Coleman v. Unum Group Corporation

Filing 118

ORDER denying 113 Motion for Reconsideration of District Judge Order. Signed by Chief Judge William H. Steele on 9/28/2016. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
P. MICHAEL COLEMAN,
Plaintiff,
v.
UNUM GROUP CORPORATION,
Defendant.

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) CIVIL ACTION 15-0367-WS-M
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ORDER

This matter is before the Court on the plaintiff’s motion to reconsider.
(Doc. 113). The plaintiff seeks reconsideration of the Court’s recent order
granting the defendant’s motion for partial summary judgment as to the plaintiff’s
claim for bad faith in cutting off the plaintiff’s “own occupation” disability
benefits in December 2014. (Doc. 110). The plaintiff asks the Court to vacate that
order and to enter a new order denying the defendant’s motion. (Doc. 113 at 7).
The grant or denial of a motion to reconsider is left to the discretion of the
trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (en
banc). Such a motion may not be used as a vehicle to inject new arguments into
the underlying motion, or to submit evidence previously available but not properly
presented on the underlying motion. Mays v. United States Postal Service, 122
F.3d 43, 46 (11th Cir. 1997). Nor may it be used to “relitigate old matters.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (internal
quotes omitted). Instead, “[a] motion to reconsider is only available when a party
presents the court with evidence of an intervening change in controlling law, the
availability of new evidence, or the need to correct clear error or manifest
injustice.” Gibson v. Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007)

(internal quotes omitted).1 As this Court has noted, “[m]otions to reconsider serve
a valuable but limited function. They do not exist to permit losing parties to prop
up arguments previously made or to inject new ones, nor to provide evidence or
authority previously omitted. They do not, in short, serve to relieve a party of the
consequences of its original, limited presentation.” Dyas v. City of Fairhope, 2009
WL 5062367 at *3 (S.D. Ala. 2009). The plaintiff, cognizant of these limitations,
asserts that the Court committed a “clear error of law which will result in a
substantial injustice” to him. (Doc. 113 at 1).
The Court, relying on State Farm Fire and Casualty Co. v. Brechbill, 144
So. 3d 248 (Ala. 2013), ruled that a plaintiff pursuing either a “normal” or an
“abnormal” claim of bad faith (the plaintiff asserted both) must prove that the
insurer lacked a debatable reason for denying the claim. (Doc. 110 at 4). Relying
on Brechbill (and on the plaintiff’s insistence), the Court further ruled that whether
the insurer had such a debatable reason must be measured by the information
before the insurer at the time it denied the claim. (Id. at 4, 6). The debatable
reason articulated by the defendant was that the plaintiff was able to perform the
duties of his occupation and thus was not disabled under the policy definition. (Id.
at 5). Because the plaintiff maintains he was disabled by symptoms arising from
dysautonomia, the Court phrased the issue as whether, based on the information
the defendant possessed in December 2014, it was debatable whether those
symptoms rendered him unable to perform one or more of the duties of his
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While Mays and Wilchombe involved post-judgment motions under Rule 59(e),
courts within this Circuit have often applied these principles to pre-judgment motions to
reconsider. E.g., Busby v. JRHBW Realty, Inc., 2009 WL 1181902 at *2 (N.D. Ala.
2009); Controlled Semiconductor, Inc. v. Control Systemation, Inc., 2008 WL 4459085 at
*2 (M.D. Fla. 2008); Eslava v. Gulf Telephone Co., 2007 WL 1958863 at *1 (S.D. Ala.
2007); Summit Medical Center, Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala.
2003). This is only sensible, since allowing parties to withhold arguments and evidence
until after losing is equally destructive of judicial economy and fairness in either context.
E.g., Gibson, 511 F. Supp. 2d at 1185 (even pre-judgment, “in the interests of finality and
conservation of scarce judicial resources, reconsideration of an order is an extraordinary
remedy that is employed sparingly”).

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occupation. (Id. at 9). After reviewing the parties’ evidence, the Court concluded
that, in December 2014, “it was far from clear that the symptoms [the plaintiff]
reported were of such a character, severity, frequency and duration as to render
him unable to perform the duties of his occupation.” (Id. at 14). Because the
defendant thus had a debatable reason for terminating benefits, the plaintiff could
not establish the third element of his claim, and the defendant thus was entitled to
summary judgment as to the bad faith claim, both the normal and abnormal
varieties. (Id. at 14-15).
The plaintiff asserts a number of legal errors in the Court’s analysis. First,
he states that the law “recognizes that an insurer’s nonpayment, even if facially
plausible, may be an artifice, which is the same thing as the absence of an arguable
reason.” (Doc. 113 at 2). That is, liability for abnormal bad faith will lie when the
defendant “offer[s] a plausible-sounding reason for denying a claim that, on its
face, seems rational and reasonable [but] is seen to be knowingly based on a
flawed investigation.” (Id. at 3). In this case, the defendant “lacked enough
information to terminate [the plaintiff’s] claim,” and “[u]ncertainty is not a
‘debatable’ reason for denying benefits.” (Id. at 6).
Second, the plaintiff argues that the Court erred by “deciding, on the merits,
that a ‘debatable reason’ was shown.” (Doc. 113 at 3). By doing so, the plaintiff
says, the Court “substitute[d] its own opinion on the merits” and “eliminated the
jury’s role of deciding the ultimate issue – whether [the defendant] performed a
good faith investigation and review to assemble all the evidence in [the plaintiff’s]
favor and make a rational decision to terminate his claim that was in accordance
with all the applicable ‘fair claims’ standards.” (Id. at 4).
Third, the plaintiff asserts that the Court “disregarded fact disputes” by
“adopt[ing]” the defendant’s version and “even supplied its own rationale to
support [the defendant’s] decision” by “going outside the record.” (Doc. 113 at 4,
5). Finally, the plaintiff suggests that the Court improperly focused on the

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plaintiff’s asserted condition (dysautonomia) rather than on his symptoms. (Id. at
6).
The plaintiff’s first argument remains obscure. To the extent he is
suggesting that the existence of a debatable reason is not fatal to a claim of
abnormal bad faith, his argument runs counter to Brechbill.2 The Court has
explained why Brechbill, as the Alabama Supreme Court’s most recent
pronouncement, controls over any contrary prior authority, (Doc. 110 at 5), and
the plaintiff has not drawn that analysis into question.
To the extent the plaintiff is suggesting that the existence of a debatable
reason is fatal to a claim of abnormal bad faith but that the absence of a debatable
reason can be inferred from a flawed investigation, he again confronts Brechbill.
As the Court noted in its previous order, (Doc. 110 at 4), “Alabama law is clear:
… regardless of the imperfections of [the insurer’s] investigation, the existence of
a debatable reason for denying the claim at the time the claim was denied defeats a
bad faith failure to pay the claim.” 144 So. 3d at 259 (emphasis and internal
quotes omitted).
The plaintiff, (Doc. 113 at 2), points to a post-Brechbill decision from the
Eleventh Circuit as confirming that “[e]vidence of the defendant’s intentional
failure to determine whether a lawful basis existed may be used as proof that no
such basis, in fact, existed.” Atlantic Specialty Insurance Co. v. Mr. Charlie
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“Regardless of whether the claim is a bad-faith refusal to pay or a bad-faith
refusal to investigate, the tort of bad faith requires proof of the third element, absence of
legitimate reason for denial ….” 144 So. 3d at 258. “A bad-faith-failure to-investigate
claim cannot survive where the trial court has expressly found as a matter of law that the
insurer had a reasonably legitimate or arguable reason for refusing to pay the claim at the
time the claim was denied.” Id. at 260. “The existence of an insurer’s lawful basis for
denying a claim is a sufficient condition for defeating a claim that relies upon the fifth
element of the insurer’s intentional or reckless failure to investigate.” Id. at 258
(emphasis in original). Thus, “[b]ecause the trial court’s ruling eliminated the third
element of bad-faith refusal to pay, [the plaintiff’s] claim relying on the fifth element,
i.e., that [the insurer] intentionally failed to adequately investigate the claim, must fail.”
Id. at 258 (internal quotes omitted).

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Adventures, LLC, 644 Fed. Appx. 922, 926 (11th Cir. 2016). This argument comes
too late to be considered,3 but it would not alter the Court’s ruling in any event.
The Mr. Charlie panel relied on a 1984 Alabama Supreme Court decision, and it
did not attempt to reconcile this statement with the new precedent of Brechbill.
As the Court noted in its previous order, (Doc. 110 at 5), the Eleventh Circuit has
signaled that the federal courts should follow the most recent Alabama Supreme
Court pronouncement. See Mutual Service Casualty Insurance Co v. Henderson,
368 F.3d 1309, 1315 n.2 (11th Cir. 2004). That precedent is now represented by
Brechbill. “Unpublished opinions are not controlling authority and are persuasive
only insofar as their legal analysis warrants.” Bonilla v. Baker Concrete
Construction, Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007). For the reasons
stated, the Court does not find Mr. Charlie persuasive.
The plaintiff complains that Brechbill is bad “policy” and that, “if ‘bad
faith investigation’ were not a way to prove the absence of a debatable reason,
then it would be superfluous.” (Doc. 113 at 3). The plaintiff raised no such
argument in his opposition brief, but in any event questions of policy and logical
consistency are for the Alabama Supreme Court, not this tribunal.
The plaintiff’s objection that the defendant “lacked enough information to
terminate” benefits assumes that a flawed investigation will support a bad faith
claim even though the defendant possesses a debatable reason for its decision. As
discussed above, Brechbill is directly contrary and, as the Alabama Supreme
Court’s most recent pronouncement, it controls.

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While the plaintiff did cite Mr. Charlie in his opposition brief, he offered only a
“see” signal, with neither an explanatory parenthetical nor even a pinpoint cite. (Doc.
102 at 27). And the case the plaintiff quoted before its “see” citation was quoted only for
the proposition that evidence of the fifth element can be used to infer the fourth element –
not the third. (Id.). The plaintiff’s current argument thus was not fairly presented to the
Court. Cf. Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 1057, 1-61
(11th Cir. 2011) (“[A]ppellate judges are not like pigs, hunting for truffles buried in briefs
….”) (internal quotes omitted). It therefore cannot form the basis of a successful motion
to reconsider.
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Nor was the defendant’s investigation as flawed as the plaintiff supposes.
The defendant initially paid benefits, based on medical restrictions on the
plaintiff’s ability to stand, sit, bend and lift – restrictions the defendant found
incompatible with performance of the plaintiff’s frequent travel duties. Once
those medical restrictions were lifted by his neurosurgeon, they could no longer
justify payment of benefits. The plaintiff argues his symptoms of dysautonomia
thereafter rendered him unable to perform the duties of his occupation, but the
defendant collected medical records from all four doctors the plaintiff identified,
which were inconclusive. The defendant asked each physician to describe what
the plaintiff cannot do or should not do; one responded “none,” two returned the
form without responding, and the fourth did not return the form. The plaintiff
argues the defendant should not have believed the responding doctor and should
have demanded the others to give a straight answer, but he cites no authority for
the odd proposition that an insurer has a legal duty to disbelieve a physician’s
assessment, to assume that a doctor’s failure to identify restrictions means that
restrictions really exist, or to force the insured’s health care providers to identify
restrictions and to pay its insured so long as they fail to do so.
In Brechbill, the defendant did not consider evidence that the insured’s
residence was undamaged before a windstorm struck it and did not speak to
anyone who had knowledge of the house’s condition before the windstorm. 144
So. 3d at 259. Here, the defendant sought information from the plaintiff’s health
care providers and considered everything they submitted. The defendant thus did
more than did the defendant in Brechbill. Since the flaws in that investigation did
not preclude a defense judgment, neither could the asserted flaws in the instant
case do so.
Finally, to the extent the plaintiff suggests that “uncertainty is not a
debatable reason,” he is mistaken. As the Court previously noted, (Doc. 110 at 6),
a debatable reason “means an arguable reason, one that is open to dispute or
question.” Ex parte Simmons, 791 So. 2d 371, 377 (Ala. 2000) (internal quotes
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omitted). Uncertainty is the warp and woof of a debatable reason, not its
antithesis. E.g., Morton v. Allstate Insurance Co., 486 So. 2d 1263, 1271 (Ala.
1986) (“[T]he evidence shows that [the insurer] had a debatable reason for
delaying payment of [the] claim, namely, uncertainty as to the amount of [its]
liability.”); Tyson v. Safeco Insurance Companies, 461 So. 2d 1308, 1311-12 (Ala.
1984) (insurer “was faced with a situation of sufficient uncertainty to supply it
with a debatable reason to act in the manner it did”).
The plaintiff’s second argument likewise depends on either writing the third
element out of the abnormal case altogether or making that element dependent on
the quality of the defendant’s investigation. According to the plaintiff, the
“ultimate issue” on which the Court encroached is whether the defendant
“performed a good faith investigation and review to assemble all the evidence in
[the plaintiff’s] favor” and then “ma[d]e a rational decision to terminate his claim
that was in accordance with all the applicable ‘fair claims’ standards.” (Doc. 113
at 4). Because, under Brechbill, that is not the issue, the Court could not have
trenched upon it.
To the uncertain extent the plaintiff suggests that a court is forbidden to
determine on motion for summary judgment that the defendant possessed a
debatable reason for denying coverage, he is again mistaken. E.g., McGuire v.
State Farm Mutual Automobile Insurance Co., 582 So. 2d 1077, 1080 (Ala. 1991);
Aplin v. American Security Insurance Co., 568 So. 2d 757, 760 (Ala. 1990). The
same holds true for the abnormal form of bad faith. Brechbill, 144 So. 3d at 259
(quoting Pyun v. Paul Revere Life Insurance Co., 768 F. Supp. 2d 1157 (N.D. Ala.
2011)). The uncontroverted facts regarding the information before the defendant
in December 2014 established as a matter of law that the defendant possessed a
debatable reason for terminating benefits. That the defendant may not have
possessed all the information it could have possessed, or that it may not have
weighed the information it did have most favorably to the plaintiff, or that the
evidence could have supported a continuation of benefits, is beside the point:
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“[W[hen a claim is fairly debatable, the insurer is entitled to debate it ….”
National Insurance Association v. Sockwell, 829 So. 2d 111, 126 (Ala. 2002)
(internal quotes omitted).
As to the plaintiff’s third objection, the Court neither “adopted” the
defendant’s version of disputed facts nor “supplied its own rationale” by “going
outside the record.” The Court will not dignify this assertion with extended
comment, because its earlier order makes the falsity of these assertions
transparent. Pointing out the weakness of the plaintiff’s evidence that the
defendant saw a July 2014 progress note but concluding that “it does not matter”
whether the defendant saw it, (Doc. 110 at 10-11), is not disregarding a factual
dispute by resolving it in favor of the defendant – it is noting the immateriality of
the dispute. And pointing out that what prevents an airline pilot from performing
her duties may not prevent a CEO/consultant from performing his, (id. at 13), is
neither going outside the record nor supplying a rationale – it is stating the
obvious.
Finally, the Court did not confuse the plaintiff’s condition with the
symptoms of that condition. As the Court’s order makes clear at multiple points,
(Doc. 110 at 9, 11-13) what matters for disability purposes is not the condition but
the resulting symptoms, and the Court found the existence of a debatable reason
because, from the evidence before the defendant in December 2014, “it was far
from clear that the symptoms [the plaintiff] reported were of such a character,
severity, frequency and duration as to render [the plaintiff] unable to perform the
duties of his occupation.” (Id. at 14 (emphasis added)).
For the reasons set forth above, the plaintiff’s motion to reconsider is
denied.
DONE and ORDERED this 28th day of September, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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