Wood v. Provident Life and Accident Insurance Company

Filing 83

ORDER denying 80 Motion for Reconsideration. Signed by Judge David G Campbell on 6/26/2018.(DGC, nvo)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Scott Wood,
Plaintiff,

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ORDER

v.

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No. CV-17-02330-PHX-DGC

Provident Life and Accident Insurance
Company,

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Defendant.

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Defendant Provident Life and Accident Insurance Company has moved for

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reconsideration of the Court’s order granting partial summary judgment to Plaintiff

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Thomas Wood. Doc. 80. A motion for reconsideration will be denied “absent a showing

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of manifest error or a showing of new facts or legal authority that could not have been

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brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv 7.2(g)(1);

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see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).

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The Court’s order concluded that an accidental bodily injury (the “lifting

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maneuver”) caused Plaintiff’s disability for purposes of the parties’ insurance contract

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(the “Policy”). Doc. 77 at 10-16. Defendant makes four arguments.

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Defendant first contends that the Court’s finding of causation “assume[d] that

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Defendant’s position was based solely upon the absence of new lesions.” Doc. 80 at 4.

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This mischaracterizes the Court’s decision. The Court evaluated that particular argument

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when considering whether the lifting maneuver constituted a bodily injury. Doc. 77

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at 11. The absence of new lesions played no role in the Court’s finding on causation. Id.

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at 14-16.

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Defendant next contends that the Court overlooked the opinions of Drs. Beavers,

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Prince, and Obray that Plaintiff’s degenerative disc disease caused his disability, and the

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lifting maneuver merely exacerbated that condition. Doc. 80 at 6.1 The Court clearly

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considered and rejected this argument:

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The Policy contemplates an award of benefits where injury and
sickness combine to cause a disability:

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The fact that a disability is caused by more than one Injury or
Sickness or from both will not matter. We will pay benefits
for the disability which provides the greater benefit.

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Doc. 47-2 at 12. Thus, the Policy does not limit benefits to disabilities
caused solely and independently by injuries. Id.

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Defendant contends that Plaintiff’s degenerative disc disease caused
his disability, and that the lifting maneuver only exacerbated the preexisting
condition. See Doc. 46 at 14-15. The record may support a finding that the
lifting maneuver combined with Plaintiff’s degenerative disc disease to
cause his disability, but the Policy’s language makes this point
inconsequential. Even if the disease contributed to Plaintiff’s disability, the
issue the Court must resolve is whether the lifting maneuver was a cause of
Plaintiff’s disability.

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Doc. 77 at 14-15. After reviewing relevant Arizona case law, the Court concluded:

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Even if the Court accepts Defendant’s characterization of the lifting
maneuver as an exacerbation of Plaintiff’s degenerative disc disease, the
maneuver was a contributing cause of Plaintiff’s disability. . . . The Court
concludes that the lifting maneuver was a cause of Plaintiff’s disability
when, with his degenerative disc disease, it resulted in a disabling
condition.

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Id. at 16.

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Defendant offers no specific citations, but appears to rely on opinions described
in its statement of facts in support of its motion for summary judgment. Doc. 47
¶¶ 69, 74, 77, 79.
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Defendant neither challenges this interpretation of the Policy nor cites evidence

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that the lifting maneuver was not an exacerbation.

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characterized the lifting maneuver as an exacerbation. E.g., Doc. 46 at 14-15. As the

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Court explained, “the undisputed facts demonstrate that Plaintiff’s degenerative disc

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disease was not disabling before the lifting maneuver,” and “the record is devoid of any

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indication that Plaintiff would have become disabled in August 2015 had it not been for

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the lifting maneuver.” Doc. 77 at 16. Defendant’s motion does not show that these

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conclusions were based on manifest error.

Indeed, Defendant repeatedly

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Defendant also suggests that the Court overlooked Dr. Sternbergh’s opinion

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(Doc. 80 at 6), a “summary of [which] was included in the parties’ summary judgment

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briefing” (id. at 5 n.5). But Defendant cites Plaintiff’s summary judgment briefing, and

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the cited record makes no mention of Dr. Sternbergh. See Doc. 52-3 at 3. The Court

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cannot see how this amounts to overlooking Defendant’s evidence.

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Defendant relies on Dr. Sternbergh’s opinion for the proposition that the degenerative

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disc disease caused his disability, and the lifting maneuver merely exacerbated that

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condition. See Doc. 80 at 6. That argument is unavailing for reasons stated above.

In any event,

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Defendant finally argues that the Court cannot conclude that an accidental bodily

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injury continues to cause Plaintiff’s disability. Doc. 80 at 3. Without citation to any

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Policy provisions, Defendant contends that the Policy contemplates a monthly

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reassessment of the cause of Plaintiff’s ongoing disability. Doc. 80 at 1-2. Defendant

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made the following assertion in its motion for summary judgment:

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There is no evidence that the lifting event . . . had any lasting effect on
Plaintiff beyond a temporary exacerbation of Plaintiff’s already existing
conditions. After this temporary exacerbation resolved, only Plaintiff’s
preexisting conditions remained.

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Doc. 46 at 15. This vague and conclusory statement was insufficient to raise the specific
issue of contract interpretation Defendant now raises. Defendant never argued that the
Court’s conclusion must be limited to the first month of Plaintiff’s disability. The Court

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declines to address this separate issue that could “have been brought to its attention

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earlier with reasonable diligence.” LRCiv 7.2(g)(1).2

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IT IS ORDERED that Defendant’s motion for reconsideration (Doc. 80) is
denied.
Dated this 26th day of June, 2018.

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Defendant makes this assertion in its motion: “It appears that the Court’s ruling
is that [the lifting maneuver] continues to be an ongoing cause as well.” Doc. 80 at 3.
The Court’s previous order, however, did not specifically address this issue, and the
Court does not foreclose Defendant from raising it in the future. Plaintiff, of course, will
be free to oppose Defendant’s arguments.
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