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Holtzapple v. Nationwide Mutual Fire Insurance Co.

United States District Court, M.D. Florida, Orlando Division

June 18, 2019




         THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment (Doc. 37). Plaintiff filed a Response in opposition (Doc. 65), to which Defendant filed a Reply (Doc. 68). For the reasons set forth below, Defendant's Motion will be denied.

         I. Background

         On or about March 22, 2006, non-party Lisa Talley was involved in an automobile accident with Plaintiff. (Talley Aff., Doc. 65-3, at 1). The collision resulted in permanent injury to Plaintiff. (June 11, 2007 Letter, Doc. 52-1, at 19). At the time of the collision, Talley was insured under a policy issued by Defendant. (See generally Apr. 21, 2006 Letter, Doc. 2-1). The policy had a bodily injury limit of $50, 000 per person and $100, 000 per occurrence. (Id. at 3).

         The following day, Talley informed Defendant of the collision. (See Activity Log, Doc. 51-1, at 185-88). Adjuster Tamara McNeil was assigned to the claim. (Whisler Dep., Doc. 50-1, at 19:12-14). McNeil determined that Talley was one hundred percent liable for the collision. (Doc. 51-1 at 187).

         On April 17, 2006, Defendant received a letter of representation from Plaintiff's counsel.[1](See generally Apr. 13, 2006 Letter, Doc. 51-2). Therein, Plaintiff's counsel notified Defendant that Plaintiff would be seeking a claim for injuries and damages she sustained as a result of the collision. (Id. at 1). In response, prior to receiving any medical records, Defendant set the reserve at $8, 000 for Plaintiff's injuries, noting that the collision was “a pretty good impact” and Plaintiff had no prior injuries. (Doc. 50-1 at 40:24-41:4, 42:22-43:1). On February 19, 2007, Plaintiff's counsel advised Defendant that a demand package would be sent once Plaintiff completed her medical treatment. (Feb. 19, 2007 Letter, Doc. 42-2, at 1).

         On June 11, 2007, Plaintiff's counsel sent Defendant a demand package. (See generally Doc. 52-1). Plaintiff's treating physician, Dr. Peter Brockman, diagnosed Plaintiff with a “cervical disc herniation, cervical sprain/strain, thoracic sprain/strain[, ] and lumbar sprain/strain.” (Id. at 3). Dr. Brockman assigned Plaintiff a thirteen percent permanent impairment rating, affecting the body as a whole, as a direct result of the collision. (Id.). Chiropractic records indicated that Plaintiff was treated approximately thirty-four times from March to July 2006. (Radiographic Report, Doc. 53-1, at 5-12; Radiographic Report, Doc. 54-1, at 1-15). The demand package also noted that Plaintiff had attained maximum medical improvement on June 26, 2006, and had incurred $10, 210.10 in medical expenses, with an additional $8, 000 in anticipated future medical costs. (Doc. 52-1 at 3-4). Consequently, Plaintiff demanded $167, 500 to settle her claim against Defendant. (Id. at 1).

         After receiving Plaintiff's demand package, Defendant continued to maintain its reserve of $8, 000. (Doc. 50-1 at 67:11-21). Linda Myrick, the new adjuster assigned to Plaintiff's claim, evaluated the claim and assessed $1, 500 for “special damages economic loss” and up to $6, 500 for “general damages/non-economic” loss. (Doc. 50-1 at 45:11-13, 57:16-58:10, 60:2-17). Despite this, Defendant responded by sending Plaintiff a counteroffer to settle the claim for $5, 000 and requesting additional medical records.[2] (June 28, 2007 Letter, Doc. 45-1, at 1). Plaintiff rejected Defendant's counteroffer and informed Defendant that she was seeking the policy limits. (Oct. 30, 2007 Letter, Doc. 56-5, at 1). Defendant increased its settlement offer to $6, 000 on December 19, 2007. (Dec. 19, 2007 Letter, Doc. 45-3, at 1). Plaintiff rejected the offer, reiterating her demand for the policy limits. (Dec. 19, 2007 Letter, Doc. 45-4, at 1).

         On January 8, 2018, Myrick asked her manager, Joseph Fowler, to review her valuation of Plaintiff's claim. (Activity Log, Doc. 40-1, at 19). Fowler reviewed the file, (see Fowler Dep., Doc. 33-4, at 32:7-17), and increased the reserve to $25, 000 based on the medical records that had been received, (id. at 28:1-7).

         On January 31, 2008, Defendant requested that Plaintiff provide her MRI films for review. (Jan. 31, 2008 Letter, Doc. 45-5, at 1). On March 5, 2008, Plaintiff's counsel sent Defendant a report from a neurological consultation and reports from MRIs. (Mar. 5, 2008 Letter, Doc. 45-6, at 2-8). The letter noted that Plaintiff had suffered a posterior disc herniation of the lumbar region and had incurred close to $4, 000 in outstanding medical specials. (Id. at 1). Additionally, the letter advised that Plaintiff was continuing treatment and was contemplating cervical epidural steroid injections recommended by her treating physician, Dr. Jonathan Greenberg. (Id.). No. surgical recommendations were made at the time. (See generally id.; see also Muir Dep., Doc. 49-2, at 57:14-17).

         Defendant again requested the MRI films on April 25, 2008, as well as any other medical records that had not been previously sent. (Apr. 25, 2008 Letter, Doc. 56-10, at 1). On October 13, 2009, Plaintiff provided medical records for chiropractic care she received from January 2007 through September 2009. (Oct. 13, 2009 Fax, Doc. 56-11, at 2-21). During that time, Plaintiff received treatment approximately thirteen times, and her medical bills totaled $9, 715.05. (Id. at 10-17, 21). In response, Defendant increased its settlement offer to $10, 000. (Dec. 1, 2009 Letter, Doc. 56-12, at 1). Plaintiff rejected Defendant's offer on December 9, 2009, noting that Plaintiff had incurred close to $5, 000 in out of pocket medical expenses and was still undergoing treatment. (Dec. 9, 2009 Letter, Doc. 56-13, at 1).

         On January 5, 2010, Plaintiff's counsel and Defendant engaged in further settlement negotiations. (Doc. 51-1 at 93; Muir Notes, Doc. 36-4, at 5). The parties largely dispute the contents of that discussion but agree that Plaintiff was willing to accept $45, 000 to settle the claim. (Id.). Additionally, the parties agree that Defendant countered with an increased offer but disagree as to the amount that was offered. (See id.).

         On March 3, 2010, Plaintiff provided Defendant with medical records for treatment Plaintiff received from an orthopedic surgeon, Dr. Scott Katzman. (See generally Mar. 3, 2010 Letter, Doc. 47-1, at 1). Dr. Katzman recommended a conservative treatment plan for Plaintiff, including medication and injection therapy, and noted that surgery could be pursued in the event conservative treatment did not work. (Id. at 4). Dr. Katzman administered an epidural block to Plaintiff's lumbar spine and documented some improvement before Plaintiff's pain began slowly trickling back. (Id. at 6-8). Dr. Katzman advised Plaintiff to try more oral medicines before proceeding with a more aggressive plan of treatment. (Id. at 8). Additionally, the March 3, 2010 letter informed Defendant that the statute of limitations was expiring in three weeks and offered to settle Plaintiff's claim for the policy limits if tendered by March 12, 2010. (Id. at 1). Defendant made a counteroffer of $17, 500 on March 10, 2010. (Mar. 10, 2010 Letter, Doc. 47-2, at 1). Plaintiff filed suit on March 16, 2010, and was no longer willing to settle her claim for the policy limits. (See Copeland Dep., Doc. 33-2, at 32:10-14). Final judgment was awarded in favor of Plaintiff in the amount of $1, 696, 826.[3] (Final J., Doc. 2-2, at 2).

         II. Summary ...

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