate future medical treatment prescribed for Deputy
Wojciechowsk[sic] consists of two shoulder surgeries at a cost of $35,000.00
each and a spinal fusion surgery at a conservative costs of $100,000.00 for a
total of $170,000.00 in future surgery costs, excluding post surgery physical
therapy, doctor visits, and testing.
(Id.) Based on this
representation, Mr. Castagliola requested payment of the tortfeasor’s $100,000
policy limits through Kemper as well as the $100,000 UIM benefits through
Allstate. (Id.)
representation, Mr. Castagliola requested payment of the tortfeasor’s $100,000
policy limits through Kemper as well as the $100,000 UIM benefits through
Allstate. (Id.)
2. Summary of Medical Records Contained in Demand Package
The Demand Package included Mr.
Wojciechowski’s medical records, which detailed treatment dating from July 2010
through July 2011. (Dkt. 35-6) A summary of the medical records and findings
are as follows.
Wojciechowski’s medical records, which detailed treatment dating from July 2010
through July 2011. (Dkt. 35-6) A summary of the medical records and findings
are as follows.
Mr. Wojciechowski was being treated
for neck and back pain. (Id. at 31) He had preexisting injuries to his
cervical spine and two prior shoulder surgeries. (Dkt. 38-11; Dkt. 35-6 at 15)
He had a pre-Accident cervical spine MRI taken on March 9, 2010. (Dkt. 35-6 at
33) He had a post-Accident cervical spine MRI taken on June 28, 2010. (Id.)
His post-Accident cervical spine MRI taken on June 28, 2010 detailed “similar
findings” as his MRI dated March 9, 2010. (Id.) Dr. Pigeon noted that
his findings on July 12, 2010 were “consistent with [Mr. Wojciechowski’s] prior
study from [March 9, 2010], which predated his current work related injury”
involving Ms. Granata. (Id.) Dr. Pigeon reported that Mr. Wojciechowski
would be enrolled in physical therapy. (Id.) Dr. Pigeon reported on July
27, 2010 that Mr. Wojciechowski “will be advanced to full work duty” and “is
essentially at MMI with no impairment rating.” (Id. at 30) Dr. Pigeon
reported that “if surgery was required in the future, it may involve a
C-5-C-6 [Anterior Cervical Discectomy Fusion (“ACDF”)], although this is not
indicated in the current or foreseeable future.” (Id.) (emphasis
added)
for neck and back pain. (Id. at 31) He had preexisting injuries to his
cervical spine and two prior shoulder surgeries. (Dkt. 38-11; Dkt. 35-6 at 15)
He had a pre-Accident cervical spine MRI taken on March 9, 2010. (Dkt. 35-6 at
33) He had a post-Accident cervical spine MRI taken on June 28, 2010. (Id.)
His post-Accident cervical spine MRI taken on June 28, 2010 detailed “similar
findings” as his MRI dated March 9, 2010. (Id.) Dr. Pigeon noted that
his findings on July 12, 2010 were “consistent with [Mr. Wojciechowski’s] prior
study from [March 9, 2010], which predated his current work related injury”
involving Ms. Granata. (Id.) Dr. Pigeon reported that Mr. Wojciechowski
would be enrolled in physical therapy. (Id.) Dr. Pigeon reported on July
27, 2010 that Mr. Wojciechowski “will be advanced to full work duty” and “is
essentially at MMI with no impairment rating.” (Id. at 30) Dr. Pigeon
reported that “if surgery was required in the future, it may involve a
C-5-C-6 [Anterior Cervical Discectomy Fusion (“ACDF”)], although this is not
indicated in the current or foreseeable future.” (Id.) (emphasis
added)
Mr. Wojciechowski returned to Dr.
Pigeon on October 4, 2010, complaining that his symptoms had reoccurred and
were severe. (Id. at 28) Dr. Pigeon stated that Mr. Wojciechowski would
be enrolled in physical therapy. (Id. at 29) Dr. Pigeon reported that he
would consider bilateral C5-C6 transforaminal epidural steroid injections if
the symptoms remained and he also discussed operative treatment as a possible
option, if necessary. (Id.) In December 2010, Mr. Wojciechowski
discussed epidural steroid injections with Dr. Tambay. (Id. at 13-14) On
December 10, 2010, Dr. Tambay noted that Mr. Wojciechowski was experiencing
pain consistent with cervical radiculopathy and that this may be a result of
new cervical disc disease. (Id.) Dr. Tambay recommended that Mr.
Wojciechowski undergo further testing to rule out cervical radiculopathy and
recommended that he treat with orthopedic surgeon Dr. Cottrell. (Id.)
Dr. Cottrell took X-rays of Mr. Wojciechowski on January 7, 2011, which showed
normal bilateral shoulders. (Id. at 8) Treatment with Dr. Schwartz on
January 10, 2011 showed mild to moderate carpel tunnel and no electrodiagnostic
evidence for ulnar nerve entrapment syndrome and no evidence of cervical
radiculopathy. (Id. at 16) Dr. Cottrell took an MRI on January 21, 2011,
which showed bilateral shoulder impingement syndrome. (Id. at 10) Dr.
Cottrell suggested physical therapy and advised Mr. Wojciechowski he could be
on full duty. (Id.)
Pigeon on October 4, 2010, complaining that his symptoms had reoccurred and
were severe. (Id. at 28) Dr. Pigeon stated that Mr. Wojciechowski would
be enrolled in physical therapy. (Id. at 29) Dr. Pigeon reported that he
would consider bilateral C5-C6 transforaminal epidural steroid injections if
the symptoms remained and he also discussed operative treatment as a possible
option, if necessary. (Id.) In December 2010, Mr. Wojciechowski
discussed epidural steroid injections with Dr. Tambay. (Id. at 13-14) On
December 10, 2010, Dr. Tambay noted that Mr. Wojciechowski was experiencing
pain consistent with cervical radiculopathy and that this may be a result of
new cervical disc disease. (Id.) Dr. Tambay recommended that Mr.
Wojciechowski undergo further testing to rule out cervical radiculopathy and
recommended that he treat with orthopedic surgeon Dr. Cottrell. (Id.)
Dr. Cottrell took X-rays of Mr. Wojciechowski on January 7, 2011, which showed
normal bilateral shoulders. (Id. at 8) Treatment with Dr. Schwartz on
January 10, 2011 showed mild to moderate carpel tunnel and no electrodiagnostic
evidence for ulnar nerve entrapment syndrome and no evidence of cervical
radiculopathy. (Id. at 16) Dr. Cottrell took an MRI on January 21, 2011,
which showed bilateral shoulder impingement syndrome. (Id. at 10) Dr.
Cottrell suggested physical therapy and advised Mr. Wojciechowski he could be
on full duty. (Id.)
In February 2011, Mr. Wojciechowski
treated with Dr. Tambay and received several cervical injections. (Id.
at 19) An MRI taken on March 14, 2011 did “not show any major changes” compared
to the MRI dated March 9, 2010 taken prior to the Accident, and Dr. Pigeon
noted there is clearly an issue with C5-C6 level. (Id. at 23) Dr. Pigeon
prescribed transforaminal epidural steroid injections. (Id.) Dr. Pigeon
then noted that he “re-discussed operative treatment, which he stated may
involve C5-C6 [Anterior Cervical Discectomy Fusion]”, and noted that Mr.
Wojciechowski was “very reticent for any operative treatment.” (Id.) Dr.
Pigeon released Mr. Wojciechowski to full work duty, as he had been doing for
the past several months and advised him to return in “six weeks for
reassessment and for re-discussion regarding operative treatment as
appropriate. The patient understands and agrees.” (Id.) This was the
last record by Dr. Pigeon. (Id.) On July 26, 2011, Mr. Wojciechowski
received injections by Dr. Tambay, who noted that Mr. Wojciechowski had good
initial pain relief. (Id. at 17) This concluded the record of treatment
submitted to Allstate in the Demand Package.
treated with Dr. Tambay and received several cervical injections. (Id.
at 19) An MRI taken on March 14, 2011 did “not show any major changes” compared
to the MRI dated March 9, 2010 taken prior to the Accident, and Dr. Pigeon
noted there is clearly an issue with C5-C6 level. (Id. at 23) Dr. Pigeon
prescribed transforaminal epidural steroid injections. (Id.) Dr. Pigeon
then noted that he “re-discussed operative treatment, which he stated may
involve C5-C6 [Anterior Cervical Discectomy Fusion]”, and noted that Mr.
Wojciechowski was “very reticent for any operative treatment.” (Id.) Dr.
Pigeon released Mr. Wojciechowski to full work duty, as he had been doing for
the past several months and advised him to return in “six weeks for
reassessment and for re-discussion regarding operative treatment as
appropriate. The patient understands and agrees.” (Id.) This was the
last record by Dr. Pigeon. (Id.) On July 26, 2011, Mr. Wojciechowski
received injections by Dr. Tambay, who noted that Mr. Wojciechowski had good
initial pain relief. (Id. at 17) This concluded the record of treatment
submitted to Allstate in the Demand Package.
3. Facts from November 22, 2011 through June 19, 2013
Allstate received the Demand Package
on November 21, 2011 and, on November 22, 2011, pulled the closed file from the
file room. (Dkt. 54 at ¶ 35) On December 8, 2011, Kemper’s file notes and
Allstate’s file notes reflect a call in which Kemper told Ms. Desenti it was
tendering Kemper’s policy limits. (Dkt. 54 at ¶ 36) On December 12, 2011, at
10:26 a.m., Allstate received a fax from Mr. Castagliola informing it that
Kemper tendered its policy limits of $100,000, and it was Mr. Wojciechowski’s
desire to accept the offer. (Dkt. 54-12 at 2; Dkt. 54 at ¶ 37) Mr. Castagliola
also requested that Allstate waive its subrogation rights against the
tortfeasor. (Id.) On December 16, 2011, evaluation consultant Carolyn
Mitchell reviewed and evaluated all the medical records, re-ran Colossus, and
entered her evaluation notes. (Dkt. 54 at ¶ 39; Dkt. 38-15; Dkt. 39 at 5:18-19)
Thereafter, Ms. Desenti sent a letter to Mr. Castagliola, which stated
on November 21, 2011 and, on November 22, 2011, pulled the closed file from the
file room. (Dkt. 54 at ¶ 35) On December 8, 2011, Kemper’s file notes and
Allstate’s file notes reflect a call in which Kemper told Ms. Desenti it was
tendering Kemper’s policy limits. (Dkt. 54 at ¶ 36) On December 12, 2011, at
10:26 a.m., Allstate received a fax from Mr. Castagliola informing it that
Kemper tendered its policy limits of $100,000, and it was Mr. Wojciechowski’s
desire to accept the offer. (Dkt. 54-12 at 2; Dkt. 54 at ¶ 37) Mr. Castagliola
also requested that Allstate waive its subrogation rights against the
tortfeasor. (Id.) On December 16, 2011, evaluation consultant Carolyn
Mitchell reviewed and evaluated all the medical records, re-ran Colossus, and
entered her evaluation notes. (Dkt. 54 at ¶ 39; Dkt. 38-15; Dkt. 39 at 5:18-19)
Thereafter, Ms. Desenti sent a letter to Mr. Castagliola, which stated
During the course of treatment after the accident, Mr.
Wojciechowski was placed at MMI with 0% PPI rating until he aggravated his
condition when making an arrest. It would appear that all treatment after July
27, 2010 would be unrelated to the accident. We do not have a copy of the
worker’s compensation payout. At this time, our review indicates there is no UM
exposure and the value of [the] claim falls within the tort limits of the
$100,000.00. Should you have additional information you would like to present
we will gladly review and consider.
Wojciechowski was placed at MMI with 0% PPI rating until he aggravated his
condition when making an arrest. It would appear that all treatment after July
27, 2010 would be unrelated to the accident. We do not have a copy of the
worker’s compensation payout. At this time, our review indicates there is no UM
exposure and the value of [the] claim falls within the tort limits of the
$100,000.00. Should you have additional information you would like to present
we will gladly review and consider.
(Id.)
On December 26, 2011, Mr. Wojciechowski
accepted the $100,000 bodily injury benefits from Kemper and executed a Release
of all Claims arising out of the Accident. (Dkt. 12-1) Mr. Castagliola wrote a
letter on January 6, 2012 to Allstate, demanding payment of the $100,000 UIM
policy benefits within 30 days, contending that “even though Officer
Wojciechowski was prematurely placed at MMI on July 27, 2010, one month after
the traffic incident, in October 2010, his symptoms reoccurred and they were
quite severe. In October 2010, his treatment for the injuries generated by the
traffic accident of June 23, 2010 resumed.” (Dkt. 54-13 at 2) Mr. Castagliola
also enclosed his office’s medical summary, which did not summarize any
additional medical records beyond those already provided to Allstate. (Dkt.
38-16; Dkt. 54-13 at 2) He also enclosed a copy of the workers compensation
payout. (Id.) Mr. Castagliola then filed a Civil Remedy Notice
(alternatively referred to at times as “CRN”) on January 6, 2012 against
Allstate concerning his claim for the UIM benefits. (Dkt. 54 at ¶ 42)
accepted the $100,000 bodily injury benefits from Kemper and executed a Release
of all Claims arising out of the Accident. (Dkt. 12-1) Mr. Castagliola wrote a
letter on January 6, 2012 to Allstate, demanding payment of the $100,000 UIM
policy benefits within 30 days, contending that “even though Officer
Wojciechowski was prematurely placed at MMI on July 27, 2010, one month after
the traffic incident, in October 2010, his symptoms reoccurred and they were
quite severe. In October 2010, his treatment for the injuries generated by the
traffic accident of June 23, 2010 resumed.” (Dkt. 54-13 at 2) Mr. Castagliola
also enclosed his office’s medical summary, which did not summarize any
additional medical records beyond those already provided to Allstate. (Dkt.
38-16; Dkt. 54-13 at 2) He also enclosed a copy of the workers compensation
payout. (Id.) Mr. Castagliola then filed a Civil Remedy Notice
(alternatively referred to at times as “CRN”) on January 6, 2012 against
Allstate concerning his claim for the UIM benefits. (Dkt. 54 at ¶ 42)
On February 1, 2012, Mr. Castagliola
sent a letter to Allstate stating that he had negotiated with Pinellas County
and it had agreed to reduce its statutory lien of $14,155.70 for medical
expenses paid on Mr. Wojciechowski’s behalf to $10,000.00 as a full, complete,
and final settlement of the worker’s compensation lien. (Dkt. 38-18) In that
letter, Mr. Castagliola stated that although he had previously advised that Mr.
Wojciechowski intended to reserve the rights to his PIP benefits for a later
time, Mr. Wojciechowski was now demanding that Allstate tender the $10,000.00
in PIP benefits so that he could satisfy the worker’s compensation lien. (Id.)
sent a letter to Allstate stating that he had negotiated with Pinellas County
and it had agreed to reduce its statutory lien of $14,155.70 for medical
expenses paid on Mr. Wojciechowski’s behalf to $10,000.00 as a full, complete,
and final settlement of the worker’s compensation lien. (Dkt. 38-18) In that
letter, Mr. Castagliola stated that although he had previously advised that Mr.
Wojciechowski intended to reserve the rights to his PIP benefits for a later
time, Mr. Wojciechowski was now demanding that Allstate tender the $10,000.00
in PIP benefits so that he could satisfy the worker’s compensation lien. (Id.)
On February 2, 2012, Allstate
adjustor John Allen wrote to Mr. Castagliola’s office to advise him that Mr.
Allen was reassigned to the claim. (Dkt. 54 at ¶ 43) Mr. Allen advised that
after re-evaluating the medical records and bills submitted by Mr. Castagliola
in the January 6, 2010 demand letter he also concluded that there was no UIM
exposure to Allstate. (Id.) On February 27, 2012, Mr. Allen spoke to Mr.
Castagliola’s paralegal regarding whether Mr. Wojciechowski had, or was
scheduled for, surgery. (Id. at ¶ 44) Mr. Castagliola’s paralegal
informed Mr. Allen that Mr. Wojciechowski still had the recommendation but no
surgery had occurred nor had a date for surgery been set. (Id.) Also, on
February 27, 2012, Allstate responded to the Civil Remedy Notice and again
advised that its evaluation showed that the injury claim was within the
tortfeasor’s policy limits of $100,000 based on the medical records and bills
submitted. (Dkt. 1-4 at 1) Allstate did however tender the $10,000.00 in PIP
benefits to Mr. Wojciechowski as complete, full, and final settlement of the
worker’s compensation lien. (Dkt. 38-2 at 27; Dkt. 55 at 20-21) Mr.
Wojciechowski accepted this tender without reservation, thus eliminating any
out-of-pocket loss on the then outstanding medical expenses and the associated
lien. (Dkt. 38-18; Dkt. 38-2 at 27; Dkt. 55 at 20-21)
adjustor John Allen wrote to Mr. Castagliola’s office to advise him that Mr.
Allen was reassigned to the claim. (Dkt. 54 at ¶ 43) Mr. Allen advised that
after re-evaluating the medical records and bills submitted by Mr. Castagliola
in the January 6, 2010 demand letter he also concluded that there was no UIM
exposure to Allstate. (Id.) On February 27, 2012, Mr. Allen spoke to Mr.
Castagliola’s paralegal regarding whether Mr. Wojciechowski had, or was
scheduled for, surgery. (Id. at ¶ 44) Mr. Castagliola’s paralegal
informed Mr. Allen that Mr. Wojciechowski still had the recommendation but no
surgery had occurred nor had a date for surgery been set. (Id.) Also, on
February 27, 2012, Allstate responded to the Civil Remedy Notice and again
advised that its evaluation showed that the injury claim was within the
tortfeasor’s policy limits of $100,000 based on the medical records and bills
submitted. (Dkt. 1-4 at 1) Allstate did however tender the $10,000.00 in PIP
benefits to Mr. Wojciechowski as complete, full, and final settlement of the
worker’s compensation lien. (Dkt. 38-2 at 27; Dkt. 55 at 20-21) Mr.
Wojciechowski accepted this tender without reservation, thus eliminating any
out-of-pocket loss on the then outstanding medical expenses and the associated
lien. (Dkt. 38-18; Dkt. 38-2 at 27; Dkt. 55 at 20-21)
On November 21, 2012, Allstate
reassigned the claim to Mr. Prevot. (Dkt. 54 at ¶ 46) His file notes for that
day state that he called Mr. Castagliola’s office and a legal assistant told
him that to the best of her knowledge Mr. Wojciechowski had not had surgery and
she did not believe there was any recent treatment information. (Id.)
Mr. Prevot asked the legal assistant to forward records if the treatment status
changed significantly and he closed the file. (Id.)
reassigned the claim to Mr. Prevot. (Dkt. 54 at ¶ 46) His file notes for that
day state that he called Mr. Castagliola’s office and a legal assistant told
him that to the best of her knowledge Mr. Wojciechowski had not had surgery and
she did not believe there was any recent treatment information. (Id.)
Mr. Prevot asked the legal assistant to forward records if the treatment status
changed significantly and he closed the file. (Id.)
On June 10, 2013, Allstate received
a letter from Mr. Castagliola which contained updated medical information,
including a cervical surgery report from Dr. Pigeon showing that Mr.
Wojciechowski underwent surgery on March 29, 2013. (Id. at ¶ 47; Dkt.
38-20) This letter was sent more than six and half months after Allstate’s last
contact with Mr. Wojciechowski or his counsel and more than fifteen (15) months
after the Civil Remedy Notice Cure Period ended. On June 18, 2013, Allstate
pulled the closed file and recommended tendering the UIM policy limits. (Id.
at ¶ 48) Allstate sent a check in the amount of $100,000 and the proposed
release to Mr. Castagliola on June 19, 2013. (Id.) Mr. and Mrs.
Wojciechowski signed a UIM Release of Allstate on July 19, 2013 in
consideration of the $100,000 UIM benefits. (Dkt. 12-5) The UIM Release
provided that Allstate is released and discharged from any and all liability
from contractual obligations for UIM coverage. (Id.) However, the
Wojciechowskis inserted a clause in the Release that provided “nothing herein
will be construed to release claims under Fla. Stat. 624.155 or 627.727(10).” (Id.)
a letter from Mr. Castagliola which contained updated medical information,
including a cervical surgery report from Dr. Pigeon showing that Mr.
Wojciechowski underwent surgery on March 29, 2013. (Id. at ¶ 47; Dkt.
38-20) This letter was sent more than six and half months after Allstate’s last
contact with Mr. Wojciechowski or his counsel and more than fifteen (15) months
after the Civil Remedy Notice Cure Period ended. On June 18, 2013, Allstate
pulled the closed file and recommended tendering the UIM policy limits. (Id.
at ¶ 48) Allstate sent a check in the amount of $100,000 and the proposed
release to Mr. Castagliola on June 19, 2013. (Id.) Mr. and Mrs.
Wojciechowski signed a UIM Release of Allstate on July 19, 2013 in
consideration of the $100,000 UIM benefits. (Dkt. 12-5) The UIM Release
provided that Allstate is released and discharged from any and all liability
from contractual obligations for UIM coverage. (Id.) However, the
Wojciechowskis inserted a clause in the Release that provided “nothing herein
will be construed to release claims under Fla. Stat. 624.155 or 627.727(10).” (Id.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when
the movant can show that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap,
559 F.3d 1212, 1216 (11th Cir. 2009) [21 Fla. L. Weekly Fed. C1571a] (citing Welding
Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C246a]). Which facts are material depends on the substantive law
applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The moving party bears the burden of showing that no genuine issue
of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 (11th Cir. 1991).
the movant can show that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. Fennell v. Gilstrap,
559 F.3d 1212, 1216 (11th Cir. 2009) [21 Fla. L. Weekly Fed. C1571a] (citing Welding
Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007) [21 Fla. L.
Weekly Fed. C246a]). Which facts are material depends on the substantive law
applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The moving party bears the burden of showing that no genuine issue
of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 (11th Cir. 1991).
Evidence is reviewed in the light
most favorable to the non-moving party. Fennell, 559 F.3d at 1216
(citing Welding Servs., Inc., 509 F.3d at 1356). A moving party
discharges its burden on a motion for summary judgment by showing or pointing
out to the Court that there is an absence of evidence to support the non-moving
party’s case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.
2001) [14 Fla. L. Weekly Fed. C595a] (citation omitted).
most favorable to the non-moving party. Fennell, 559 F.3d at 1216
(citing Welding Servs., Inc., 509 F.3d at 1356). A moving party
discharges its burden on a motion for summary judgment by showing or pointing
out to the Court that there is an absence of evidence to support the non-moving
party’s case. Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.
2001) [14 Fla. L. Weekly Fed. C595a] (citation omitted).
When a moving party has discharged
its burden, the non-moving party must then designate specific facts (by its own
affidavits, depositions, answers to interrogatories, or admissions on file)
that demonstrate there is a genuine issue for trial. Porter v. Ray, 461
F.3d 1315, 1320-1321 (11th Cir. 2006) [22 Fla. L. Weekly Fed. C1918a] (citation
omitted). The party opposing a motion for summary judgment must rely on more
than conclusory statements or allegations unsupported by facts. Evers v.
Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory
allegations without specific supporting facts have no probative value.”). “If a
party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact . . . the court may grant summary
judgment if the motion and supporting materials . . . show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e).
its burden, the non-moving party must then designate specific facts (by its own
affidavits, depositions, answers to interrogatories, or admissions on file)
that demonstrate there is a genuine issue for trial. Porter v. Ray, 461
F.3d 1315, 1320-1321 (11th Cir. 2006) [22 Fla. L. Weekly Fed. C1918a] (citation
omitted). The party opposing a motion for summary judgment must rely on more
than conclusory statements or allegations unsupported by facts. Evers v.
Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory
allegations without specific supporting facts have no probative value.”). “If a
party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact . . . the court may grant summary
judgment if the motion and supporting materials . . . show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e).
III. DISCUSSION
A. Insurance Bad Faith Claim
In Florida, a first-party bad faith
claim arises when an insured sues its own insurance company for an improper
denial of benefits. Cousin v. GEICO General Insurance Company, 166 F.
Supp. 3d 1290, 1297 (M.D. Fla. 2015) (citing QBE Ins. Corp. v. Chalfonte
Condominium Apartment Ass’n, Inc., 94 So. 3d 541, 546 n. 1 (Fla. 2012) [37
Fla. L. Weekly S395a]) (internal citation omitted). A first-party bad faith
action is a separate and distinct cause of action from the underlying claim for
UIM benefits and allows the insured to recover damages in excess of the policy
limits. Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 164-65 (Fla. 5th DCA
2010). An insurance company becomes liable for damages beyond the policy limits
when it fails to attempt “in good faith to settle claims when, under all the
circumstances, it could and should have done so, had it acted fairly and
honestly toward its insured and with due regard for her or his interests.” Fla.
Stat. § 624.155.
claim arises when an insured sues its own insurance company for an improper
denial of benefits. Cousin v. GEICO General Insurance Company, 166 F.
Supp. 3d 1290, 1297 (M.D. Fla. 2015) (citing QBE Ins. Corp. v. Chalfonte
Condominium Apartment Ass’n, Inc., 94 So. 3d 541, 546 n. 1 (Fla. 2012) [37
Fla. L. Weekly S395a]) (internal citation omitted). A first-party bad faith
action is a separate and distinct cause of action from the underlying claim for
UIM benefits and allows the insured to recover damages in excess of the policy
limits. Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 164-65 (Fla. 5th DCA
2010). An insurance company becomes liable for damages beyond the policy limits
when it fails to attempt “in good faith to settle claims when, under all the
circumstances, it could and should have done so, had it acted fairly and
honestly toward its insured and with due regard for her or his interests.” Fla.
Stat. § 624.155.
The determination as to whether an
insured has acted in good faith is based on the totality of the circumstances,
which, inter alia, considers whether the insurer investigated the facts
surrounding the event, gave fair consideration to reasonable settlement offers
under the circumstances, and settled where possible if a reasonably prudent
person would have settled. Macola v. GEICO, 953 So. 2d 451, 455 (Fla.
2006) [31 Fla. L. Weekly S690a] (quoting Boston Old Colony Ins. v.
Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). “[T]o fulfill the duty of good
faith, an insurer does not have to act perfectly, prudently, or even
reasonably. Rather, insurers must ‘refrain from acting solely on the basis of
their own interests in settlement.’ ” Messinese v. USAA Cas. Ins. Co.,
622 Fed. App’x 835, 839 (11th Cir. 2015)6 (quoting State Farm Mut. Auto.
Ins. Co. v. Laforet, 658 So. 2d 55, 58 (Fla. 1995) [20 Fla. L. Weekly
S173a]). “Mindful of the insurer’s duty of good faith, the justification for
bad faith jurisprudence is as a shield for insureds — not as a sword for
claimants.” Cousin, 166 F. Supp. 3d at 1297 (internal quotations
omitted).
insured has acted in good faith is based on the totality of the circumstances,
which, inter alia, considers whether the insurer investigated the facts
surrounding the event, gave fair consideration to reasonable settlement offers
under the circumstances, and settled where possible if a reasonably prudent
person would have settled. Macola v. GEICO, 953 So. 2d 451, 455 (Fla.
2006) [31 Fla. L. Weekly S690a] (quoting Boston Old Colony Ins. v.
Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). “[T]o fulfill the duty of good
faith, an insurer does not have to act perfectly, prudently, or even
reasonably. Rather, insurers must ‘refrain from acting solely on the basis of
their own interests in settlement.’ ” Messinese v. USAA Cas. Ins. Co.,
622 Fed. App’x 835, 839 (11th Cir. 2015)6 (quoting State Farm Mut. Auto.
Ins. Co. v. Laforet, 658 So. 2d 55, 58 (Fla. 1995) [20 Fla. L. Weekly
S173a]). “Mindful of the insurer’s duty of good faith, the justification for
bad faith jurisprudence is as a shield for insureds — not as a sword for
claimants.” Cousin, 166 F. Supp. 3d at 1297 (internal quotations
omitted).
First-Party Bad Faith Civil Remedy Notice and Cure Period
“In 1982, the Florida Legislature
created a statutory first-party bad faith cause of action through the enactment
of section 624.155.” Fridman v. Safeco Ins. Co. of Illinois, 185 So. 3d
1214, 1220 (Fla. 2016) [41 Fla. L. Weekly S62a] (citing Fla. Stat. §
624.155(1)(b)). “As a condition precedent to filing a civil action under
section 624.155, ‘the Florida Department of Financial Services and the
authorized insurer must have been given 60 days’ written notice of the
violation.’ ” Id. (quoting § 624.155(3)(a), Fla. Stat. (2007)) (internal
brackets omitted); see also Fla. Stat. § 624.05(1). “This notice is
commonly referred to as the ‘civil remedy notice.’ ” Id. “The statute
further provides that ‘[n]o action shall lie if, within 60 days after filing
notice, the damages are paid or the circumstances giving rise to the violation
are corrected.’ ” Id. (quoting Fla. Stat. § 624.155(3)(d)). “This sixty-day
window provides insurers with a final opportunity ‘to comply with their
claim-handling obligations when a good-faith decision by the insurer would indicate
that contractual benefits are owed.’ ” Id. (quoting Talat Enters.,
Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1284 (Fla. 2000) [25
Fla. L. Weekly S172a]). See also Lane v. Westfield Ins. Co., 862 So. 2d
774, 779 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2547a] (“The purpose of the
civil remedy notice is to give the insurer one last chance to settle a claim
with its insured and avoid unnecessary bad faith litigation.”).
created a statutory first-party bad faith cause of action through the enactment
of section 624.155.” Fridman v. Safeco Ins. Co. of Illinois, 185 So. 3d
1214, 1220 (Fla. 2016) [41 Fla. L. Weekly S62a] (citing Fla. Stat. §
624.155(1)(b)). “As a condition precedent to filing a civil action under
section 624.155, ‘the Florida Department of Financial Services and the
authorized insurer must have been given 60 days’ written notice of the
violation.’ ” Id. (quoting § 624.155(3)(a), Fla. Stat. (2007)) (internal
brackets omitted); see also Fla. Stat. § 624.05(1). “This notice is
commonly referred to as the ‘civil remedy notice.’ ” Id. “The statute
further provides that ‘[n]o action shall lie if, within 60 days after filing
notice, the damages are paid or the circumstances giving rise to the violation
are corrected.’ ” Id. (quoting Fla. Stat. § 624.155(3)(d)). “This sixty-day
window provides insurers with a final opportunity ‘to comply with their
claim-handling obligations when a good-faith decision by the insurer would indicate
that contractual benefits are owed.’ ” Id. (quoting Talat Enters.,
Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1284 (Fla. 2000) [25
Fla. L. Weekly S172a]). See also Lane v. Westfield Ins. Co., 862 So. 2d
774, 779 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2547a] (“The purpose of the
civil remedy notice is to give the insurer one last chance to settle a claim
with its insured and avoid unnecessary bad faith litigation.”).
Allstate argues that its actions
taken during the Civil Remedy Notice Cure Period, January 6, 2012 to March 7,
2012, were not in bad faith because it timely reviewed the Demand Package
received from Mr. Wojciechowski. Allstate argues that based on the available
medical records it possessed during that pertinent time period, it did not act
in bad faith when it determined Mr. Wojciechowski’s claim was within the
tortfeasor’s limit and declined to tender its $100,000 policy limits in
response to the demand. The Court agrees.
taken during the Civil Remedy Notice Cure Period, January 6, 2012 to March 7,
2012, were not in bad faith because it timely reviewed the Demand Package
received from Mr. Wojciechowski. Allstate argues that based on the available
medical records it possessed during that pertinent time period, it did not act
in bad faith when it determined Mr. Wojciechowski’s claim was within the
tortfeasor’s limit and declined to tender its $100,000 policy limits in
response to the demand. The Court agrees.
In a recent case that is factually
very similar to this case, the Eleventh Circuit held that the “possibility of
surgical intervention” is insufficient to provide notice to an insurer of a
permanent injury; therefore, the insurer did not act in bad faith for refusing
to tender policy limits during the CRN cure period for amounts in excess of
established economic damages. Cadle v. GEICO General Insurance Company,
838 F.3d 1113 (11th Cir. 2016) [26 Fla. L. Weekly Fed. C835a].
very similar to this case, the Eleventh Circuit held that the “possibility of
surgical intervention” is insufficient to provide notice to an insurer of a
permanent injury; therefore, the insurer did not act in bad faith for refusing
to tender policy limits during the CRN cure period for amounts in excess of
established economic damages. Cadle v. GEICO General Insurance Company,
838 F.3d 1113 (11th Cir. 2016) [26 Fla. L. Weekly Fed. C835a].
In Cadle, Ms. Cadle was
injured in a car accident on July 27, 2007. In Ms. Cadle’s demand letter, issued
on June 3, 2008, she requested her UIM policy limits of $75,000 and included
her medical records. Id. at 1116. That same day, GEICO noted that she had not
been designated as having a permanent injury and offered her $1,000 to settle
her claim. Id. On September 17, 2008, Ms. Cadle filed her CRN in which
she advised that “she was still under the care of her treating physician and a
neurosurgeon with whom she had discussed surgical intervention . . . .” Id. at
1117. Prior to the CRN cure period, Ms. Cadle had not received any treatment
for several months. Id. During the CRN cure period, Ms. Cadle did not
produce any medical records establishing permanency, and GEICO did not increase
its offer again, noting there had been no designation of a permanent injury.
Id. On December 15, 2009, over a year after the CRN cure period ended, and
unbeknownst to GEICO, Ms. Cadle underwent surgery. Id. Ultimately, Ms.
Cadle filed suit against GEICO alleging bad faith, and the jury returned a
verdict in her favor. Id. at 1118.
injured in a car accident on July 27, 2007. In Ms. Cadle’s demand letter, issued
on June 3, 2008, she requested her UIM policy limits of $75,000 and included
her medical records. Id. at 1116. That same day, GEICO noted that she had not
been designated as having a permanent injury and offered her $1,000 to settle
her claim. Id. On September 17, 2008, Ms. Cadle filed her CRN in which
she advised that “she was still under the care of her treating physician and a
neurosurgeon with whom she had discussed surgical intervention . . . .” Id. at
1117. Prior to the CRN cure period, Ms. Cadle had not received any treatment
for several months. Id. During the CRN cure period, Ms. Cadle did not
produce any medical records establishing permanency, and GEICO did not increase
its offer again, noting there had been no designation of a permanent injury.
Id. On December 15, 2009, over a year after the CRN cure period ended, and
unbeknownst to GEICO, Ms. Cadle underwent surgery. Id. Ultimately, Ms.
Cadle filed suit against GEICO alleging bad faith, and the jury returned a
verdict in her favor. Id. at 1118.
Notwithstanding the jury verdict,
the district court determined that Ms. Cadle “was only entitled to economic
damages, which indisputably were not $75,000 and therefore Ms. Cadle was not
entitled to, as a matter of law, the UM policy limits.” Id. at 1120
(internal brackets omitted). Regarding the amount of any economic damages to
which she was entitled, the district court found that Ms. Cadle did not have
any out-of-pocket expense because her medical expenses had been covered. Id.
Regarding any alleged failure by the insurer to consider Ms. Cadle’s possible
surgery in evaluating her claim, the district court noted that “[t]here is
nothing in that record that says GEICO was on notice that she had to have
surgery. It’s just not there.” Id. at 1118 (emphasis in original). The
district court entered judgment as a matter of law in GEICO’s favor, concluding
that although Ms. Cadle underwent surgery in December 2009, “no evidence
supported [Ms.] Cadle’s claim GEICO was aware or should have known that she had
a permanent injury prior to January 2010 when [Ms.] Cadle’s attorney informed
GEICO of her December 2009 surgery.” Id. at 1120 (internal quotation
marks and brackets in original omitted).
the district court determined that Ms. Cadle “was only entitled to economic
damages, which indisputably were not $75,000 and therefore Ms. Cadle was not
entitled to, as a matter of law, the UM policy limits.” Id. at 1120
(internal brackets omitted). Regarding the amount of any economic damages to
which she was entitled, the district court found that Ms. Cadle did not have
any out-of-pocket expense because her medical expenses had been covered. Id.
Regarding any alleged failure by the insurer to consider Ms. Cadle’s possible
surgery in evaluating her claim, the district court noted that “[t]here is
nothing in that record that says GEICO was on notice that she had to have
surgery. It’s just not there.” Id. at 1118 (emphasis in original). The
district court entered judgment as a matter of law in GEICO’s favor, concluding
that although Ms. Cadle underwent surgery in December 2009, “no evidence
supported [Ms.] Cadle’s claim GEICO was aware or should have known that she had
a permanent injury prior to January 2010 when [Ms.] Cadle’s attorney informed
GEICO of her December 2009 surgery.” Id. at 1120 (internal quotation
marks and brackets in original omitted).
The Eleventh Circuit affirmed the
district court’s decision, stating that
district court’s decision, stating that
at no time during the cure period did [Ms.] Cadle produce to
GEICO medical evidence of the permanency of her injury. Noneconomic damages are
available under an insurance policy only if the plaintiff incurs a permanent
injury,” which must be established “within a reasonable degree of medical
probability” within the cure period.
GEICO medical evidence of the permanency of her injury. Noneconomic damages are
available under an insurance policy only if the plaintiff incurs a permanent
injury,” which must be established “within a reasonable degree of medical
probability” within the cure period.
Id. at 1126 (quoting Fla. Stat. § 627.737(2)(b)). The Eleventh
Circuit, quoting the district court, reiterated
Circuit, quoting the district court, reiterated
Despite numerous opportunities, [Ms.] Cadle’s attorney never
provided any evidence of a permanent injury and never even attempted to address
the threshold issue [of permanent injury], except to note that his client was
considering surgical intervention. This possibility of surgical intervention is
not, however, notice of permanent injury. Absent evidence of a permanent
injury, there was no basis for GEICO to value [Ms.] Cadle’s UM claim at or
above $75,000. Accordingly, there was no credible evidence presented to the
jury to support a finding of bad faith.
provided any evidence of a permanent injury and never even attempted to address
the threshold issue [of permanent injury], except to note that his client was
considering surgical intervention. This possibility of surgical intervention is
not, however, notice of permanent injury. Absent evidence of a permanent
injury, there was no basis for GEICO to value [Ms.] Cadle’s UM claim at or
above $75,000. Accordingly, there was no credible evidence presented to the
jury to support a finding of bad faith.
Id. at 1127 (emphasis in original) (brackets in original
omitted).
omitted).
Also, in Harris v. GEICO General
Ins. Co., Ms. Harris was injured in an automobile accident in which an
underinsured motorist was at fault. 961 F. Supp. 2d 1223, 1225 (S.D. Fla.
2013), aff’d, 619 Fed. App’x 896, 898-99 (11th Cir. 2015). Ms. Harris was
insured under a GEICO UIM policy in the amount of $100,000 at the time of the
accident. Id. On August 13, 2009, Ms. Harris made a formal demand for
the UIM policy limits and enclosed medical bills totaling $34,111.76. Id. On
August 25, 2009, GEICO offered $17,156.47 to settle the matter. Id. at
1226. On September 1, 2009, Ms. Harris served a CRN pursuant to Fla. Stat. §
624.155, which stated her medical bills exceeded $34,000, she incurred car
property damage of $4,000, and her injuries were permanent. Id. On September
15, 2009, Ms. Harris underwent a percutaneous discectomy.7 Id. On October 1, 2009, GEICO
raised its offer to $25,000, stating that it believed Ms. Harris had undergone
a questionable medical procedure. Id. On October 6, 2009, Ms. Harris requested
medical expenses in the total amount of $75,305. On October 8, 2009, GEICO
offered $30,000 to settle the claim. Id.
Ins. Co., Ms. Harris was injured in an automobile accident in which an
underinsured motorist was at fault. 961 F. Supp. 2d 1223, 1225 (S.D. Fla.
2013), aff’d, 619 Fed. App’x 896, 898-99 (11th Cir. 2015). Ms. Harris was
insured under a GEICO UIM policy in the amount of $100,000 at the time of the
accident. Id. On August 13, 2009, Ms. Harris made a formal demand for
the UIM policy limits and enclosed medical bills totaling $34,111.76. Id. On
August 25, 2009, GEICO offered $17,156.47 to settle the matter. Id. at
1226. On September 1, 2009, Ms. Harris served a CRN pursuant to Fla. Stat. §
624.155, which stated her medical bills exceeded $34,000, she incurred car
property damage of $4,000, and her injuries were permanent. Id. On September
15, 2009, Ms. Harris underwent a percutaneous discectomy.7 Id. On October 1, 2009, GEICO
raised its offer to $25,000, stating that it believed Ms. Harris had undergone
a questionable medical procedure. Id. On October 6, 2009, Ms. Harris requested
medical expenses in the total amount of $75,305. On October 8, 2009, GEICO
offered $30,000 to settle the claim. Id.
Ms. Harris filed a bad faith action
on March 31, 2011, alleging that GEICO should have settled her claim during the
statute’s safe harbor period based upon the medical information available to
GEICO at that time.8 Id. at 1226. A jury returned a
verdict in favor of Ms. Harris. Id. Notwithstanding the jury verdict,
the court entered judgment as a matter of law in GEICO’s favor. Id. at 1232.
The court noted that under Florida law an insured may recover only economic
damages where the injuries constitute a serious injury within the meaning of
Fla Stat. 627.737(2). Id. at 1230. The court further noted that an
insured may recover non-economic damages when there is “permanent injury within
a reasonable degree of medical probability.” Id. Ms. Harris argued that
“[GEICO] ignor[ed] [her counsel’s] later testimony that she anticipated — and
correctly at that — that [Ms. Harris] would sustain a permanent injury arising
from the subject car crash.” Id. at 1231. (internal quotations omitted).
The court rejected this argument explaining that in Florida “the entitlement to
non-economic damages does not turn on whether she or her counsel believes or
anticipates a finding of permanent injury. Rather, the standard is whether the
injury and the permanency thereof can be established within a reasonable degree
of medical probability.” Id. In the absence of that necessary medical evidence,
the court entered judgment in favor of GEICO, noting that Ms. Harris had not
shown that she sustained a permanent injury within a reasonable degree of
medical probability. Id.
on March 31, 2011, alleging that GEICO should have settled her claim during the
statute’s safe harbor period based upon the medical information available to
GEICO at that time.8 Id. at 1226. A jury returned a
verdict in favor of Ms. Harris. Id. Notwithstanding the jury verdict,
the court entered judgment as a matter of law in GEICO’s favor. Id. at 1232.
The court noted that under Florida law an insured may recover only economic
damages where the injuries constitute a serious injury within the meaning of
Fla Stat. 627.737(2). Id. at 1230. The court further noted that an
insured may recover non-economic damages when there is “permanent injury within
a reasonable degree of medical probability.” Id. Ms. Harris argued that
“[GEICO] ignor[ed] [her counsel’s] later testimony that she anticipated — and
correctly at that — that [Ms. Harris] would sustain a permanent injury arising
from the subject car crash.” Id. at 1231. (internal quotations omitted).
The court rejected this argument explaining that in Florida “the entitlement to
non-economic damages does not turn on whether she or her counsel believes or
anticipates a finding of permanent injury. Rather, the standard is whether the
injury and the permanency thereof can be established within a reasonable degree
of medical probability.” Id. In the absence of that necessary medical evidence,
the court entered judgment in favor of GEICO, noting that Ms. Harris had not
shown that she sustained a permanent injury within a reasonable degree of
medical probability. Id.
Here, the Court likewise finds that
within the Civil Remedy Notice Cure Period (“Cure Period”), i.e. from January
6, 2012 to March 7, 2012, Mr. Wojciechowski did not demonstrate within a
reasonable degree of medical probability that he had suffered a permanent
injury. As such, Allstate”s refusal to tender the $100,000 UIM policy limits
during the Cure Period, which was based on the medical records it possessed and
the fact that Mr. Wojciechowski incurred no out-of-pocket expenses, was not
made in bad faith.
within the Civil Remedy Notice Cure Period (“Cure Period”), i.e. from January
6, 2012 to March 7, 2012, Mr. Wojciechowski did not demonstrate within a
reasonable degree of medical probability that he had suffered a permanent
injury. As such, Allstate”s refusal to tender the $100,000 UIM policy limits
during the Cure Period, which was based on the medical records it possessed and
the fact that Mr. Wojciechowski incurred no out-of-pocket expenses, was not
made in bad faith.
a. Non-economic Damages were not
Warranted
Warranted
The Court further finds that Mr.
Wojciechowski’s injuries did not warrant consideration of non-economic damages
in this case. Florida Statute § 627.737(2) allows for the recovery of
non-economic damages upon a showing of certain serious impairments. In this case,
the only serious impairment at issue requires a showing of a permanent injury,
other than scarring, within a reasonable degree of medical probability. Fla.
Stat. § 627.737(2). On the facts on this record, there is no evidence to
suggest that non-economic damages should have triggered Mr. Wojciechowski’s UIM
policy limits.
Wojciechowski’s injuries did not warrant consideration of non-economic damages
in this case. Florida Statute § 627.737(2) allows for the recovery of
non-economic damages upon a showing of certain serious impairments. In this case,
the only serious impairment at issue requires a showing of a permanent injury,
other than scarring, within a reasonable degree of medical probability. Fla.
Stat. § 627.737(2). On the facts on this record, there is no evidence to
suggest that non-economic damages should have triggered Mr. Wojciechowski’s UIM
policy limits.
More specifically, the evidence
shows that during the Cure Period the information provided to Allstate
reflected that Mr. Wojciechowski had no such permanent injury; rather, he had
been placed at maximum medical improvement with an impairment rating of zero,
and his post-Accident cervical MRIs taken June 28, 2010 and again March 14,
2011 did not reflect any significant changes from his pre-Accident MRI taken
March 9, 2010.
shows that during the Cure Period the information provided to Allstate
reflected that Mr. Wojciechowski had no such permanent injury; rather, he had
been placed at maximum medical improvement with an impairment rating of zero,
and his post-Accident cervical MRIs taken June 28, 2010 and again March 14,
2011 did not reflect any significant changes from his pre-Accident MRI taken
March 9, 2010.
It appears that Mr. Wojciechowski
contends that Dr. Pigeon prematurely placed him at MMI and mistakenly,
prematurely assigned him an impairment rating of zero. The fact that he now
contends this placement and assignment were made in error is unavailing. The
Court evaluates an insurer’s good faith based on the evidence that informed the
insurer’s decision during the Cure Period. If it is true that the assignment
and placement were mistakenly made, there is no evidence in the record that
Allstate’s reliance on the absence of a permanent impairment rating of some
relevant degree was in bad faith. More specifically, Plaintiff offers no
evidence that Allstate would have known the assessment was a mistake. See
Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000) [25 Fla. L.
Weekly S177a] (“The insurer has a right to deny claims that it in good faith
believes are not owed on a policy. Even when it is later determined by a court
or arbitration that the insurer’s denial was mistaken, there is no cause of
action if the denial was in good faith.”); Worsham v. Provident Companies,
Inc., 249 F. Supp. 2d 1325, 1343-44 (N.D. Ga. 2002) (finding that insurer’s
reliance on independent medical examinations that insured argued contained
errors was not unreasonable and therefore could not support insured’s claim of
entitlement to bad faith penalties).
contends that Dr. Pigeon prematurely placed him at MMI and mistakenly,
prematurely assigned him an impairment rating of zero. The fact that he now
contends this placement and assignment were made in error is unavailing. The
Court evaluates an insurer’s good faith based on the evidence that informed the
insurer’s decision during the Cure Period. If it is true that the assignment
and placement were mistakenly made, there is no evidence in the record that
Allstate’s reliance on the absence of a permanent impairment rating of some
relevant degree was in bad faith. More specifically, Plaintiff offers no
evidence that Allstate would have known the assessment was a mistake. See
Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000) [25 Fla. L.
Weekly S177a] (“The insurer has a right to deny claims that it in good faith
believes are not owed on a policy. Even when it is later determined by a court
or arbitration that the insurer’s denial was mistaken, there is no cause of
action if the denial was in good faith.”); Worsham v. Provident Companies,
Inc., 249 F. Supp. 2d 1325, 1343-44 (N.D. Ga. 2002) (finding that insurer’s
reliance on independent medical examinations that insured argued contained
errors was not unreasonable and therefore could not support insured’s claim of
entitlement to bad faith penalties).
Mr. Wojciechowski alternatively
contends that the fact that a surgical recommendation had been made would
suffice to establish a permanent injury. (Dkt. 55 at 5, 11, 13) In this regard,
he argues that Allstate had knowledge of this permanent injury during the Cure
Period because Mr. Castagliola expressed in his demand letter that Dr. Pigeon
discussed that Mr. Wojciechowski could be a candidate for operative treatment
if conservative care failed. (Id.) He argues that Allstate ignored Dr.
Tambay’s notes that based on Mr. Wojciechowski’s complaints of pain and the
level and the location thereof, he had new symptoms possibly consistent with
cervical radiculopathy. (Id.) He also argues that Mr. Castagliola stated
in the demand letter that Dr. Tambay, the pain doctor, sent Mr. Wojciechowski
back to Dr. Pigeon to discuss whether he was a surgical candidate because pain
treatment, such as epidural steroid injections, had not yet provided
satisfactory relief. (Id.)
contends that the fact that a surgical recommendation had been made would
suffice to establish a permanent injury. (Dkt. 55 at 5, 11, 13) In this regard,
he argues that Allstate had knowledge of this permanent injury during the Cure
Period because Mr. Castagliola expressed in his demand letter that Dr. Pigeon
discussed that Mr. Wojciechowski could be a candidate for operative treatment
if conservative care failed. (Id.) He argues that Allstate ignored Dr.
Tambay’s notes that based on Mr. Wojciechowski’s complaints of pain and the
level and the location thereof, he had new symptoms possibly consistent with
cervical radiculopathy. (Id.) He also argues that Mr. Castagliola stated
in the demand letter that Dr. Tambay, the pain doctor, sent Mr. Wojciechowski
back to Dr. Pigeon to discuss whether he was a surgical candidate because pain
treatment, such as epidural steroid injections, had not yet provided
satisfactory relief. (Id.)
While Mr. Castagliola claims that
Dr. Pigeon thought Mr. Wojciechowski would be a good candidate for surgery, the
positions argued by Mr. Castagliola are primarily premised on Mr.
Wojciechowski’s subjective complaints of pain. Notably, the Florida Supreme
Court has held that subjective complaints may be evidence of the existence of a
physical injury but “a mere recitation of the plaintiff’s subjective complaints
of pain is insufficient to prove a permanent injury-the plaintiff must also
present expert medical testimony to establish the existence and permanency of
the alleged injury.” City of Tampa v. Long, 638 So. 2d 35, 38 (Fla.
1994). By way of example, Dr. Tambay’s notes indicate that based on Mr. Wojciechowski’s
subjective complaints of pain he may have symptoms consistent with cervical
radiculopathy. (Dkt. 55 at 11; Dkt. 35-6 at 14) But further testing showed
normal bilateral shoulders with no acute findings (Dkt. 35-6 at 11), no ulnar
nerve entrapment syndrome, and no cervical radiculopathy (Dkt. 35-6 at 16). The
testing only revealed bilateral shoulder impingement syndrome and for this Mr.
Wojciechowski was again released to full duty and prescribed physical therapy.
Thus, none of the objective information in the medical records demonstrated a
permanent injury within a reasonable degree of medical probability or indicated
that surgery was impending or foreseeable in the near future.
Dr. Pigeon thought Mr. Wojciechowski would be a good candidate for surgery, the
positions argued by Mr. Castagliola are primarily premised on Mr.
Wojciechowski’s subjective complaints of pain. Notably, the Florida Supreme
Court has held that subjective complaints may be evidence of the existence of a
physical injury but “a mere recitation of the plaintiff’s subjective complaints
of pain is insufficient to prove a permanent injury-the plaintiff must also
present expert medical testimony to establish the existence and permanency of
the alleged injury.” City of Tampa v. Long, 638 So. 2d 35, 38 (Fla.
1994). By way of example, Dr. Tambay’s notes indicate that based on Mr. Wojciechowski’s
subjective complaints of pain he may have symptoms consistent with cervical
radiculopathy. (Dkt. 55 at 11; Dkt. 35-6 at 14) But further testing showed
normal bilateral shoulders with no acute findings (Dkt. 35-6 at 11), no ulnar
nerve entrapment syndrome, and no cervical radiculopathy (Dkt. 35-6 at 16). The
testing only revealed bilateral shoulder impingement syndrome and for this Mr.
Wojciechowski was again released to full duty and prescribed physical therapy.
Thus, none of the objective information in the medical records demonstrated a
permanent injury within a reasonable degree of medical probability or indicated
that surgery was impending or foreseeable in the near future.
Although expressed by Mr.
Castagliola in the demand letter, Dr. Pigeon’s notes make no mention of future
surgery concerning Mr. Wojciechowski’s shoulders. The Parties dispute whether
Dr. Pigeon “recommended” surgery in his March 22, 2011 evaluation. While Dr.
Pigeon’s notes on that date state that he “discussed” operative treatment
concerning Mr. Wojciechowski’s cervical spine he never used the term
“recommend” anywhere in his reports. Viewing this evidence in a light most
favorable to Mr. Wojciechowski, even if the Court were to accept Dr. Pigeon’s
last notation as a “recommendation” for surgery, it could not support a finding
that Allstate acted in bad faith based on the facts of this case.
Castagliola in the demand letter, Dr. Pigeon’s notes make no mention of future
surgery concerning Mr. Wojciechowski’s shoulders. The Parties dispute whether
Dr. Pigeon “recommended” surgery in his March 22, 2011 evaluation. While Dr.
Pigeon’s notes on that date state that he “discussed” operative treatment
concerning Mr. Wojciechowski’s cervical spine he never used the term
“recommend” anywhere in his reports. Viewing this evidence in a light most
favorable to Mr. Wojciechowski, even if the Court were to accept Dr. Pigeon’s
last notation as a “recommendation” for surgery, it could not support a finding
that Allstate acted in bad faith based on the facts of this case.
The Eleventh Circuit has held that
the “possibility of surgical intervention is not . . . notice of permanent
injury.” Cadle, 838 F.3d at 1127. The evidence shows that Dr. Pigeon had
discussed the option of surgery but no surgery was imminent or even foreseeable
in the near future, relative to the Cure Period. In fact, the surgery option
was discussed and was apparently rejected at the time as Mr. Wojciechowski
expressed extreme reticence to undergo surgery. (Dkt. 35-6 at 23) In this
regard, on March 22, 2011, Dr. Pigeon stated for Mr. Wojciechowski to return
“in six weeks for reassessment and for re-discussion regarding operative treatment
as appropriate. [Mr. Wojciechowski] understands and agrees.” (Id.) The
evidence shows that Mr. Wojciechowski did not return in “six weeks for
reassessment and for re-discussion.” In fact, the medical records show that Mr.
Wojciechowski did not return to Dr. Pigeon at all until January 21, 2013, which
was more than a year after Mr. Castagliola issued the CRN on January 6, 2012
and well after the Cure Period expired on March 7, 2012.9 (See Dkts. 35-6, 50-7, 38-19)
the “possibility of surgical intervention is not . . . notice of permanent
injury.” Cadle, 838 F.3d at 1127. The evidence shows that Dr. Pigeon had
discussed the option of surgery but no surgery was imminent or even foreseeable
in the near future, relative to the Cure Period. In fact, the surgery option
was discussed and was apparently rejected at the time as Mr. Wojciechowski
expressed extreme reticence to undergo surgery. (Dkt. 35-6 at 23) In this
regard, on March 22, 2011, Dr. Pigeon stated for Mr. Wojciechowski to return
“in six weeks for reassessment and for re-discussion regarding operative treatment
as appropriate. [Mr. Wojciechowski] understands and agrees.” (Id.) The
evidence shows that Mr. Wojciechowski did not return in “six weeks for
reassessment and for re-discussion.” In fact, the medical records show that Mr.
Wojciechowski did not return to Dr. Pigeon at all until January 21, 2013, which
was more than a year after Mr. Castagliola issued the CRN on January 6, 2012
and well after the Cure Period expired on March 7, 2012.9 (See Dkts. 35-6, 50-7, 38-19)
Therefore, all Allstate was left
with was a notation that Mr. Wojciechowski did not want to have surgery and
that he and Dr. Pigeon were to re-discuss treatment options in six weeks. That
“re-discussion” never occurred during the Cure Period and thus to that point
there was only a possibility of surgery. But, as the Eleventh Circuit
explained, the possibility of surgery is not notice of surgery. Consequently,
Allstate could not have been on notice of his surgery prior to Mr.
Wojciechowski’s serving the CRN in January 2012. In fact, the medical records
showed that Mr. Wojciechowski had not received any treatment from any provider
since July 26, 2011, which was several months before Allstate’s receipt of the
Civil Remedy Notice.
with was a notation that Mr. Wojciechowski did not want to have surgery and
that he and Dr. Pigeon were to re-discuss treatment options in six weeks. That
“re-discussion” never occurred during the Cure Period and thus to that point
there was only a possibility of surgery. But, as the Eleventh Circuit
explained, the possibility of surgery is not notice of surgery. Consequently,
Allstate could not have been on notice of his surgery prior to Mr.
Wojciechowski’s serving the CRN in January 2012. In fact, the medical records
showed that Mr. Wojciechowski had not received any treatment from any provider
since July 26, 2011, which was several months before Allstate’s receipt of the
Civil Remedy Notice.
Nor could Allstate have been on
notice of any surgery prior to the expiration of the Cure Period. Indeed,
during the Cure Period, Allstate corresponded with Mr. Wojciechowski multiple
times and further inquired whether Mr. Wojciechowski had undergone surgery. To
this inquiry, Mr. Castagliola’s office confirmed that no surgery had occurred
or been scheduled. At the expiration of the Cure Period in March 2012, Mr.
Wojciechowski had not provided any additional medical records reflecting any
additional treatment. In fact, on November 21, 2012, well after the expiration
of the Cure Period, Mr. Castagliola’s office continued to confirm that Mr.
Wojciechowski had not had surgery and it did not believe there was any recent
treatment information. The fact that Mr. Wojciechowski ultimately had surgery
well more than a year after the expiration of the Cure Period does not alter
the good faith nature of Allstate’s evaluation during the Cure Period based on
the medical records it reviewed at that time. During the relevant time between
January 6, 2012 and March 7, 2012, the evidence showed that Dr. Pigeon, Mr.
Wojciechowski’s treating physician, and Dr. Cottrell, the orthopedic surgeon
treating Mr. Wojciechowski, had released him to full work duty and no physician
had assigned him as having a permanent injury. Therefore, Allstate cannot be
said to have acted in bad faith in evaluating his claim solely on the basis of
economic damages as demonstrated during the Cure Period.
notice of any surgery prior to the expiration of the Cure Period. Indeed,
during the Cure Period, Allstate corresponded with Mr. Wojciechowski multiple
times and further inquired whether Mr. Wojciechowski had undergone surgery. To
this inquiry, Mr. Castagliola’s office confirmed that no surgery had occurred
or been scheduled. At the expiration of the Cure Period in March 2012, Mr.
Wojciechowski had not provided any additional medical records reflecting any
additional treatment. In fact, on November 21, 2012, well after the expiration
of the Cure Period, Mr. Castagliola’s office continued to confirm that Mr.
Wojciechowski had not had surgery and it did not believe there was any recent
treatment information. The fact that Mr. Wojciechowski ultimately had surgery
well more than a year after the expiration of the Cure Period does not alter
the good faith nature of Allstate’s evaluation during the Cure Period based on
the medical records it reviewed at that time. During the relevant time between
January 6, 2012 and March 7, 2012, the evidence showed that Dr. Pigeon, Mr.
Wojciechowski’s treating physician, and Dr. Cottrell, the orthopedic surgeon
treating Mr. Wojciechowski, had released him to full work duty and no physician
had assigned him as having a permanent injury. Therefore, Allstate cannot be
said to have acted in bad faith in evaluating his claim solely on the basis of
economic damages as demonstrated during the Cure Period.
b. Economic Damages did not Trigger the UIM Policy Limits
In regard to economic damages, Mr.
Wojciechowski’s economic damages likewise did not trigger the UIM policy limits
because he in fact had incurred no out-of-pocket economic damages. The only
economic damages he had incurred at the time the Civil Remedy Notice was served
were the $20,085.44 in medical expenses paid by Pinellas County, which were
reduced to $14,155.70 and compromised further to $10,000 in the form of a
worker’s compensation lien. (Dkt. 38-18) It is undisputed that Allstate
tendered the $10,000 in PIP benefits as a full, complete, and final settlement
of the $10,000 worker’s compensation lien. It is undisputed that Kemper had
tendered its $100,000 policy limits and Mr. Wojciechowski had accepted that
tender. Mr. Wojciechowski concedes that he sustained no lost wages damages
because the sheriff’s office continued to pay him his salary. As a result of
the foregoing, Allstate replied to the Civil Remedy Notice on February 27,
2012, informing Mr. Wojciechowski that it had a difference of opinion concerning
the valuation and causation10 of his claims but it would consider
additional information he wanted to submit that might affect its evaluation.
Mr. Wojciechowski failed to provide any additional information to Allstate
during the Cure Period. Therefore, Allstate did not act in bad faith in
determining that Mr. Wojciechowski’s claim was within the $110,000 Kemper policy
limits and PIP benefits that had already been offered to and accepted by him.
Wojciechowski’s economic damages likewise did not trigger the UIM policy limits
because he in fact had incurred no out-of-pocket economic damages. The only
economic damages he had incurred at the time the Civil Remedy Notice was served
were the $20,085.44 in medical expenses paid by Pinellas County, which were
reduced to $14,155.70 and compromised further to $10,000 in the form of a
worker’s compensation lien. (Dkt. 38-18) It is undisputed that Allstate
tendered the $10,000 in PIP benefits as a full, complete, and final settlement
of the $10,000 worker’s compensation lien. It is undisputed that Kemper had
tendered its $100,000 policy limits and Mr. Wojciechowski had accepted that
tender. Mr. Wojciechowski concedes that he sustained no lost wages damages
because the sheriff’s office continued to pay him his salary. As a result of
the foregoing, Allstate replied to the Civil Remedy Notice on February 27,
2012, informing Mr. Wojciechowski that it had a difference of opinion concerning
the valuation and causation10 of his claims but it would consider
additional information he wanted to submit that might affect its evaluation.
Mr. Wojciechowski failed to provide any additional information to Allstate
during the Cure Period. Therefore, Allstate did not act in bad faith in
determining that Mr. Wojciechowski’s claim was within the $110,000 Kemper policy
limits and PIP benefits that had already been offered to and accepted by him.
Indeed, in his Response to the
instant motion, Mr. Wojciechowski acknowledges that there are no economic
damages at issue and states that if this case were to go to trial, “on the
issue of damages [he] will submit to the jury only his claims for past and
future non-economic losses as supported by testimony on causation and
permanency.” (Dkt. 55 at 20) (emphasis added)
instant motion, Mr. Wojciechowski acknowledges that there are no economic
damages at issue and states that if this case were to go to trial, “on the
issue of damages [he] will submit to the jury only his claims for past and
future non-economic losses as supported by testimony on causation and
permanency.” (Dkt. 55 at 20) (emphasis added)
In this regard, Mr. Wojciechowski
would seek to establish Allstate’s knowledge of a permanent injury during the
Cure Period by showing that Allstate had notice of Mr. Wojciechowski’s surgery.
The Court has already addressed this notion. The Court next turns to whether
certain aspects of Allstate’s claim handling procedures support a finding of
bad faith.
would seek to establish Allstate’s knowledge of a permanent injury during the
Cure Period by showing that Allstate had notice of Mr. Wojciechowski’s surgery.
The Court has already addressed this notion. The Court next turns to whether
certain aspects of Allstate’s claim handling procedures support a finding of
bad faith.
c. Allstate’s Claim Handling
Procedures
Procedures
i. Medical Authorizations, Records, and Independent Medical
Examination
Examination
Mr. Wojciechowski argues that
certain aspects of Allstate’s claim handling procedures could constitute bad
faith. In particular, Mr. Wojciechowski argues that there is evidence of bad
faith based on Allstate’s failure to use the medical authorizations, make
additional inquiries, keep thorough records, or request an independent medical
examination. These arguments are without merit based on the facts of this case.
certain aspects of Allstate’s claim handling procedures could constitute bad
faith. In particular, Mr. Wojciechowski argues that there is evidence of bad
faith based on Allstate’s failure to use the medical authorizations, make
additional inquiries, keep thorough records, or request an independent medical
examination. These arguments are without merit based on the facts of this case.
The district court in Cadle
rejected Ms. Cadle’s similar arguments that “GEICO should have investigated the
matter more fully” or that “GEICO should not have relied on [Ms. Cadle’s]
attorney to provide it with complete medical records” or that GEICO should have
“requested an independent medical examination of Mrs. Cadle.” No.
6:13-cv-1591-Orl-31GJK, at *5 (M.D. Fla. Feb. 24, 2015), aff’d 838 F.3d 1113
(11th Cir. 2016). As the court explained, “the insurers duty does not go this
far.” Id. To the contrary, the court noted
rejected Ms. Cadle’s similar arguments that “GEICO should have investigated the
matter more fully” or that “GEICO should not have relied on [Ms. Cadle’s]
attorney to provide it with complete medical records” or that GEICO should have
“requested an independent medical examination of Mrs. Cadle.” No.
6:13-cv-1591-Orl-31GJK, at *5 (M.D. Fla. Feb. 24, 2015), aff’d 838 F.3d 1113
(11th Cir. 2016). As the court explained, “the insurers duty does not go this
far.” Id. To the contrary, the court noted
Reliance on the documents provided by and representations
made by [Cadle’s] lawyer cannot amount to bad faith, and [Cadle] has cited no
authority to the contrary. Rather, the insurer is entitled to rely on the
documents provided by [Cadle’s] counsel, and the representations made by him
concerning his client’s claim. Moreover, there is no evidence that such
additional investigations would have produced a different result.
made by [Cadle’s] lawyer cannot amount to bad faith, and [Cadle] has cited no
authority to the contrary. Rather, the insurer is entitled to rely on the
documents provided by [Cadle’s] counsel, and the representations made by him
concerning his client’s claim. Moreover, there is no evidence that such
additional investigations would have produced a different result.
Id.
Similarly, here, the evidence shows
that Mr. Castagliola personally requested Mr. Wojciechowski’s medical records
and submitted them with his Demand Package received by Allstate on November 21,
2011. Mr. Castagliola also submitted a summary of those same medical records on
January 9, 2011, the day Allstate received the Civil Remedy Notice. Upon
receipt of the medical records, and during the Cure Period, Allstate followed
up with Mr. Castagliola, advising him that based on the medical records and
bills submitted by Mr. Castagliola’s office, Allstate continued to evaluate Mr.
Wojciechowski’s claim within the tortfeasor’s limits of $100,000 such that
there was no UIM exposure at the time. On February 27, 2016, also within the
Cure Period, Allstate followed up with Mr. Castagliola’s office and asked if
Mr. Wojciechowski had undergone surgery or if surgery was scheduled. Having
received no documentation of significant changes regarding Mr. Wojciechowski’s
medical treatment, Allstate, on February 27, 2012, responded to the Civil
Remedy Notice advising that its valuation of his injuries was within the
$100,000 Kemper policy limits previously tendered to him.
that Mr. Castagliola personally requested Mr. Wojciechowski’s medical records
and submitted them with his Demand Package received by Allstate on November 21,
2011. Mr. Castagliola also submitted a summary of those same medical records on
January 9, 2011, the day Allstate received the Civil Remedy Notice. Upon
receipt of the medical records, and during the Cure Period, Allstate followed
up with Mr. Castagliola, advising him that based on the medical records and
bills submitted by Mr. Castagliola’s office, Allstate continued to evaluate Mr.
Wojciechowski’s claim within the tortfeasor’s limits of $100,000 such that
there was no UIM exposure at the time. On February 27, 2016, also within the
Cure Period, Allstate followed up with Mr. Castagliola’s office and asked if
Mr. Wojciechowski had undergone surgery or if surgery was scheduled. Having
received no documentation of significant changes regarding Mr. Wojciechowski’s
medical treatment, Allstate, on February 27, 2012, responded to the Civil
Remedy Notice advising that its valuation of his injuries was within the
$100,000 Kemper policy limits previously tendered to him.
Thus, on this record, the Court
finds that it was not bad faith for Allstate to rely on representations from
Mr. Castagliola and/or Mr. Castagliola’s office that Allstate was provided all
of Mr. Wojciechowski’s medical records needed for it to make a determination.
Notably, Mr. Wojciechowski has not provided any evidence showing additional
medical tests or records that Allstate would have uncovered had it used the
medical authorizations or ordered an independent medical examination that would
have significantly impacted Allstate’s valuation of his claim. Likewise, even
if it could be proven that Allstate failed to keep more thorough records, this
failure at most could constitute negligence, but it could not support a finding
of bad faith on the facts of this case. Additionally, even if it could be shown
that Allstate did not act perfectly or prudently in this case, it need not do
so, it just must not act solely in bad faith. See Messinese, 622 Fed.
App’x at 839 (“[T]o fulfill the duty of good faith, an insurer does not have to
act perfectly, prudently, or even reasonably.”) (internal quotation marks
omitted).
finds that it was not bad faith for Allstate to rely on representations from
Mr. Castagliola and/or Mr. Castagliola’s office that Allstate was provided all
of Mr. Wojciechowski’s medical records needed for it to make a determination.
Notably, Mr. Wojciechowski has not provided any evidence showing additional
medical tests or records that Allstate would have uncovered had it used the
medical authorizations or ordered an independent medical examination that would
have significantly impacted Allstate’s valuation of his claim. Likewise, even
if it could be proven that Allstate failed to keep more thorough records, this
failure at most could constitute negligence, but it could not support a finding
of bad faith on the facts of this case. Additionally, even if it could be shown
that Allstate did not act perfectly or prudently in this case, it need not do
so, it just must not act solely in bad faith. See Messinese, 622 Fed.
App’x at 839 (“[T]o fulfill the duty of good faith, an insurer does not have to
act perfectly, prudently, or even reasonably.”) (internal quotation marks
omitted).
ii. Allstate’s Closing the File and
Use of Colossus
Use of Colossus
Mr. Wojciechowski also argues that
Allstate’s closing out of his file and its purported misuse of the Colossus are
evidence of bad faith. The Court finds these contentions unavailing. There is
no evidence to suggest that either of these asserted actions had any impact on
the evaluation of Mr. Wojciechowski’s claim. Specifically, the evidence shows
that Allstate continued to update Mr. Wojciechowski’s file with new information
and conduct new evaluations when warranted.
Allstate’s closing out of his file and its purported misuse of the Colossus are
evidence of bad faith. The Court finds these contentions unavailing. There is
no evidence to suggest that either of these asserted actions had any impact on
the evaluation of Mr. Wojciechowski’s claim. Specifically, the evidence shows
that Allstate continued to update Mr. Wojciechowski’s file with new information
and conduct new evaluations when warranted.
Further, the evidence shows that
Allstate did not rely solely on the Colossus in evaluating Mr. Wojciechowski’s
claim. Rather, Allstate also relied on the assessments by its adjusters and
evaluation consultants to make a determination. By way of example, the Colossus
still showed that Mr. Wojciechowski’s claim was within the $100,000
tortfeasor’s insurance limits even after Allstate received the updated medical
records concerning his cervical surgery in June of 2013. (Dkt. 38-21) Allstate
tendered the $100,000 UIM benefits notwithstanding.
Allstate did not rely solely on the Colossus in evaluating Mr. Wojciechowski’s
claim. Rather, Allstate also relied on the assessments by its adjusters and
evaluation consultants to make a determination. By way of example, the Colossus
still showed that Mr. Wojciechowski’s claim was within the $100,000
tortfeasor’s insurance limits even after Allstate received the updated medical
records concerning his cervical surgery in June of 2013. (Dkt. 38-21) Allstate
tendered the $100,000 UIM benefits notwithstanding.
Ultimately, the evidence shows that
during the Cure Period, Mr. Wojciechowski was at MMI, no doctor had designated
him as having a permanent injury, he was released to full duty, he had no
out-of-pocket economic damages, he had received the $100,000 tortfeasor’s
policy limits, no surgery was scheduled in the near future, and the medical
records reflected that he had not treated in several months. For those reasons,
the Court finds as a matter of law that Allstate did not act in bad faith by
declining to tender the $100,000 UIM policy limits during the Cure Period based
on the medical records during that pertinent time. Accordingly, Allstate’s
motion for summary judgment as to Count I is GRANTED.
during the Cure Period, Mr. Wojciechowski was at MMI, no doctor had designated
him as having a permanent injury, he was released to full duty, he had no
out-of-pocket economic damages, he had received the $100,000 tortfeasor’s
policy limits, no surgery was scheduled in the near future, and the medical
records reflected that he had not treated in several months. For those reasons,
the Court finds as a matter of law that Allstate did not act in bad faith by
declining to tender the $100,000 UIM policy limits during the Cure Period based
on the medical records during that pertinent time. Accordingly, Allstate’s
motion for summary judgment as to Count I is GRANTED.
B. Unfair Claim Settlement Practices
In Count II, Mr. Wojciechowski
asserts an Unfair Claim Settlement Practices cause of action under Florida
Statutes, Section 626.9541, for:
asserts an Unfair Claim Settlement Practices cause of action under Florida
Statutes, Section 626.9541, for:
a. Failing to adopt and implement standards for the proper
investigation of claims;
investigation of claims;
b. Misrepresenting pertinent facts or insurance policy
provisions;
provisions;
c. Failing to acknowledge and act promptly upon
communications with respect to claims;
communications with respect to claims;
d. Denying claims without conducting a reasonable
investigation;
investigation;
e. Failing to affirm or deny full or partial coverage of
claims or failing to provide a written statement that the claim is being
investigated within 30 days after proof of loss statements have been completed;
claims or failing to provide a written statement that the claim is being
investigated within 30 days after proof of loss statements have been completed;
f. Failing to promptly provide a reasonable explanation in
writing of the basis for a denial of a claim or offer of compromise;
writing of the basis for a denial of a claim or offer of compromise;
g. Failing to promptly notify the insured of any additional
information necessary for processing the claim; and
information necessary for processing the claim; and
h. Failing to clearly explain the nature of the requested
information and why the information is necessary.
information and why the information is necessary.
(Dkt. 1 at 7) Allstate argues that
it is entitled to summary judgment as to Count II because Allstate “did not
deny Mr. Wojciechowski’s claim, did not question the information about his
medical bills and injuries disclosed by his lawyers, did not deny coverage,
[and] did not fail to diligently investigate coverage, liability or damages . .
. .” (Dkt. 38 at 13) Allstate further argues “there is no evidence that
Allstate misrepresented pertinent facts or policy provisions or otherwise
failed to respond to requests for coverage information.” (Id. at 24)
it is entitled to summary judgment as to Count II because Allstate “did not
deny Mr. Wojciechowski’s claim, did not question the information about his
medical bills and injuries disclosed by his lawyers, did not deny coverage,
[and] did not fail to diligently investigate coverage, liability or damages . .
. .” (Dkt. 38 at 13) Allstate further argues “there is no evidence that
Allstate misrepresented pertinent facts or policy provisions or otherwise
failed to respond to requests for coverage information.” (Id. at 24)
The Court finds no evidence that
Allstate violated any of the statutory provisions or otherwise engaged in
unfair settlement practices. In fact, the evidence shows otherwise. The
evidence shows that upon being notified of Mr. Wojciechowski’s injury between
October 6, 2010 and October 13, 2010, Allstate promptly undertook to
investigate the claims. (Dkt. 54 at ¶¶ 7-8) Allstate attempted to communicate
with Mr. Castagliola on October 14, 2010 to obtain information regarding his
client. (Id. at 8) In Mr. Castagliola’s letter of representation, he
requested Mr. Wojciechowski’s insurance coverage information. (Id. at 6)
Allstate responded via letter on October 25, 2010 and provided Mr.
Wojciechowski’s insurance information. (Dkt. 38-5) On November 4, 2010,
Allstate provided Mr. Castagliola a copy of Mr. Wojciechowski’s policy. (Dkt.
38-6) In point of fact, Mr. Castagliola testified that he believes he received
everything he requested from Allstate and that nothing stood out in his mind as
being missing. (Dkt. 41 at 15:3-16:3)
Allstate violated any of the statutory provisions or otherwise engaged in
unfair settlement practices. In fact, the evidence shows otherwise. The
evidence shows that upon being notified of Mr. Wojciechowski’s injury between
October 6, 2010 and October 13, 2010, Allstate promptly undertook to
investigate the claims. (Dkt. 54 at ¶¶ 7-8) Allstate attempted to communicate
with Mr. Castagliola on October 14, 2010 to obtain information regarding his
client. (Id. at 8) In Mr. Castagliola’s letter of representation, he
requested Mr. Wojciechowski’s insurance coverage information. (Id. at 6)
Allstate responded via letter on October 25, 2010 and provided Mr.
Wojciechowski’s insurance information. (Dkt. 38-5) On November 4, 2010,
Allstate provided Mr. Castagliola a copy of Mr. Wojciechowski’s policy. (Dkt.
38-6) In point of fact, Mr. Castagliola testified that he believes he received
everything he requested from Allstate and that nothing stood out in his mind as
being missing. (Dkt. 41 at 15:3-16:3)
The evidence further shows that
beginning in November 2010 and throughout the investigation of Mr.
Wojciechowski’s claim, Allstate communicated frequently with Kemper to
facilitate the evaluation of Mr. Wojciechowski’s UIM claim. (Dkt. 54; Dkt.
38-2) Allstate also communicated with Mr. Castagliola’s office to request
information it needed to further investigate and evaluate Mr. Wojciechowski’s
claim. By way of example, on November 11, 2010, Allstate requested that Mr. Castagliola
provide:
beginning in November 2010 and throughout the investigation of Mr.
Wojciechowski’s claim, Allstate communicated frequently with Kemper to
facilitate the evaluation of Mr. Wojciechowski’s UIM claim. (Dkt. 54; Dkt.
38-2) Allstate also communicated with Mr. Castagliola’s office to request
information it needed to further investigate and evaluate Mr. Wojciechowski’s
claim. By way of example, on November 11, 2010, Allstate requested that Mr. Castagliola
provide:
a. a signed medical and wage authorization.
b. the name, address and phone number of all physicians and
medical care facilities that have relevant information about Mr. Wojciechowski.
medical care facilities that have relevant information about Mr. Wojciechowski.
c. the name, address and phone number of Mr. Wojciechowski’s
employer, along with a letter from the employer confirming the amount of lost
wages.
employer, along with a letter from the employer confirming the amount of lost
wages.
d. medical bills and a report including the ICD-9 diagnosis
codes and/or CPT-4 procedure codes associated with treatment or services
rendered for Mr. Wojciechowski’s alleged injury.
codes and/or CPT-4 procedure codes associated with treatment or services
rendered for Mr. Wojciechowski’s alleged injury.
e. information on any worker’s compensation carrier claims.
(Dkt. 54 at ¶ 15) Throughout the
investigation Allstate continued to follow up with Mr. Castagliola concerning
updates regarding Mr. Wojciechowski’s treatment, signed authorizations, and
other matters affecting Mr. Wojciechowski’s claim. (Dkt. 54; Dkt. 38-2) At the
conclusion of its investigation and evaluation during the Cure Period, Allstate
explained to Mr. Wojciechowski that it continued to value his claim within the
tortfeasor’s $100,000 policy limit. Therefore, Allstate explained that it would
not tender the UIM policy limits due to issues with respect to valuation and
causation. (Dkt. 1-4; Dkt. 38-15) Allstate however advised Mr. Wojciechowski
that it would consider any additional information that he submitted that might
assist in its efforts to properly resolve his claim. (Id.) Ultimately,
Allstate immediately tendered the full UIM policy limits when it was presented
with medical records that could reasonably trigger the UIM coverage. In this
case, that did not occur until June 2013 when Mr. Castagliola presented records
showing that Mr. Wojciechowski had undergone surgery.
investigation Allstate continued to follow up with Mr. Castagliola concerning
updates regarding Mr. Wojciechowski’s treatment, signed authorizations, and
other matters affecting Mr. Wojciechowski’s claim. (Dkt. 54; Dkt. 38-2) At the
conclusion of its investigation and evaluation during the Cure Period, Allstate
explained to Mr. Wojciechowski that it continued to value his claim within the
tortfeasor’s $100,000 policy limit. Therefore, Allstate explained that it would
not tender the UIM policy limits due to issues with respect to valuation and
causation. (Dkt. 1-4; Dkt. 38-15) Allstate however advised Mr. Wojciechowski
that it would consider any additional information that he submitted that might
assist in its efforts to properly resolve his claim. (Id.) Ultimately,
Allstate immediately tendered the full UIM policy limits when it was presented
with medical records that could reasonably trigger the UIM coverage. In this
case, that did not occur until June 2013 when Mr. Castagliola presented records
showing that Mr. Wojciechowski had undergone surgery.
Based on the foregoing, the Court
concludes that Allstate did not violate any of the statutory provisions alleged
in the Complaint and Allstate is entitled to summary judgment as to Count II as
well. Accordingly, Allstate’s motion for summary judgment as to Count II for
Unfair Claims Settlement Practices is GRANTED.
concludes that Allstate did not violate any of the statutory provisions alleged
in the Complaint and Allstate is entitled to summary judgment as to Count II as
well. Accordingly, Allstate’s motion for summary judgment as to Count II for
Unfair Claims Settlement Practices is GRANTED.
IV. CONCLUSION
Upon consideration of the foregoing,
it is hereby ORDERED as follows:
it is hereby ORDERED as follows:
1. Defendant’s Motion for Summary
Judgment (Dkt. 38) is GRANTED.
Judgment (Dkt. 38) is GRANTED.
2. The CLERK is DIRECTED to
enter judgment for Defendant and against Plaintiff in accordance with this
Order.
enter judgment for Defendant and against Plaintiff in accordance with this
Order.
3. The CLERK is further DIRECTED
to TERMINATE any pending motions and CLOSE this case.
to TERMINATE any pending motions and CLOSE this case.
__________________
1The action was initially filed by
both Mr. and Ms. Wojciechowski; however, the Court previously dismissed Ms.
Wojciechowski’s claim. (See Dkt. 22)
both Mr. and Ms. Wojciechowski; however, the Court previously dismissed Ms.
Wojciechowski’s claim. (See Dkt. 22)
2This $230,000.00 represents the
total combined value of the $100,000 of the tortfeasor’s policy limits, the
$20,085 paid by worker’s compensation for medical expenses, the $10,000 in
personal injury protection benefits paid by Allstate, and the $100,000 of
Allstate’s policy limits.
total combined value of the $100,000 of the tortfeasor’s policy limits, the
$20,085 paid by worker’s compensation for medical expenses, the $10,000 in
personal injury protection benefits paid by Allstate, and the $100,000 of
Allstate’s policy limits.
3Mr.
Wojciechowski served his Civil Remedy Notice on January 6, 2012. (Dkt. 54 at ¶
12) The medical records show that his last treatment prior to serving the
notice occurred on July 26, 2011 and was rendered by the pain management
doctor, Dr. Nishin S. Tambay. (Dkt. 35-6 at 17)
Wojciechowski served his Civil Remedy Notice on January 6, 2012. (Dkt. 54 at ¶
12) The medical records show that his last treatment prior to serving the
notice occurred on July 26, 2011 and was rendered by the pain management
doctor, Dr. Nishin S. Tambay. (Dkt. 35-6 at 17)
4Ms. Roe’s
specific role is unspecified in the record.
specific role is unspecified in the record.
5Fla. Stat.
§ 440.39(3)(a) permits an entity that pays worker’s compensation benefits on
behalf of a person injured by a third-party tortfeasor to recover a pro-rata
share of the benefits paid if the injured party ultimately receives a judgment
against or enters into a settlement with the third-party tortfeasor.
§ 440.39(3)(a) permits an entity that pays worker’s compensation benefits on
behalf of a person injured by a third-party tortfeasor to recover a pro-rata
share of the benefits paid if the injured party ultimately receives a judgment
against or enters into a settlement with the third-party tortfeasor.
6“Although
an unpublished opinion is not binding on this court, it is persuasive
authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209
F.3d 1286, 1289 (11th Cir. 2000).
an unpublished opinion is not binding on this court, it is persuasive
authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209
F.3d 1286, 1289 (11th Cir. 2000).
7The court
noted that percutaneous discectomies are brief outpatient procedures performed
in about fifteen minutes and that insurance claims based on percutaneous
discectomies usually settle for between $4,000 and $6,000. Id. at 1226.
noted that percutaneous discectomies are brief outpatient procedures performed
in about fifteen minutes and that insurance claims based on percutaneous
discectomies usually settle for between $4,000 and $6,000. Id. at 1226.
8Prior to
the filing of the bad faith action, Ms. Harris filed suit in state court on the
underlying liability action. During the pendency of that action she underwent
spinal fusion surgery that more than quadrupled her medical costs. On April 20,
2010, GEICO tendered the policy limits. Ms. Harris rejected this tender. The
ensuing trial resulted in a jury verdict in the amount of $336,351. Id.
the filing of the bad faith action, Ms. Harris filed suit in state court on the
underlying liability action. During the pendency of that action she underwent
spinal fusion surgery that more than quadrupled her medical costs. On April 20,
2010, GEICO tendered the policy limits. Ms. Harris rejected this tender. The
ensuing trial resulted in a jury verdict in the amount of $336,351. Id.
9Based on
the medical records, Mr. Wojciechowski saw Dr. Tambay on July 26, 2011 (Dkt.
35-6 at 17), January 12, 2012 (Dkt. 50-7), and July 12, 2012 (Dkt. 50-7).
Allstate was not informed about the latter two visits during the Cure Period.
the medical records, Mr. Wojciechowski saw Dr. Tambay on July 26, 2011 (Dkt.
35-6 at 17), January 12, 2012 (Dkt. 50-7), and July 12, 2012 (Dkt. 50-7).
Allstate was not informed about the latter two visits during the Cure Period.
10Bearing on
the issue of causation was that based on the medical records, it appeared that
the spinal issue at the C5-C6 level for which Dr. Pigeon discussed operative
treatment predated the car Accident involving Ms. Granata. This was evidenced
by Dr. Pigeon’s repeated findings that each post-Accident MRI was similar to,
consistent with, and showed no major changes when compared with, the
pre-Accident MRI. Additionally, on January 2, 2011, subsequent to and unrelated
to the car Accident with Ms. Granata, Mr. Wojciechowski suffered another injury
to his lower back while making an arrest for which worker’s compensation
assigned a new claim.
the issue of causation was that based on the medical records, it appeared that
the spinal issue at the C5-C6 level for which Dr. Pigeon discussed operative
treatment predated the car Accident involving Ms. Granata. This was evidenced
by Dr. Pigeon’s repeated findings that each post-Accident MRI was similar to,
consistent with, and showed no major changes when compared with, the
pre-Accident MRI. Additionally, on January 2, 2011, subsequent to and unrelated
to the car Accident with Ms. Granata, Mr. Wojciechowski suffered another injury
to his lower back while making an arrest for which worker’s compensation
assigned a new claim.
* * *