Collier v. Reliastar Life Insurance Company

Filing 54

Order by Hon. Samuel Conti granting in part and denying in part 31 Motion for Summary Judgment.(sclc1, COURT STAFF) (Filed on 3/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WENDY COLLIER,

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Plaintiff,

United States District Court

For the Northern District of California

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v.

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RELIASTAR LIFE INSURANCE
COMPANY,

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Defendant.
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Case No. 11-1760 SC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT

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I.

INTRODUCTION
Plaintiff Wendy Collier ("Collier") brings this action for

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breach of contract, bad faith, and intentional infliction of

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emotional distress against Defendant ReliaStar Life Insurance

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Company ("ReliaStar") for failure to pay long-term disability

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("LTD") benefits.

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disabled by a combination of diseases, including Ehlers-Danlos

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Syndrome ("EDS") and Postural Orthostatic Tachycardic Syndrome

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("POTS"), which cause her constant fatigue and extreme pain.

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Collier applied for LTD benefits from her former employer, Marin

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County, and from ReliaStar, under Marin County's group plan.

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County denied Collier's claim based on an evidentiary hearing

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before an Administrative Law Judge ("ALJ").

Collier claims that she has been rendered

Marin

Collier represented

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herself pro se before the ALJ because she could not afford an

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attorney.

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group plan based on medical evaluations performed by a number of

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physicians.

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did bring the instant action against ReliaStar.

ReliaStar denied Collier's claim under Marin County's

Collier did not seek review of the ALJ decision but

Now before the Court is ReliaStar's motion for summary

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7

judgment.

ECF No. 31 ("MSJ").

The motion is fully briefed.

ECF

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Nos. 37 ("Opp'n"), 41 ("Reply").

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1(b), the Court finds the motion suitable for determination without

Pursuant to Civil Local Rule 7-

United States District Court

For the Northern District of California

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oral argument.

ReliaStar argues that Collier is collaterally

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estopped from pursuing this lawsuit because an ALJ previously

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determined that she is not disabled.

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Collier's tort claims for bad faith and intentional infliction of

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emotional distress fail because ReliaStar thoroughly investigated

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her claim.

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preclude Collier from litigating the issue of her disability in the

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instant action because Collier lacked the financial means and

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physical stamina to plead her case before the ALJ.

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finds that the undisputed facts show that Collier cannot succeed on

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her claims for bad faith and intentional infliction of emotional

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distress.

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ReliaStar's motion for summary judgment.

ReliaStar also argues that

The Court finds that collateral estoppel should not

The Court also

Accordingly, the Court GRANTS in part and DENIES in part

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II.

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BACKGROUND
Collier worked as an "Eligibility Worker" for Marin County

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from November 1991 until June 2006.

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3.

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in her family and had three children to support.

ECF No. 39 ("Collier Decl.") ¶

During much of this time, Collier was the primary wage earner

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Id.

Collier

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claims that she was unable to continue working in 2006 due to the

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onset of extreme fatigue and pain.

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Collier's cardiologist, Dr. Karen Friday ("Friday"), diagnosed

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Collier with POTS.1

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with EDS2 by a geneticist, Kathleen Johnson ("Johnson").

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told Collier that symptoms, including sprains, dislocations, and

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joint degeneration, could be treated as needed but would get worse

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over time.

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but there is no treatment for her fatigue.

United States District Court

For the Northern District of California

10

Id. ¶ 8.

Id. ¶ 7.

Id. ¶ 4.

In October 2006,

Collier was subsequently diagnosed
Johnson

Collier claims that rest improves her pain
Id.

In February 2007, Collier submitted a claim to ReliaStar for
AR RS000848.3

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LTD benefits.

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is entitled to benefits if she is totally disabled, which is

Under Collier's ReliaStar policy, she

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Postural orthostatic tachycardia syndrome (POTS) is one
of a group of disorders that have orthostatic intolerance
(OI) as their primary symptom. OI describes a condition
in which an excessively reduced volume of blood returns
to the heart after an individual stands up from a lying
down
position.
The
primary
symptom
of
OI
is
lightheadedness or fainting. In POTS, the lightheadedness
or fainting is also accompanied by a rapid increase in
heartbeat of more than 30 beats per minute, or a heart
rate that exceeds 120 beats per minute, within 10 minutes
of rising. The faintness or lightheadedness of POTS are
relieved by lying down again.

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ECF No. 33 ("Bromen Aff.") Ex. A.
2

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According to NIH:
Ehlers-Danlos syndrome (EDS) is a group of inherited
disorders that weaken connective tissues. Connective
tissues are proteins that support skin, bones, blood
vessels and other organs.

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26

According to the National Institute of Health ("NIH"):

Bromen Aff. Ex. B.
3

ReliaStar's Administrative Record ("AR") is attached to the
Affidavit of Mary Kay Racette, ECF No. 32, and has been bates
labeled as RS00xxxx. Citations to the AR in this Order follow this
format.

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defined as: "the inability to perform with reasonable continuity

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all of the essential duties of any gainful occupation and as a

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result [the insured is] not working at all."

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"gainful occupation" is "any occupation that [the insured] could

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reasonably be expected to perform satisfactorily in light of [the

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insured's] age, education, training, experience, station in life,

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and physical and mental capacity."

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records from Friday and a number of Collier's other physicians,

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ReliaStar approved Collier's claim under the policy and awarded her

United States District Court

For the Northern District of California

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11

AR RS000035.

AR RS000036.

benefits retroactively to September 12, 2006.

A

After obtaining

AR RS000180.

On July 15, 2008, Collier informed ReliaStar that she had

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relocated to Puerto Armuelles, Panama, located approximately 330

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miles west of Panama City.

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ReliaStar requested that Collier submit an updated statement from

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her physician concerning her condition.

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Collier submitted a statement from her primary physician, Dr.

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Michael Mason ("Mason"), reporting a primary diagnosis of EDS with

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chronic pain and an additional diagnosis of "autonomic

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dysfunction."

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Collier since September 5, 2007, more than a year earlier.

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RS001395.

AR RS001395.

AR RS000178.

About two weeks later,

AR RS000179.

In response,

Mason indicated that he had not seen
AR

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Due to the length of time since Mason had seen Collier,

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ReliaStar requested that she provide a more recent statement from

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her current treating physician.

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ReliaStar received documentation from a Dr. Higiuio Ortega

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("Ortega"), Collier's Panamanian physician, indicating that Collier

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had EDS, autonomic dysfunction, degenerative disease, and heart

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dysfunction.

AR RS001397.

AR RS000176.

In November 2008,

Ortega concluded that Collier could not

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work, but reported that she could lift up to fifty pounds,

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"balance," "stoop" and "reach"; that she had abilities to use her

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hands and right foot for at least some repetitive tasks; and that

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she had only a slight cardiac limitation.

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subsequently requested Ortega's records, but Collier indicated that

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Ortega did not keep any, explaining: "It is very old school here,

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family doctor, small town."

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9

AR RS001398.

ReliaStar

AR RS000005, 171, 175.

On February 7, 2009, ReliaStar received a report of an
independent medical examination performed by Dr. James Soong

United States District Court

For the Northern District of California

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("Soong") on behalf of Marin County in connection with Collier's

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application for disability retirement benefits.

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Soong concluded that Collier could perform her prior job duties for

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Marin County if minor modifications were offered, that she did not

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qualify for a diagnosis of EDS, and that there was no evidence of

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any disease in her joints or abnormalities in her autonomic nervous

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system.

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Market Study indicating that seven positions existed near Collier's

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former residence in California that paid a gainful wage and that

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Collier could perform given her capabilities, as documented by

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Soong.

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Market Study and complains that it contained jobs all over the Bay

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Area, without respect to the commute from her former home.

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Decl. ¶ 15.

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AR RS0000287-88.

AR RS000153, 166.

AR RS000274.

ReliaStar also commissioned a Labor

Collier claims she never saw the Labor

Collier

On April 8, 2009, ReliaStar informed Collier that, based on

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the information in Soong's independent medical examination,

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Ortega's reports, and the Labor Market Study, her benefits were

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being terminated since she did not meet the policy's definition of

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being "totally disabled" under the "any occupation standard."

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RS000146.

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Collier appealed ReliaStar's decision in April 2009.

AR

AR

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RS000134.

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unsuccessful attempts to obtain additional medical records from

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Ortega so that it could better evaluate Collier's appeal.

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RS000130-133.

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ReliaStar what she claimed to be Ortega's medical records.

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RS0000086-98.

Beginning in May 2009, ReliaStar made numerous

See AR

Finally, on August 6, 2009, Collier faxed to
AR

ReliaStar doubted the authenticity of the records

United States District Court

For the Northern District of California

10

because, among other things, Collier had previously indicated that

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such records did not exist.

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that Ortega first saw Collier in July 2008 for a "skin lesion

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secondary to heat and friction" and an infection.

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was not until January 12, 2009 that Collier was seen for any

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condition that might be related to EDS, when she complained of

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lower back pain.

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joint conditions in February, March, and April 2009.

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91.

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AR RS000616-17.

AR RS000586.

The records indicated

AR RS000584.

It

Ortega also saw Collier for pain or
AR RS000588-

Subsequently, ReliaStar attempted to arrange for an

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independent medical examination in Miami, and was willing to pay

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Collier's expenses to attend.

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and travel proved infeasible, ReliaStar commissioned an independent

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medical review of Collier's file by Dr. Asim Khan ("Khan"), a

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rheumatologist familiar with EDS.

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that Collier likely did not have EDS, but that she may have a "mild

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form of hypermobility syndrome" related to EDS.

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Khan concluded that Collier might have a "fibromyalgia-like

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syndrome," anxiety, fatigue, and depression, and that she had been

AR RS000576, 581.

When scheduling

AR RS000549, 573.

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Khan opined

AR RS000553-54.

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subjectively diagnosed with POTS.

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could "certainly" work a light or sedentary job with limited

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restrictions.

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genetic testing in Collier's file so that Khan could better

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evaluate Collier's EDS diagnosis.

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provided a note from Johnson diagnosing Collier with EDS, but Khan

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continued to believe that Collier could work a light or sedentary

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job.

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Panama or in the United States, if Collier chose to return.

United States District Court

For the Northern District of California

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AR RS000554-55.

AR RS000498-99.

Id.

Khan believed that Collier

ReliaStar requested any records of

AR RS0000553, 558.

Collier

Kahn recommended further evaluation in
Id.

In December 2009, Collier's attorney, David Linden ("Linden"),

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informed ReliaStar that Collier had returned to the United States

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and was living in Napa.

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commissioned Dr. Scott Anderson ("Anderson") to conduct an

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independent medical examination of Collier and review her medical

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records.

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diagnosis.

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with obesity and concluded that she could work "8 hours a day, five

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days a week or something comparable to that," so long as it

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involved light or sedentary work.

AR RS0000558.

Subsequently, ReliaStar

Like Soong and Kahn, Anderson rejected Collier's EDS
AR RS000491-92.

Instead, Anderson diagnosed Collier

Id.

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Sometime after Collier returned to the United States,

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ReliaStar hired a private investigator to conduct sub rosa

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surveillance.

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Collier's parent's home in Napa -- where Collier was believed to be

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living -- on January 8 and January 15, 2010, but did not observe

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Collier on either date.

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observe a "white female," believed to be Collier's mother, talking

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with the mailperson and running an errand on January 8.

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RS000872.

See AR RS000869.

The investigator surveilled

AR RS000871-74.

The investigator did

AR

For obvious reasons, this surveillance was not

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incorporated into ReliaStar's final decision on Collier's LTD

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claim.

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On February 5, 2010, ReliaStar denied Collier's appeal.

AR

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RS000471.

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examinations performed by Soong and Anderson, as well as Khan's

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review of Collier's file.

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that Collier's own physician, Mason, had "outlined physical

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abilities that would fall within the light category" and stated

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that Collier was working part-time.

The denial was based on the independent medical

AR RS000480, 82.

ReliaStar also noted

AR RS000480-81.

ReliaStar

United States District Court

For the Northern District of California

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accorded little weight to Ortega's opinion since he had not treated

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Collier for EDS until she had determined that she needed more

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frequent treatment for insurance purposes.

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Further, ReliaStar doubted the authenticity of many of Ortega's

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records, concluding that some were actually authored by Collier and

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others were "recreated" by Ortega.

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requested that ReliaStar reconsider its decision, submitting

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additional medical records from Drs. Mason, Scott E. Pinner

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("Pinner"), and Kamer Tezcan ("Tezcan"), dated October 30, 2009 or

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later.

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for a second appeal, noting that the newly submitted treatment

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records did not address the relevant period of time.

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90.

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AR RS000889-90, 929.

Id.

AR RS000481-82.

Collier subsequently

ReliaStar denied Collier's request

AR RS000889-

On June 15, 2010, a contested hearing was held before an ALJ

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on behalf of the Marin County Employees' Retirement Association

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("MCERA") concerning Collier's application for disability

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retirement benefits from Marin County.

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hearing date, Collier had been without benefits for almost a year

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and was living with her parents in Napa because she "could not

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Bromen Aff. Ex. H.

By the

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afford to do anything else."

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allowed Collier to be represented by counsel at the hearing, Bromen

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Aff. Ex. G § 1007, but Collier "could not afford to pay for

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representation on an hourly basis, and for financial and other

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reasons, [she] was refused representation by a number of

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attorneys," Collier Decl. ¶ 18.4

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the hearing, but claims that she was unable to follow all of the

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proceedings due to pain and fatigue.

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only physician at the hearing, testified that Collier was able to

Collier Decl. ¶ 17.

MCERA bylaws

Collier represented herself at

Id. ¶¶ 18, 20.

Soong, the

United States District Court

For the Northern District of California

10

perform the duties of her previous position with Marin County.

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Bromen Aff. Ex. H 83-143.

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declined to testify at the hearing.

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Collier claims her own physician
Collier Decl. ¶ 19.

The ALJ concluded that Collier did not establish that she had

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EDS or POTS or "that she is substantially unable to perform the

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usual duties" of her previous position with Marin County.

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Aff. Ex. F at 4-6.

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the ALJ's findings and denied Collier's request for disability

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benefits.

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Bromen

On January 12, 2011, MCERA unanimously approved

Bromen Aff. Ex. J at 4.

Collier declined to appeal.

Collier filed the instant action against ReliaStar on April

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11, 2011, alleging claims for bad faith, intentional infliction of

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emotional distress, and breach of contract.

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ReliaStar now moves for summary judgment on the grounds that (1)

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Collier is collaterally estopped from bringing this action because

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the underlying issues have already been litigated before an ALJ;

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(2) ReliaStar did not act in bad faith because there was a genuine

ECF No. 1 ("Compl.").

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4

27
28

At the time, Collier was represented by Linden in connection with
ReliaStar's denial of benefits, but Linden claimed that the
administrative hearing was outside of his field. Collier Decl. ¶
18. Linden unsuccessfully attempted to continue the hearing so
that Collier could find representation. Id.

9

1

dispute regarding Collier's claim for benefits; and (3) ReliaStar

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is not liable for intentional infliction of emotional distress

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because its conduct was not extreme or outrageous.

MSJ at 12-25.

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III. LEGAL STANDARD

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Entry of summary judgment is proper "if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law."

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56(a).

Fed. R. Civ. P.

Summary judgment should be granted if the evidence would

United States District Court

For the Northern District of California

10

require a directed verdict for the moving party.

11

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

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mandates the entry of summary judgment . . . against a party who

13

fails to make a showing sufficient to establish the existence of an

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element essential to that party's case, and on which that party

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will bear the burden of proof at trial."

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477 U.S. 317, 322 (1986).

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believed, and all justifiable inferences are to be drawn in his

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favor."

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of a scintilla of evidence in support of the plaintiff's position

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will be insufficient; there must be evidence on which the jury

21

could reasonably find for the plaintiff."

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opposing parties tell two different stories, one of which is

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blatantly contradicted by the record, so that no reasonable jury

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could believe it, a court should not adopt that version of the

25

facts for purposes of ruling on a motion for summary judgment."

26

Scott v. Harris, 550 U.S. 372, 380 (2007).

27

///

28

///

Anderson v.
Thus, "Rule 56[]

Celotex Corp. v. Catrett,

"The evidence of the nonmovant is to be

Anderson, 477 U.S. at 255.

10

However, "[t]he mere existence

Id. at 252.

"When

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IV.

DISCUSSION

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A.

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ReliaStar argues that Collier is collaterally estopped from

Collateral Estoppel

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bringing the instant action because an ALJ has already determined

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that she is not disabled.

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known as issue preclusion, applies where: (1) the issue to be

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precluded is identical to that decided in a prior proceeding; (2)

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the issue was actually litigated in the prior proceeding; (3) the

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issue was necessarily decided; (4) the decision in the prior

MSJ at 12.

Collateral estoppel, also

United States District Court

For the Northern District of California

10

proceeding was "final and on the merits"; and (5) the party against

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whom preclusion is sought is identical to or in privity with the

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party to the former proceeding.

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1070, 1077 (Cal. 2006).

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decisions made by administrative agencies [w]hen an administrative

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agency is acting in a judicial capacity and resolves disputed

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issues of fact properly before it which the parties have had an

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adequate opportunity to litigate."

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479 (Cal. 1982) (internal quotations omitted).

19

People v. Garcia, 39 Cal. 4th

"Collateral estoppel may be applied to

People v. Sims, 32 Cal. 3d 468,

The Court finds that Collier is not collaterally estopped from

20

bringing the instant action because she did not have an adequate

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opportunity to litigate her claims before the ALJ.

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administrative hearing, Collier was forced to represent herself pro

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se and she claims she was distracted by fatigue and pain throughout

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the proceedings.

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physician to testify at the administrative hearing was Soong, who

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had been hired by Marin County.

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claims she asked one of her physicians to testify on her behalf,

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but he declined.

Collier Decl. ¶¶ 18-20.

At the

Further, the only

Bromen Aff Ex. F at 4.

Collier Decl. ¶ 19.

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Collier

Collier did not know the

1

procedure to arrange for his testimony and lacked the money to pay

2

expert fees.

3

ALJ's decision a preclusive effect in the instant action.

4

v. Ruff, 961 F.2d 1064, 1065 (2d Cir. 1992) (plaintiff "lacked a

5

full and fair opportunity to litigate his claim" in parallel state

6

litigation because his claims "could not be adequately presented

7

pro se"); Davis v. Charleston, 827 F.2d 317 n.3 (8th Cir. 1987)

8

("[A]s a pro se litigant before the state court, we do not believe

9

that [plaintiff] had a full and fair opportunity to litigate the

Id.

Accordingly, the Court declines to give the
See West

United States District Court

For the Northern District of California

10

issue in the prior suit." (internal quotations and citations

11

omitted)).

12

ReliaStar argues that Collier's pro se status is irrelevant

13

since, under Sims, collateral estoppel is justified so long as a

14

party "had notice of the hearing as well as the opportunity and

15

incentive to present its case."

16

3d at 481).

17

gave preclusive effect to an administrative hearing before the

18

California Department of Social Services, even though Sonoma

19

County, the party against whom collateral estoppel was asserted,

20

had declined to present any evidence or otherwise participate at

21

the hearing.

22

County had an opportunity and incentive to present its case at the

23

hearing, even if it declined to so.

24

indication that Sonoma County, like Collier, lacked the means to

25

hire an attorney or acquire pertinent evidence.

26

Sims is inapposite.

Reply at 5 (citing Sims, 32 Cal.
In that case, the Supreme Court

Sims, 32 Cal. 3d at 481.

The court reasoned that the

Id.

However, there is no

ReliaStar also argues that Collier must have had a full and

27

fair hearing since she testified, cross-examined Soong, and entered

28

evidence into the record.

Reply at 5.

12

The Court disagrees.

The

1

fact that Collier acted as her own attorney does not mean that she

2

performed adequately.

3

statement consisted of the following: "I guess I would, you know,

4

just like to say, you know, I am hoping that the medical evidence

5

is sufficient to support what I am saying is making me unable to

6

work.

7

perusal of the rest of the hearing transcript shows that Collier

8

would have greatly benefited from competent legal representation.5

9

United States District Court

For the Northern District of California

10

For example, Collier's entire opening

And that's about it."

Bromen Ex. H at 5.

Even a brief

For these reasons, the Court finds that Collier is not
collaterally estopped from bringing the instant action.

11

B.

12

Collier's claim for bad faith, i.e., violation of the covenant

Collier's Bad Faith Claim

13

of good faith and fair dealing, is predicated on ReliaStar's

14

alleged failure to thoroughly investigate her disability claim.

15

See Compl. ¶¶ 6-7, Opp'n at 6-7.

16

support such a claim.

The undisputed facts do not

17

In the insurance context, the implied covenant of good faith

18

and fair dealing requires an insurer to refrain from injuring its

19

insured's right to receive the benefits of the insurance agreement.

20

Egan v. Mut. of Omaha Ins. Cos., 24 Cal. 3d 809, 818 (Cal. 1979).

21

The implied covenant imposes an obligation on insurers to "give at

22

least as much consideration to the welfare of its insured as it

23
5

24
25
26
27
28

ReliaStar also challenges the credibility of Collier's assertion
that she could not afford an attorney. Reply at 5 n.1. This
argument lacks merit. As an initial matter, the Court cannot make
credibility determinations on a summary judgment motion. Even if
it could, it is entirely plausible that Collier, who had been
without disability benefits for over a year and was living with her
parents at the time, lacked the means to pay an attorney out-ofpocket. It is also plausible that Collier was unable to find an
attorney to represent her at an administrative hearing on a
contingency fee basis.

13

1

gives to its own interests" and, consequently, to "fully inquire

2

into possible bases that might support the insured's claim."

3

at 818-19.

4

of investigation is needed to meet the insurer's obligations."

5

Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 723 (Cal. 2007).

6

Instead, claims of bad faith "must be evaluated in light of the

7

totality of the circumstances."

8

"review of the insured's submitted medical records might reveal an

9

indisputably reasonable basis to deny the claim without further

United States District Court

For the Northern District of California

10

There is no "general rule as to how much or what type

investigation."6

11

Id.

Id.

For example, in some cases,

Id.

The Court finds that ReliaStar met its duty to investigate

12

Collier's claim.

13

consulted a number of physicians, including Soong, Kahn, and

14

Anderson, before reaching a final determination on Collier's claim.

15

Additionally, ReliaStar reviewed the records of Collier's own

16

physicians, including Mason and Ortega, and exerted significant

17

efforts to obtain, translate, and verify the records of Ortega.

18

one point, in an attempt to better assess her claim, ReliaStar

19

offered to fly Collier from Panama to Miami so that it could

20

commission an independent medical examination.

21

ReliaStar repeatedly asked Collier to submit additional documents

As detailed in Section II above, ReliaStar

At

Additionally,

22
23
24
25
26
27
28

6

ReliaStar contends an insurer has no further duty to investigate
a claim once it has determined that there is a genuine dispute over
coverage. Reply at 9. The Ninth Circuit has held as much.
Brinderson-Newberg Joint Venture v. Pac. Erectors, Inc., 971 F.2d
272, 282-283 (9th Cir. 1992). However, a genuine dispute only
exists "where the insurer's position is maintained in good faith
and on reasonable grounds." Wilson, 42 Cal. 4th at 723.
Presumably, where, as here, a factual dispute arises between the
parties, some reasonable investigation is required before an
insurer can maintain its position "in good faith and on reasonable
grounds." An insurer may not manufacture a "genuine dispute" over
a factual issue by conducting a biased or incomplete investigation.

14

1

that might support her claim.

2

circumstances, these efforts are sufficient to satisfy ReliaStar's

3

duty to investigate.

4

In light of the totality of the

Collier cites fifteen purported deficiencies in ReliaStar's

5

handling of her claim.

6

deficiencies, either considered independently or taken together,

7

are insufficient to support a claim for bad faith.

8
9

The Court finds that these purported

First, Collier argues that ReliaStar ignored the subjective
evidence of her condition, such as chronic pain and fatigue.

Opp'n

United States District Court

For the Northern District of California

10

at 8-9.

11

independent physicians who either examined Collier or reviewed her

12

records noted and considered her subjective complaints.

13

RS000275-76, 485-86, 552-54.

14

Circuit's decision in Salomaa v. Honda Long Term Disability Plan,

15

642 F.3d 666 (9th Cir. 2011).

16

physicians diagnosed him with chronic fatigue syndrome, a condition

17

without objective symptoms, and every physician who examined the

18

plaintiff concurred that he was disabled.

19

669, 676.

20

among various physicians about the extent and existence of

21

Collier's disability and no doctor has diagnosed her with chronic

22

fatigue syndrome.

23

considered whether the plan had wrongfully denied benefits, not

24

whether that denial was made in bad faith.

25

This claim is contradicted by the record.

Each of the

See AR

Collier heavily relies on the Ninth

In that case, the plaintiff's

Such is not the case here.

Salomaa, 642 F.3d at

There is a disagreement

Further, in Salomaa, the Ninth Circuit

Second, Collier complains that ReliaStar "failed to tell [her]

26

what evidence it would accept to prove that she had too much pain

27

or fatigue to work."

28

an initial matter, Collier cites no authority which would impose

Opp'n at 9.

15

This argument is unavailing.

As

1

such an obligation on insurers in this context.

2

asked Collier to submit additional evidence which might support her

3

claim on numerous occasions.

4

Further, ReliaStar

See, e.g., AR RS000175, 558.

Third, Collier argues that ReliaStar acted in bad faith

5

because "when it terminated Ms. Collier's benefits and told her she

6

could appeal, it failed to tell her that she was not required to go

7

through an appeal, and could instead immediately file suit."

8

at 9.

9

position.

United States District Court

For the Northern District of California

10
11

Opp'n

Once again, Collier cites no authority to support her
Further, ReliaStar never indicated that Collier was

required to appeal.

See AR RS000148.

Fourth, Collier asserts that ReliaStar consistently failed to

12

give her the opportunity to respond to medical reports before

13

ReliaStar relied upon them to make a decision.

14

This argument has been rejected in the ERISA context since

15

requiring an insurer to obtain a response to an expert report

16

before a decision "would create an endless loop of opinions,

17

characterized by an unnecessary cycle of submission, review, re-

18

submission, and re-review."

19

No. EDCV 07-238-VAP (OPx), 2008 U.S. Dist. LEXIS 109824, at *21

20

(C.D. Cal. Mar. 26, 2008) (internal quotations and citations

21

omitted).

22

Opp'n at 9-10.

Winz-Byone v. Metro. Life Ins. Co.,

Fifth, Collier argues that, in making its initial termination

23

decision, ReliaStar improperly relied on Soong's medical report and

24

disregarded Ortega's.

25

accord more weight to Soong's diagnosis than to Ortega's cannot

26

support a claim for bad faith because it was not unreasonable.

27

Soong had conducted an independent medical examination of Collier,

28

reviewed her medical files, and had provided ReliaStar with

Opp'n at 10.

16

But ReliaStar's decision to

1

supporting documentation.

2

initial termination decision, Ortega had not provided ReliaStar

3

with medical records supporting his diagnosis.

4

in ReliaStar's termination letter, Ortega had "outline[d]

5

[Collier's] physical capacities in the light-medium category,"

6

indicating that she was capable of performing some work.

7

RS000147.

On the other hand, at the time of the

Further, as noted

AR

8

Sixth, Collier argues that ReliaStar committed bad faith

9

because Soong "did not measure joint laxity -- instead he measured

United States District Court

For the Northern District of California

10

range of motion of some of the larger joints."

11

if Soong's examination was flawed in some way -- and based on the

12

record before the Court it is not altogether clear that it was --

13

ReliaStar cannot be held liable for bad faith for relying on it.

14

Missing from Collier's opposition is any indication that ReliaStar

15

acted unreasonably in basing its benefits decision on Soong's

16

independent medical examination.

17

Opp'n at 10.

Even

Seventh, Collier faults ReliaStar for failing to consider

18

whether Soong was biased.

19

90 percent of his medical legal work has been for defendants and

20

that his opinions are generally based on "objective diseases and

21

findings" rather than subjective symptoms.

22

frequently testifies on behalf of defendants does not mean that it

23

was unreasonable for ReliaStar to rely on his opinion.

24

noted above, Soong did assess Collier's subjective symptoms in

25

rendering his diagnosis.

26

Opp'n at 11.

Soong has testified that

Id.

But the fact Soong

Further, as

Eighth, Collier argues that ReliaStar did not timely inform

27

her that it was reexamining her claim because her policy's

28

definition of disability had changed.

17

Opp'n at 11.

This claim is

1

contradicted by the record.

2

Collier that her initial claim for disability benefits had been

3

approved, that the policy's definition of disability would change

4

in September 2008, and that ReliaStar would be reviewing her claim

5

periodically.

6

In April 2007, ReliaStar informed

AR RS000180-81.

Ninth, Collier contends that "ReliaStar does not believe it

7

has an obligation to investigate."

8

on this excerpt from the deposition testimony of ReliaStar claim

9

analyst Steve Cayford ("Cayford"): "It's not a duty to seek out

Opp'n at 11-12.

Collier relies

United States District Court

For the Northern District of California

10

information.

11

would require that the claimant provide this information."

12

This argument is unconvincing.

13

completely out of context.

14

("Cayford Dep.") at 6-7.

15

interpretation of ReliaStar's legal duties, the undisputed facts

16

show that ReliaStar adequately investigated Collier's claim.

17

There is a proof of loss provision in the policy that
Id.

Cayford's statement is taken

See ECF No. 40 ("Padway Decl.") Ex. 2

Additionally, regardless of Cayford's

Tenth, Collier takes issue with Kahn's medical evaluation,

18

speculating that he might have reached a different conclusion had

19

ReliaStar gathered a better history from Collier.

20

Such speculation cannot support a claim for bad faith.

21

ReliaStar argues, the issue is not what Khan might have concluded

22

had the facts been different, but what he did conclude.

23

Ultimately, there was nothing unreasonable about ReliaStar's

24

reliance on Khan's opinion.

25

Opp'n at 12.
As

Eleventh, Collier questions the impartiality of Anderson and

26

MES Medical Solutions, the company that contracted Anderson for

27

Collier's independent medical examination.

28

18

Id. at 12-13.

These

1

charges of bad faith are substantially similar to those made

2

concerning Soong and Kahn, and they fail for the same reasons.

3

Collier's twelfth argument is predicated on an apparent

4

misunderstanding of ReliaStar's attempted surveillance of Collier.

5

See id. at 13.

6

ReliaStar's benefits decision because Collier was never actually

7

observed by ReliaStar's private investigator.

8

Collier appears to argue that the surveillance should have been

9

incorporated into ReliaStar's decision because it somehow supported

The surveillance was not incorporated into

AR RS000869-872.

United States District Court

For the Northern District of California

10

her disability claim.

11

that the January 8, 2010 surveillance only showed that she "ran an

12

errand and talked to her mailman.

13

consistent with the reported pain and fatigue."

14

argument borders on the frivolous.

15

indicates, it was Collier's mother, not Collier, that was observed

16

talking to the mailman and running an errand.

17

Opp'n at 13.

Specifically, Collier argues

The surveillance results are
Id. at 13.

This

As the surveillance report

AR RS000872-74.

Thirteenth, Collier contends that ReliaStar failed to properly

18

evaluate Collier's claim that she had too much fatigue and pain to

19

work when it denied her appeal in February 2010.

20

This appears to be nothing more than a repetition of a number of

21

arguments already addressed and rejected above.

Opp'n. at 13.

22

Fourteenth, Collier contends that ReliaStar somehow committed

23

bad faith when it questioned the authenticity of Ortega's records.

24

Opp'n at 14.

25

it was not unreasonable for ReliaStar to doubt Ortega's records.

26

For example, Collier, not Ortega, initially sent ReliaStar the

27

records, and Collier had initially represented that such records

28

did not exist.

The Court disagrees.

In light of the circumstances,

Further, the records that were obtained directly

19

1

from Ortega indicate that Collier was not treated for joint pain

2

and chronic fatigue until after ReliaStar began to question her

3

diagnosis.

4

Finally, Collier accuses ReliaStar of picking and choosing

5

which evidence it would gather and consider.

6

Collier specifically targets ReliaStar's decision to disregard her

7

treatment records from October 30, 2009 and beyond since

8

ReliaStar's decision was based on Collier's condition as of April

9

9, 2009.

Id.

Opp'n at 14-15.

Collier points out that ReliaStar conducted

United States District Court

For the Northern District of California

10

surveillance in January and April 2010 and ordered Anderson to

11

conduct an examination in January 2010.

12

unavailing.

13

independent medical examination and surveillance until 2010 because

14

it believed that Collier was living in Panama through 2009.

15
16

Id.

This argument is

Presumably, ReliaStar waited to commission an

Accordingly, the Court GRANTS ReliaStar's motion for summary
judgment with respect to Collier's claim for bad faith.7

17

C.

18

To prevail on her claim for intentional infliction of emotion

Intentional Infliction for Emotional Distress

19

distress, Collier must show "extreme" and "outrageous" conduct on

20

the part of ReliaStar.

21

3d 579, 593 (Cal. 1979).

See Cervantez v. J. C. Penney Co., 24 Cal.
"This standard is at least as difficult

22
7

23
24
25
26
27
28

With the Court's approval, ECF No. 46 ("Mar. 5, 2012 Order"),
Collier filed a Surreply, alleging a number of additional
deficiencies in the medical evaluations of Khan, Soong, and
Anderson, ECF No. 48 ("Surreply"). Collier's Surreply suffers from
the same defects as her opposition: it does not show why it was
unreasonable for ReliaStar to rely on the independent evaluations
of these medical professionals and, therefore, why ReliaStar should
be held liable for bad faith. Further, with respect to Collier's
bad faith claim, ReliaStar's actions must be measured on the facts
it possessed at the time it rendered its benefits decision. The
new information on which Collier relies, deposition testimony of
Khan and Anderson, was not available to ReliaStar at the time it
terminated Collier's benefits.

20

1

to meet as that for insurance bad faith, if not more so."

2

Std. Ins. Co., 51 Fed. Appx. 222, 224 (9th Cir. 2002).

3

undisputed facts show that Collier cannot state a claim for bad

4

faith, her claim for intentional infliction of emotional distress

5

must also fail.

Ayers v.

As the

6
7
8
9

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES

in part Defendant ReliaStar Life Insurance Company's motion for

United States District Court

For the Northern District of California

10

summary judgment.

11

and intentional infliction of emotional distress are DISMISSED.

12

Collier's claim for breach of contract may proceed to trial.

Plaintiff Wendy Collier's claims for bad faith

13
14

IT IS SO ORDERED.

15
16
17

Dated:

March 13, 2012
UNITED STATES DISTRICT JUDGE

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