United States District Court, D. Nevada
before the court is plaintiff Brenda Thompson's
(“plaintiff”) motion for partial summary judgment
regarding “no reasonable basis to refer Mrs. Thompson
to the Special Investigation Unit.” (ECF No. 68).
Defendant Allstate Insurance Company
(“defendant”) filed a response (ECF No. 80), to
which plaintiff replied (ECF No. 82).
before the court is plaintiff's motion for partial
summary judgment regarding breach of the duty to cooperate.
(ECF No. 70). Defendant filed a response (ECF No. 79), to
which plaintiff replied (ECF No. 81).
before the court is defendant's motion for summary
judgment. (ECF No. 72). Plaintiff filed a response (ECF No.
77), to which defendant replied (ECF No. 83).
before the court is plaintiff's motion to strike
defendant's reply. (ECF No. 87). Defendant filed a
response (ECF No. 89), to which plaintiff replied (ECF No.
instant action arises from a dispute regarding insurance
payments for two motor vehicle accidents. Plaintiff was
insured by defendant under an automobile policy that included
$50, 000 in medical payment coverage per incident. (ECF No.
68 at 2). On May 8, 2013, plaintiff was in a car accident.
Id. Plaintiff was in a second car accident on
January 23, 2014. Id. Plaintiff's complaint is
scant on details, but she alleges that “[defendant]
routinely denied [her] claims and unreasonably delayed in
paying legitimate claims” pertaining to both accidents.
(ECF No. 1 at 2).
received care from Dr. Marjorie Belsky at Integrated Pain
Specialist (“IPS”). Id. Plaintiff
alleges defendant refused and delaying paying Dr. Belsky, who
refused to provide treatment to plaintiff due to the unpaid
bills. Id. Meanwhile, defendant was
investigating-and ultimately filed suit against-Dr. Belsky
for defrauding patients and insurers by providing unnecessary
medical care to patients and submitting false billings to
insurers. Id. at 3.
was seeing Dr. Belsky “about once per month” for
treatment. (ECF No. 77 at 6). However, defendant closed
plaintiff's May 8 claim on January 9, 2014. Id.
Defendant claims that it received a bill for treatment on
November 4, 2013, and did not receive any information
suggesting that plaintiff was still seeing Dr. Belsky
thereafter. (ECF No. 72 at 16). Defendant argues that it
properly closed coverage on that basis. Id.
represents that “there would be no prohibition of
re-opening the coverage should additional facts be made known
to the adjuster.” Id. Defendant further argues
that “[h]ad additional bills been received, there was
nothing keeping [defendant] from reopening the first
claim.” (ECF No. 83 at 4). However, defendant
“specifically instructed IPS of the new claim number
related to the second accident.” (ECF No. 72 at 15-16).
After the first claim was closed, Dr. Belsky “submitted
a number of its bills following the second accident under the
first claim number.” Id. at 16. Although there
was supposedly no prohibition on re-opening the first claim,
defendant kept the May 8 claim closed.
then referred plaintiff's insurance claims to the
“special investigation unit” (“SIU”),
which was designated to investigate suspicious claims. (ECF
No. 80 at 5). Defendant “does not deny that it has a
special investigation unit to investigate suspicious claims,
that it investigated Belsky's business practices, or that
it referred [plaintiff's] claims . . . to the SIU for
investigation because she was receiving treatment from
Belsky.” Id. at 5-6.
never reviewed any of Dr. Belsky's medical records. (ECF
No. 77 at 8). Nonetheless, the SIU retained Dr. Robert Berry
to perform record reviews of plaintiff's file.
Id. at 9. Although defendant did not provide Dr.
Berry with complete medical records, Dr. Berry did not
criticize Dr. Belsky's medical care. Id. The SIU
requested an independent medical exam, but later submitted
plaintiff's file for a second record review. Id.
at 10. Once again, defendant did not provide the reviewing
doctor, Dr. Andrew Kim, with complete records. Id.
Like Dr. Berry, Dr. Kim did not criticize Dr. Belsky's
again demanded that plaintiff submit to an independent
medical exam. Id. at 11-12. Dr. Cesar Estela
performed the medical exam and, like Drs. Berry and Kim, did
not criticize Dr. Belsky's treatment. Id. at 12.
However, Dr. Estela concluded that plaintiff had reached
“maximum medical improvement” (“MMI”)
on her claim, meaning “medical treatment would not
improve [plaintiff's] underlying medical
condition.” Id. Defendant closed
plaintiff's claim accordingly. Id. Plaintiff
argues, however, that MMI “was not a condition to
medical payment coverage” under her policy.
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The evidence of the nonmovant is “to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id.
Defendant's motion ...