United States District Court, M.D. Florida, Orlando Division
E. MENDOZA UNITED STATES DISTRICT JUDGE.
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.
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).
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).
April 17, 2006, Defendant received a letter of representation
from Plaintiff's counsel.(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).
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).
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. (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).
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).
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
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).
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.).
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. (Final J., Doc.
2-2, at 2).