Worman v. Allstate Indemnity Company

Filing 80

ORDER denying 44 Motion for Partial Summary Judgment and denying 52 Motion for Default Judgment. Signed by Honorable P. K. Holmes, III on November 6, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
AMANDA M. WORMAN
v.

PLAINTIFF
Case No. 3:11-CV-03033

ALLSTATE INDEMNITY COMPANY

DEFENDANT
ORDER

Currently before the Court are Plaintiff Amanda Worman’s Motion for Partial Summary
Judgment (Doc. 44) and supporting documents; Defendant Allstate Indemnity Company’s
(“Allstate”) Response in Opposition (Doc. 54) and supporting documents; and Plaintiff’s Reply
(Doc. 57). Also before the Court are Plaintiff’s Motion for Default Judgment (Doc. 52) and
supporting documents, and Allstate’s Response in Opposition (Doc. 59). For the reasons stated
herein, Plaintiff’s Motions for Partial Summary Judgment (Doc. 44) and Default Judgment (Doc. 52)
are DENIED.
I. Background
This case arises from a motor vehicle collision in which Plaintiff allegedly suffered injuries
and damages caused by a negligent and underinsured motorist named Deborah Lever. Ms. Lever had
an automobile insurance policy with bodily injury limits of $25,000 per person. According to the
Complaint, Plaintiff’s injuries and damages exceeded Ms. Lever’s primary policy limits, which
activated the underinsured motorist provision of Plaintiff’s own auto insurance policy with Allstate.
After Plaintiff settled her claim against Ms. Lever’s insurance company for the policy limits,
Plaintiff made a claim against Allstate for underinsured motorist policy benefits. Allstate denied her
claim. Plaintiff now contends that Allstate refused to pay without conducting a reasonable
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investigation to confirm the validity and objectivity of the medical evidence of Plaintiff’s injuries.
Plaintiff further contends that Allstate failed to provide any information as to why it chose to
disregard objective medical evidence in denying Plaintiff’s claim. Plaintiff demands relief in the
form of a judgment against Allstate for underinsured motorist insurance policy limits in the amount
of $25,000; attorney’s fees, interest, and a twelve percent (12%) statutory penalty for breach of
contract; and both compensatory and punitive damages for Allstate’s alleged bad faith in handling
Plaintiff’s claim.
II. Motion for Partial Summary Judgment (Doc. 44)
For purposes of summary judgment, the Court views the facts in a light most favorable to the
non-movant, which in this case is Allstate. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)). The non-movant must
be given the benefit of any inferences that logically can be drawn from those facts. Id.
Plaintiff’s Motion for Partial Summary Judgment is limited to a request for dismissal of
Allstate’s affirmative defense of intervening cause. This affirmative defense, which was asserted
in Allstate’s Supplemental Answer to Plaintiff’s Complaint (Doc. 15) is as follows:
Defendant affirmatively states that following any act or omission on the part of Ms.
Lever, the underinsured motorist, events intervened that in themselves caused
damage completely independent of her conduct. This includes, but is not limited to,
subsequent medical treatment by certain chiropractors, prescription of medication by
doctors along with other matters independent and separate from normal treatment for
her alleged injuries.
Plaintiff maintains that Allstate has no evidence that any physician actually harmed Plaintiff
by providing care, including chiropractic care, or by prescribing Plaintiff certain medications. Nor
does Allstate possess evidence, according to Plaintiff, that Plaintiff failed to use reasonable care in

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selecting medical care providers. For these reasons, Plaintiff seeks a judgment in her favor on
Allstate’s affirmative defense of intervening cause, as well as an order prohibiting Allstate from
blaming a “phantom cause” for Plaintiff’s injuries or from alleging that Plaintiff received inadequate
care that caused independent harm subsequent to the car accident at issue. (Doc. 44, p. 2).
Allstate in its Response maintains that it should not be precluded from arguing at trial that
an intervening cause contributed to Plaintiff’s damages. Although Allstate fails to point to a specific
intervening cause and instead argues that Plaintiff either was not seriously injured in the car accident
at issue or, in the alternative, did not suffer injury and money damages to the extent claimed in this
lawsuit, the Court concludes that summary judgment on this defense is inappropriate at this time for
two reasons. First, although no specific intervening cause has been identified, Allstate has asserted
generally that, after Plaintiff’s car accident in 2005, Plaintiff underwent physical therapy for back
pain in late 2006, was discharged after improvement to her condition, and then began physical
therapy again some five years later in 2011. Allstate contends that this separation of several years
between physical therapy treatments creates a factual issue for the jury regarding whether an
intervening event provoked the later round of treatment. (Doc. 55, p. 14). Second, the facts in this
case are still being developed. Discovery deadlines have been recently extended. See Third
Amended Final Scheduling Order, filed October 18, 2012 (Doc. 69), and Text Only Order Granting
Joint Motion to Enlarge Time to Complete Discovery, filed November 1, 2012. Accordingly, when
proof of an intervening cause may still be uncovered through discovery, striking this affirmative
defense prior to trial would be premature.
The intervening cause defense, as stated by Allstate, “includes, but is not limited to”
subsequent medical treatment by Plaintiff’s doctors. (Doc. 15). This caveat implies that there may
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be other theories contemplated by Allstate to substantiate its intervening cause defense. Further, the
Court finds that Plaintiff’s objections to Allstate’s affirmative defense of intervening cause would
be more appropriate if brought immediately prior to trial, through a motion in limine; or during the
course of trial, through objections to testimony or other evidence presented on this issue. Plaintiff
may also, at the conclusion of Allstate’s case, request that the Court refuse to issue a jury instruction
on intervening cause, if such an instruction is unwarranted in light of the evidence presented at trial.
Finally, Plaintiff has cited in her Motion for Partial Summary Judgment to the Arkansas
Supreme Court case of Ponder v. Cartmell, 301 Ark. 409 (1990), for the proposition that a plaintiff’s
misdiagnosis and subsequent improper medical treatment for injuries sustained in an accident cannot,
as a matter of law, be considered an intervening cause of damage, so long as reasonable care has
been used in selecting physicians. See Doc. 57, pp. 1-2. Here, Plaintiff contends that Allstate plans
to argue to the jury, contrary to the rule in Ponder, that the malpractice or misdiagnosis of Plaintiff’s
doctors in the course of caring for Plaintiff’s car accident-related injuries caused certain other
injuries and damages, and that the doctor-caused injury was an intervening cause of damages.
The Court agrees with Plaintiff that it would be objectionable for Allstate to argue at trial that
Plaintiff may not recover damages incurred as a result of doctor malpractice or negative side-effects
from doctor-prescribed medication, provided that Plaintiff can show that she used reasonable care
in selecting her doctors, and Plaintiff’s consultation with those doctors was for injuries proximately
caused by the automobile accident that is the subject of this lawsuit. The limited holding of the
Ponder case is that “[i]f a plaintiff proves that her need to seek medical care was precipitated by the
tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is

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medically necessary, are recoverable.” Ponder, 301 Ark. at 412.1 The Ponder rule does not mean
that any and all medical care sought by Plaintiff after her car accident must be 1) considered
reasonable and necessary or 2) due to injuries proximately caused by the accident. The Ponder rule
when applied to the instant case would only serve to preclude argument by Allstate that Plaintiff
should not be compensated for injuries caused by treating physicians during the course of reasonably
sought medical care for other injuries proximately caused by Plaintiff’s car accident.
Accordingly, Plaintiff’s Motion for Partial Summary Judgment on Allstate’s affirmative
defense of intervening cause is DENIED without prejudice to Plaintiff’s ability to re-assert her
arguments prior to or during trial of this matter.
III. Motion for Default Judgment (Doc. 52)
Plaintiff seeks a default judgment against Allstate due to Allstate’s alleged non-compliance
with an Order of the Court, dated July 30, 2012 (Doc. 41), requiring Allstate to produce to Plaintiff
certain documents following a discovery dispute between the parties. Plaintiff suggests that striking
Allstate’s Answer and entering default judgment in favor of Plaintiff is an appropriate remedy for
Allstate’s alleged discovery abuses, according to Fed. R. Civ. P. 37(b)(2). Allstate responds that it
“has fully complied with the Court’s discovery Order in this case and has more than satisfied its
discovery obligations under Federal Rule of Civil Procedure 26.” (Doc. 59, p. 3).
The Court lacks sufficient facts to conclude that any discovery Order was violated by

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By way of illustration, the Ponder court noted that, according to basic tort principles, if A's
negligence caused B serious harm, and as a result, B was taken to a hospital where B’s surgeon
improperly diagnosed his case and performed an unnecessary operation, A's negligence would be
considered the legal cause of the additional harm which B sustained. Id., citing to Restatement
(Second) of Torts, § 457, Illustration 1.
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Allstate. Currently, there is a third Motion to Compel in this case filed by Plaintiff that is set for
hearing on November 7, 2012, before the Honorable James R. Marschewski, Chief United States
Magistrate Judge for the Western District of Arkansas. Resolution of this third Motion to Compel
may eliminate the parties’ ongoing discovery disputes, including the dispute about the production
of documents by Allstate that Plaintiff references in her Motion for Default Judgment. In any event,
it is clear to the Court that the drastic remedy of default judgment is unwarranted for a number of
reasons. First, the previous two Motions to Compel filed by Plaintiff were vigorously contested by
Allstate, with the result that the Court denied the first Motion to Compel as moot (Doc. 24) after
directing the parties to confer and attempt to resolve the dispute themselves, and then granted in part
and denied in part the Second Motion to Compel (Doc. 41) after the issues were fully briefed by the
parties and the Court held an evidentiary hearing. Second, justice would not be served through the
entry of default judgment, as Allstate has mounted a thorough defense to this action at all times.
Third, the Court is without evidence to definitively conclude that Allstate’s response to the Court’s
July 30, 2012, Order was anything other than sufficient. Accordingly Plaintiff’s request for a default
judgment against Allstate is DENIED.
Turning now to the remainder of Plaintiff’s Motion for Default Judgment, in which Plaintiff
suggests certain alternative relief, the Court declines Plaintiff’s request to deem certain facts – that
are the subject of the parties’ discovery dispute – as having been admitted by Allstate. Plaintiff is
at liberty to establish the veracity of those facts at the trial of this matter. As for Plaintiff’s request
for a stay of these proceedings until Allstate complies with the Court’s July 30, 2012 Order on
Plaintiff’s second Motion to Compel, this request is now moot, due to the fact that 1) trial of this
matter has been continued to January 22, 2013, on motion of Plaintiff; 2) the discovery deadline in
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this case has also been continued by Order dated November 1, 2012, and the Court has been
informed that Plaintiff is scheduled to take the depositions of the Allstate witnesses she requested;
3) Plaintiff’s third Motion to Compel is currently before the Court for resolution, and the issuance
of any penalties associated with the parties’ discovery disputes would be premature in light of the
pending discovery Motion; and 4) Plaintiff was already granted an extension on filing a response to
Defendant’s renewed Motion for Partial Summary Judgment (Doc. 49), by Order dated September
25, 2012.
Accordingly, Plaintiff’s request for alternative relief, as articulated in her Motion for Default
Judgment is DENIED, and her request for various forms of alternative relief are also DENIED due
to mootness.
IV. Conclusion
The Court finds that Plaintiff’s Motions for Partial Summary Judgment (Doc. 44) and for
Default Judgment (Doc. 52) are both DENIED.
As to the Motion for Partial Summary Judgment, the Court finds that there remain genuine
issues of material fact in dispute regarding Allstate’s affirmative defense of intervening cause. The
Court’s denial of Plaintiff’s Motion for Partial Summary Judgment is made without prejudice to
Plaintiff’s ability to re-assert her arguments prior to or during trial of this matter, if Allstate fails to
present evidence sufficient to establish its defense of intervening cause. Further, Plaintiff may make
her objections and/or file motions with the Court in the event Allstate attempts to make an argument
to the jury that is contrary to basic tort law, as articulated in the case of Ponder v. Cartmell.
As to the Motion for Default Judgment, the Court declines to enter this drastic remedy in part
because various discovery disputes between the parties are ongoing and contested. The alternative
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remedies requested by Plaintiff are either denied – in the case of Plaintiff’s request to deem certain
facts admitted – or moot, as deadlines in this case have already been extended in prior Orders.
IT IS SO ORDERED this 6th day of November, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U. S. DISTRICT JUDGE

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