Herring v. State Farm Mutual Automobile Insurance Company

Filing 46

MEMORANDUM OPINION AND ORDER granting defendant's 28 MOTION for Summary Judgment. Signed by Hon. Chief Judge Mark E. Fuller on 10/15/09. (djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A L C O L M HERRING, P l a in tif f , v. S T A T E FARM MUTUAL A U T O M O B IL E INSURANCE C O M P A N Y , d/b/a STATE FARM IN S U R A N C E COMPANIES, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-823-MEF (W O ­ DO NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION O n July 30, 2007, Malcolm D. Herring, Jr. ("Plaintiff") filed suit against State Farm M u tual Automobile Insurance Company ("Defendant") in the Circuit Court of Montgomery C o u n ty, Alabama. Plaintiff alleges breach of contract and bad faith in failing to pay benefits o n an underinsured motorist claim Plaintiff filed. T h is cause is before the Court on Defendant's Motion for Summary Judgment (Doc. # 2 8 ) filed on July 10, 2009. The Court has carefully considered the arguments made in su p p o rt of and in opposition to the motion, and for the reasons set forth below, the Court f in d s that the motion is due to be GRANTED. I I . JURISDICTION AND VENUE J u r is d ic tio n over Plaintiff's claims is proper under 28 U.S.C. § 1332(a) (diversity). T h e parties do not contest personal jurisdiction or venue, and the Court finds adequate

a lle g a tio n s in support of both personal jurisdiction and venue. I I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears t h e initial responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any,' which it believes demonstrate the a b se n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the

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o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the n o n m o v in g party has responded to the motion for summary judgment, the court must grant su m m a r y judgment if there is no genuine issue of material fact and the moving party is e n title d to judgment as a matter of law. See Fed. R. Civ. P. 56(c). I V . FACTS AND PROCEDURAL BACKGROUND T h e Court has carefully considered all depositions, affidavits, and other documents s u b m itte d in support of and in opposition to the motion. The submissions of the parties, v i e w e d in the light most favorable to the nonmoving party, establish the following facts. A . Facts 1 . The Collision P la in tif f was involved in a motor vehicle collision on August 2, 2005 while driving h is 1995 Chevrolet Suburban on Perry Hill Road in Montgomery. David Hooks' ("Hooks") O ld s m o b ile Cutlass collided with a Mitsubishi Endeavor Nancy Beeman ("Beeman") was d riv in g . Beeman's Mitsubishi then collided with Plaintiff's vehicle, pushing it into the car s to p p e d in front of him. 2 . Plaintiff's Medical Treatment T w o days after the collision, Plaintiff sought medical care. He went to both Primary C are Internists ("Primary Care") and Montgomery Neck & Back Pain Center ("Montgomery

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N & B " ), a chiropractic office. During his visit to Primary Care, Dr. Mukkamala stated that P la in tif f had previously undergone a cervical vertebra fusion and determined that Plaintiff s h o u ld not have any more surgery. At Montgomery N&B, Plaintiff saw Dr. Hogan, a c h iro p ra c to r and a personal friend. Plaintiff complained of back pain, neck pain and s tif f n es s, loss of balance, and pins and needles in his arms and legs. Though Plaintiff re p o rte d in a Montgomery N&B form that he had never had these problems or similar p ro b le m s before, he stated in the same form that he had seen another doctor previously for th e s e same conditions. Plaintiff further noted that he had undergone no surgery for these p ro b le m s . Dr. Hogan diagnosed Plaintiff with cervical disc displacement with associated c e r v ic a l spondylosis without myelopathy, complicated by brachial neuritis. I n the two weeks following the collision, Plaintiff sought regular treatment at M o n tg o m e ry N&B and paid another visit to Primary Care. At the end of his series of a p p o in tm e n ts at Montgomery N&B, Dr. Hogan wrote that Plaintiff responded well to trea tm en t, with increased range of motion and decreased pain. Dr. Hogan anticipated more p ro g re ss in the future, but added that Plaintiff may need additional care from "another d is c ip lin e ." D r. Hogan referred Plaintiff to Dr. Davis at Alabama Orthopaedic Specialists ("A laba m a Orthopaedic"). Plaintiff saw Dr. Davis three times in late August 2005. In a d d itio n to the diagnoses made by Dr. Hogan, Dr. Davis believed Plaintiff might have injured h is rotator cuff.

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F r o m September 2005 to August 2006, Plaintiff sought medical treatment once or tw ic e each month at some combination of Primary Care, Alabama Orthopaedic, or The C e n te r for Pain ("Pain Center"). Plaintiff responded "very well" to an injection of DepoM e d ro l in a September visit to Alabama Orthopaedic and was still doing well as a result of th a t injection three months later. In a report from Plaintiff's visit to Pain Center on December 8, 2005 it was stated that h e suffered from neck and shoulder pain "that has been present for several years." It was a ls o noted that Plaintiff had no previous spinal surgeries and was taking Coumadin, which p r e v e n te d him from being able to have surgery for his back pain. Plaintiff received his first c e rv ica l block injections and tolerated them well. However, Plaintiff continued to complain o f back and shoulder pain in doctor's visits through July 2006. 3 . Plaintiff's Insurance Policies A t the time of the collision, Plaintiff and his wife each had in effect separate a u to m o b ile insurance policies with Defendant that included underinsured motorist coverage o f $20,000. Plaintiff could "stack" those policies for a total of $40,000 in underinsured m o to ris t coverage. Additionally, Plaintiff had $5,000 in medical payments coverage under h is policy with State Farm. 4 . Defendant's Handling of Plaintiff's Claim B y August 6, 2005, Defendant had been notified of the collision. On that date Suzy O 'M a ra , a representative for Defendant, contacted Plaintiff to interview him and confirm the

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f a c ts of the collision. Other representatives noted that some of Plaintiff's pain and numbness m ig h t result from preexisting conditions. Defendant knew soon after the accident that fault w a s clear and probable with Hooks. GMAC, Hooks's insurer, accepted its insured's liability f o r the collision. Defendant also had no reason to believe that Plaintiff drove negligently or e x a g g e r a te d his injuries. W i t h i n the next month-and-a-half, Defendant paid Plaintiff $923.29 under his c o llis io n coverage for damage to the Suburban. Plaintiff paid the remaining $50 of damages a s his deductible. On September 19, 2005, Defendant received a letter from Joseph Stewart, P la in tif f 's attorney at the time, indicating that an underinsured motorist claim would be filed. A t that point, Alfred Williamson ("Williamson"), a claims representative for Defendant, took p rim a ry responsibility for Plaintiff's claim. Kirk Wascom ("Wascom"), a claim team m a n a g e r for Defendant, would oversee Williamson's work and periodically review the claim. W a sc o m had the authority to overrule Williamson's evaluation. Im m e d iate ly after taking the claim, Williamson placed $6,920 in "reserves." This am o u n t represented Williamson's contemporaneous estimate of the value of Plaintiff's u n d e rin s u re d motorist claim. He also contacted GMAC, Hooks's insurer, to receive

re im b u rs e m e n t for the payments expended to repair Plaintiff's Suburban. Daniel Lyles, a G M A C representative, informed Williamson that the liability limits on Hooks's policy were lo w , though he could not divulge the actual amount. This information provided Defendant w ith further reason to expect Plaintiff to eventually file an underinsured motorist claim.

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O n October 21, 2005, Williamson wrote a "Progress Report," noting that Plaintiff's u n d e rin s u re d motorist claim was still pending. Plaintiff stated that the collision aggravated a preexisting neck condition. Plaintiff also complained of neck, shoulder, and arm pain. W illiam so n reported that Plaintiff had only sent Defendant information about one doctor's a p p o in tm e n t, with Dr. Hogan, occurring thirteen days after the collision. He added that, b a se d on the impact involved in the collision and the medical information currently received, h e "would not expect there would be any [underinsured motorist] exposure at this time." O n December 26, 2005, Defendant received a series of medical reports from Plaintiff re f errin g to several visits to doctors made within two weeks following the collision. By mid2 0 0 6 , Defendant knew that GMAC's liability limits were $20,000 or $25,000. At this point, D e f en d a n t had paid Plaintiff less than $1,000 of his $5,000 in medical payments coverage. M a rc ia Woodham ("Woodham"), Plaintiff's new attorney, wrote Williamson in July 2 0 0 6 . Williamson responded with an acknowledgment letter requesting that Woodham send h im any of Plaintiff's medical bills which Plaintiff had not yet submitted. In October, W asc o m noted that Plaintiff's underinsured motorist claim remained pending. In November, W illia m s o n received bills and records from Woodham and responded by paying Plaintiff $ 4 ,1 3 5 in medical payments coverage, exhausting the limits of his policy. O n December 7, 2006, Williamson learned from GMAC that Plaintiff had yet to p re se n t it with a demand for payment under Hooks's policy with that carrier. Woodham did m a k e that demand with a letter dated January 30, 2007. Among other things, Woodham

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s ta te d that because Plaintiff took Coumadin for his blood clots, he could not have surgery for h is pain. Instead, Plaintiff had to receive cervical facet block injections every eight to ten w e e k s to treat it. Woodham added that his injuries forced lifestyle changes on Plaintiff--he c o u ld not dress himself or mow his lawn. This letter was part of Defendant's claim file. W illia m s o n stated that its information would not necessarily go into an evaluation of P lain tiff 's claim because the information came from Plaintiff's lawyer instead of a doctor. O n February 1, 2007, Woodham advised Defendant that GMAC had offered its policy lim its of $20,000 to settle with Plaintiff. Woodham told Defendant to expect an underinsured m o t o ris t claim. Defendant noted in its "Activity Logs" that Plaintiff's underinsured motorist c laim was still pending. Williamson reviewed Plaintiff's claim file to value Plaintiff's claim an d to determine what stance Defendant should take on a settlement offer. A f te r reviewing the claim file and learning that Plaintiff would receive $20,000 from G M A C , Williamson valued Plaintiff's claim at between $14,000 and $20,000. He admitted th a t this was only a range, and he could not say definitively that Plaintiff's claim was not w o rth more than $20,000. Williamson added that any underinsured motorist payments " w o u ld be made only as a compromise to avoid litigation." Wascom concurred with W illia m s o n 's evaluation. D e f e n d a n t made this determination based on several factors: 1 ) P la in tif f 's medical bills totaled $10,193.82. Wascom noted that Plaintiff had " c o lla te ra l sources" of payment for at least some of these charges, such as M e d ica re and the $5,000 of medical payments coverage from Defendant. 2 ) T h e low speed and minimal impact of the collision. Williamson did admit that 8

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P la in tif f 's injuries may have become more severe due to his Suburban colliding in to another vehicle after being hit from behind. However, Wascom could not re m e m b e r a single claim over his career with Defendant where serious injuries re su lte d from a low-impact collision. A t least some of Plaintiff's neck and shoulder pain predated the collision. N o vehicles involved in the collision were towed from the scene. Actually, H o o k s 's car was towed following the collision. Defendant responds that the p e rtin e n t fact is that neither Plaintiff's Suburban nor either vehicle that made c o n ta c t with the Suburban was towed. This showed the Suburban only had minor d a m a g e . It also demonstrated that Plaintiff was able to drive away from the scene. P la in tif f underwent a cervical fusion procedure prior to the collision. Though at le a st one medical record makes this claim, several others state that Plaintiff has u n d e rg o n e no spinal surgeries. Williamson could not recall whether he noticed th i s contradiction in Plaintiff's medical records. T h e number of days between the collision and the time Plaintiff sought medical tre a tm e n t. Initially, records received by Defendant indicated that Plaintiff waited th irtee n days after the collision before going to a doctor. However, prior to v a lu in g the claim, Defendant knew Plaintiff saw Drs. Mukkamala and Hogan only tw o days following the collision. Wascom stated in his deposition that two days w o u ld "[n]ot necessarily" be a factor in valuing the claim. Williamson added that a two-day wait would not necessarily devalue Plaintiff's claim. W illia m s o n ' s and Wascom's collective experience in evaluating claims.

W illiam so n and Wascom never interviewed Plaintiff, any witnesses to the accident, o r any of Plaintiff's doctors. Wascom stated that Williamson would made a "judgment call" i n determining whether to conduct interviews; Defendant did not require interviewing. W illiam so n said he did not interview Plaintiff because the facts of the accident were not in d is p u te and because Plaintiff was represented by counsel. Neither Williamson nor Wascom c o u ld remember conferring with Lynn LeBaron, Defendant's injury claims trainer, for aid in evaluating Plaintiff's claim. N e ith e r Williamson nor Wascom ever came to a specific conclusion as to the extent o f Plaintiff's physical pain, whether his injuries were permanent, the existence and extent of 9

e m o tio n a l damages, or whether Plaintiff became more susceptible to future injuries as a re su lt of injuries stemming from the collision. Neither representative ever placed a specific v a lu e on any of these factors, though both agreed these factors were considerations in e v a l u a tin g Plaintiff's claim. Neither representative used a formula in valuing the claim. In ste a d , both Williamson and Wascom said they viewed the claim in its entirety, coming to a valuation based on an aggregate consideration of factors. W illia m s o n and Wascom both looked to the medical information and facts of the co llisio n in valuing the claim. This helped them determine both the extent of the claimant's in ju rie s and what injuries were actually caused by the motor vehicle collision. Wascom a d d e d that he looked to whether the claimant is "legally entitled to collect," while W i l l i a m s o n stated that he also considered the value a jury would place on the claim. W illiam so n conceded that he considers venue when looking to a hypothetical jury's v a lu a tio n . T h o u g h medical records prior to the collision may have verified references to p re e x is tin g conditions in Plaintiff's post-collision medical records, Williamson did not a tte m p t to collect these records. He said he did not know of any disagreement with P la in tif f 's attorney over his valuation of the claim until suit was filed. Williamson said he w o u ld have sought more information on the claim if Plaintiff's attorney had questioned his v a lu a tio n . W illia m s o n contacted Woodham on April 9, 2007 to discuss Plaintiff's claim. Per her

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re q u e st, Defendant consented to Plaintiff's settlement with GMAC and waived its su b rog atio n rights. Williamson asked Woodham if Defendant had all the necessary

in f o rm a tio n to properly value Plaintiff's claim, and Woodham stated that it did. Williamson th e n informed Woodham that, based on what Defendant had received from Plaintiff, it was D e f e n d a n t's position that Plaintiff would be adequately compensated by the settlement with G M A C , meaning Defendant owed no payments under Plaintiff's underinsured motorist c o v e ra g e . B . Procedural History O n July 30, 2007, Plaintiff filed this lawsuit against Defendant in the Circuit Court o f Montgomery County (Doc. #1). Defendant promptly removed the case to this Court, in v o k in g its diversity jurisdiction. Id. Plaintiff did not seek remand. Plaintiff brings claims f o r breach of contract and bad faith in failing to pay benefits on an underinsured motorist c laim Plaintiff filed (Doc. #1). Plaintiff seeks compensatory and punitive damages, interest, a n d costs for injuries allegedly suffered. Contemporaneous to notice of removal, Defendant m o v e d to dismiss Plaintiff's claims (Doc. #2). The Court denied that motion in a

M em o ran d u m Opinion and Order issued on February 9, 2008 (Doc. #10). V . DISCUSSION A la b a m a law requires that insurers provide underinsured motorist coverage, for the p u rp o se of protecting the insured when a tortfeasor has insufficient liability coverage to fully c o m p e n sa te him. Ala. Code § 32-7-23 (1975); see State Farm Mut. Auto. Ins. Co. v.

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B a ld w in , 764 F.2d 773, 777 (11th Cir. 1985). Plaintiff alleges that Defendant breached its c o n tra c t for underinsured motorist coverage while committing both normal and abnormal bad f a ith failure to pay. Defendant contends that it is entitled to summary judgment as a matter o f law on all of Plaintiff's claims because Plaintiff has failed to prove that his damages were c a u se d by the collision or the extent of the damages caused by the collision. Therefore, he c a n n o t prove he is legally entitled to damages and, as a matter of law, Plaintiff cannot have c la im s for breach of contract or bad faith failure to pay damages. A . Breach of Contract and Bad Faith Failure to Pay A n insurer does not breach an underinsured motorist contract or commit bad faith u n le ss and until the insured proves that he is "legally entitled to recover." Ala. Code § 32-72 3 (a )1 ; Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 564 (Ala. 2005); see B a ld w in , 764 F.2d at 778; Quick v. State Farm Mut. Auto. Ins. Co., 429 So. 2d 1033, 1035 (A la. 1983). To prove legal entitlement to recover, the insured must be able to establish fault o n the part of the underinsured motorist, resulting damages to which he is entitled, and the e x te n t of those damages. Pontius, 915 So. 2d at 564; see Baldwin, 764 F.2d at 778­79; L e F e v r e v. Westberry, 590 So. 2d 154, 162 (Ala. 1991). In other words, in the context of u n d e rin s u re d motorist coverage, there is no cause of action for either breach of contract or

The underinsured motorist provisions in both of Plaintiff's insurance policies with Defendant track this statutory language. 12

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b a d faith when there is a legitimate dispute as to the underinsured carrier's liability. 2 See P o n tiu s , 915 So. 2d at 564. In State Farm Mutual Automobile Insurance Company v. Smith, the Alabama Court o f Civil Appeals ordered the trial court to enter judgment as a matter of law in favor of the in s u re r on the insured's bad faith claim because of a legitimate dispute as to causation and th e extent of the insured's damages. 956 So. 2d 1164, 1170 (Ala. Civ. App. 2006). Smith d id not go to the emergency room following a motor vehicle collision. Id. at 1165. Instead, h e saw his family doctor four days after the collision. Id. After two months of

" c o n se rv a tiv e " treatment, doctors noted an increase in range of motion, strength, and g e n e ra liz e d function, as well as a decrease in complaints of pain. Id. Four months later, a d if f e re n t doctor determined that Smith's injuries required surgery. Id. at 1166. The fact that th e insurer did not dispute the occurrence of the accident or that the insured suffered injuries a n d aggravated preexisting injuries did not mean the insured was owed underinsured motorist b e n e f its . Id. at 1167. Because the insurer could reasonably question whether the insured's n e e d for surgery was caused by the motor vehicle collision, the insurer was entitled to ju d g m e n t as a matter of law. Id. at 1170­71. S im ila rly, there is a legitimate dispute as to whether the collision in this case caused all of Plaintiff's claimed injuries. The extent of Plaintiff's preexisting conditions is unclear. It is also unclear whether Plaintiff ever underwent a spinal surgery prior to the collision. A breach of the insurance contract is a necessary element of both "normal" and "abnormal" bad faith. Mut. Serv. Cas. Ins. Co. v. Henderson, 368 F.3d 1309, 1314, 1315 (11th Cir. 2004). 13
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H o w e v e r, Plaintiff's doctors did make statements in the medical records that at least some o f Plaintiff's pain in his shoulders, neck, and back existed prior to the collision. A d d itio n a lly, Plaintiff was able to drive away from the collision, indicating that his injuries m ig h t not be that serious. Therefore, Defendant could reasonably wonder what injuries and h o w much of Plaintiff's pain stemmed from the collision on August 2, 2005. T h ere is also a legitimate dispute as to the extent of Plaintiff's damages. Plaintiff's m e d ic a l bills totaled slightly more than $10,000, and at least $5,000 of that total was already p a id for by collateral sources. Several medical reports indicated that Plaintiff responded well to treatment and that his complaints of pain lessened over time. Defendant could reasonably d o u b t that Plaintiff's future medical bills as a result of the collision would be that costly. P a rts of the record indicate that Defendant may not have been above reproach in e v a lu a tin g Plaintiff's claim. Plaintiff sought medical treatment early and often following the c o llis io n , indicating that new injuries resulted from that collision. Plaintiff will likely have to receive periodic facet block injections for the rest of his life to deal with his pain, a c o n tin u in g cost. Additionally, the fact that the upper limit of Defendant's valuation of P lain tiff 's claim equals what Defendant knew Plaintiff would receive from GMAC certainly r a is e s eyebrows. However, the record demonstrates a legitimate dispute as to whether the v a lu e of Plaintiff's claim is high enough to make Plaintiff "legally entitled to damages." T h o u g h Hooks' fault in the collision is clear and probable, Plaintiff has no cause of action f o r breach of contract or bad faith failure to pay until the extent of his damages caused by

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t h a t collision are fixed. Pontius, 915 So. 2d at 564; see Baldwin, 764 F.2d at 778­79; L e F e v r e , 590 So. 2d at 162. Therefore, as a matter of law, Plaintiff's claims of breach of c o n tra c t and bad faith cannot be raised at this point.3 B . Abnormal Bad Faith A b n o rm a l bad faith represents the second type of bad faith under Alabama law. Mut. S e rv . Cas. Ins. Co. v. Henderson, 368 F.3d 1309, 1314 (11th Cir. 2004). In order to recover f o r abnormal bad faith, the insured must show that (1) the insurer failed to properly i n v e s tig a te the claim or to subject the results of the investigation to a cognitive evaluation a n d review; and (2) the insurer breached the insurance contract when it refused to pay the in s u re d 's claim. Id. at 1315. In Henderson, the Eleventh Circuit reversed summary judgment in favor of the insurer o n the insured's abnormal bad faith claim. Henderson, 368 F.3d at 1319­20. The Court sta ted that if there was an issue of material fact about whether the insurer properly in v e stig a te d the insured's claim before the denial of coverage, a summary judgment ruling o n the abnormal bad faith claim would be erroneous. Id. This is because, unlike in normal

The Alabama Supreme Court has given general rules for situations where an insured and his underinsured carrier come into conflict. Lambert v. State Farm Mut. Auto. Ins. Co., 576 So. 2d 160, 167 (Ala. 1991). Plaintiff and Defendant in this case have correctly followed these procedures in Plaintiff's settlement with GMAC. See id. Once Defendant waived its subrogation rights and Plaintiff released Hooks and GMAC from liability for the motor vehicle collision, the only party that could be found liable is Defendant. Regrettably, Plaintiff has chosen not to sue Defendant directly for any damages resulting from the motor vehicle collision. Plaintiff instead has asserted only claims for breach of contract and bad faith. As a matter of law, Plaintiff cannot assert these claims because Plaintiff's damages are not fixed. 15

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b a d faith claims, "providing an arguable reason for denying an `abnormal' bad faith claim d o e s not defeat that claim." Id. at 1315. T h e Henderson Court found issues of material fact about the adequacy of the insurer's in v e stig a tio n , including, among other things, a failure to "marshal all of the pertinent facts w ith regards to its insured's claim" prior to denial of coverage. Id. (quoting Nat'l Ins. Ass'n v . Sockwell, 829 So. 2d 111, 130 (Ala. 2002)). In Henderson, the insurer's representative f a ile d to contact the insured to inquire about their claims. Id. at 1318. Similarly, Williamson n e v e r interviewed Plaintiff on his underinsured motorist claim.4 Williamson also failed to g a th e r medical records from prior to the collision, which might indicate what injuries and p a in were caused by the collision. See id. Therefore, an issue of material fact might exist a s to the first element of abnormal bad faith.5 H o w e v e r, even if Plaintiff could survive summary judgment on the first element of a b n o rm a l bad faith, the claim also requires a breach of the insurance contract. Id. at 1315; F e d e ra te d Mut. Ins. Co., Inc. v. Vaughn, 961 So. 2d 816, 820 (Ala. 2007) ("To recover for

Though Suzy O'Mara did interview Plaintiff just after Defendant learned of the collision, Williamson did not, and Williamson had primary responsibility for the claim. This is far from definite. The Henderson Court found that there was no issue of material fact as to a failure to properly investigate when the insured's representative reviewed all information in the claim file prior to denying the claim. Henderson, 368 F.3d at 1318. Importantly, the insured had no duty to interview the claimant when the claimant's version of the facts was contained in the claim file. Id. Williamson would know Plaintiff's version of the facts by reviewing O'Mara's summary of her interview with Plaintiff and through correspondence from Plaintiff's attorney. See also Smith, 956 So. 2d at 1168­69 (holding that the insurer was entitled to judgment as a matter of law on an abnormal faith claim because the evidence showed the insurer evaluated the insured's claims by considering his medical records). 16
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b a d -f a ith failure to investigate an insurance claim, the insured must show that the insurer b re a ch e d the insurance contract when it refused to pay the insured's claim."). In Henderson, th is element of the abnormal bad faith claim was not disputed. 368 F.3d at 1315. In this c a se , however, Defendant has demonstrated as a matter of law that it did not breach its c o n tra c t. Thus, Defendant has also established that it is entitled to summary judgment on P la in tif f 's abnormal bad faith claim because it has shown that Plaintiff cannot offer evidence in support of an element of a prima facie case for abnormal bad faith. V I. CONCLUSION For the reasons set forth in this Memorandum Opinion and Order, Defendant's Motion f o r Summary Judgment (Doc. # 28) is GRANTED. The Court will enter a separate final jud g m en t in favor of Defendants consistent with this Memorandum Opinion and Order. D O N E this the 15th day of October, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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