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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 WENDY COLLIER, 9 Plaintiff, United States District Court For the Northern District of California 10 v. 11 12 RELIASTAR LIFE INSURANCE COMPANY, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 11-1760 SC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15 16 17 I. INTRODUCTION Plaintiff Wendy Collier ("Collier") brings this action for 18 breach of contract, bad faith, and intentional infliction of 19 emotional distress against Defendant ReliaStar Life Insurance 20 Company ("ReliaStar") for failure to pay long-term disability 21 ("LTD") benefits. 22 disabled by a combination of diseases, including Ehlers-Danlos 23 Syndrome ("EDS") and Postural Orthostatic Tachycardic Syndrome 24 ("POTS"), which cause her constant fatigue and extreme pain. 25 Collier applied for LTD benefits from her former employer, Marin 26 County, and from ReliaStar, under Marin County's group plan. 27 County denied Collier's claim based on an evidentiary hearing 28 before an Administrative Law Judge ("ALJ"). Collier claims that she has been rendered Marin Collier represented 1 herself pro se before the ALJ because she could not afford an 2 attorney. 3 group plan based on medical evaluations performed by a number of 4 physicians. 5 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 6 7 judgment. ECF No. 31 ("MSJ"). The motion is fully briefed. ECF 8 Nos. 37 ("Opp'n"), 41 ("Reply"). 9 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 10 oral argument. ReliaStar argues that Collier is collaterally 11 estopped from pursuing this lawsuit because an ALJ previously 12 determined that she is not disabled. 13 Collier's tort claims for bad faith and intentional infliction of 14 emotional distress fail because ReliaStar thoroughly investigated 15 her claim. 16 preclude Collier from litigating the issue of her disability in the 17 instant action because Collier lacked the financial means and 18 physical stamina to plead her case before the ALJ. 19 finds that the undisputed facts show that Collier cannot succeed on 20 her claims for bad faith and intentional infliction of emotional 21 distress. 22 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 23 24 II. 25 BACKGROUND Collier worked as an "Eligibility Worker" for Marin County 26 from November 1991 until June 2006. 27 3. 28 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 2 Id. Collier 1 claims that she was unable to continue working in 2006 due to the 2 onset of extreme fatigue and pain. 3 Collier's cardiologist, Dr. Karen Friday ("Friday"), diagnosed 4 Collier with POTS.1 5 with EDS2 by a geneticist, Kathleen Johnson ("Johnson"). 6 told Collier that symptoms, including sprains, dislocations, and 7 joint degeneration, could be treated as needed but would get worse 8 over time. 9 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 11 LTD benefits. 12 is entitled to benefits if she is totally disabled, which is Under Collier's ReliaStar policy, she 13 14 1 15 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. 16 17 18 19 20 21 22 ECF No. 33 ("Bromen Aff.") Ex. A. 2 23 25 27 28 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. 24 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. 3 1 defined as: "the inability to perform with reasonable continuity 2 all of the essential duties of any gainful occupation and as a 3 result [the insured is] not working at all." 4 "gainful occupation" is "any occupation that [the insured] could 5 reasonably be expected to perform satisfactorily in light of [the 6 insured's] age, education, training, experience, station in life, 7 and physical and mental capacity." 8 records from Friday and a number of Collier's other physicians, 9 ReliaStar approved Collier's claim under the policy and awarded her United States District Court For the Northern District of California 10 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 12 relocated to Puerto Armuelles, Panama, located approximately 330 13 miles west of Panama City. 14 ReliaStar requested that Collier submit an updated statement from 15 her physician concerning her condition. 16 Collier submitted a statement from her primary physician, Dr. 17 Michael Mason ("Mason"), reporting a primary diagnosis of EDS with 18 chronic pain and an additional diagnosis of "autonomic 19 dysfunction." 20 Collier since September 5, 2007, more than a year earlier. 21 RS001395. AR RS001395. AR RS000178. About two weeks later, AR RS000179. In response, Mason indicated that he had not seen AR 22 Due to the length of time since Mason had seen Collier, 23 ReliaStar requested that she provide a more recent statement from 24 her current treating physician. 25 ReliaStar received documentation from a Dr. Higiuio Ortega 26 ("Ortega"), Collier's Panamanian physician, indicating that Collier 27 had EDS, autonomic dysfunction, degenerative disease, and heart 28 dysfunction. AR RS001397. AR RS000176. In November 2008, Ortega concluded that Collier could not 4 1 work, but reported that she could lift up to fifty pounds, 2 "balance," "stoop" and "reach"; that she had abilities to use her 3 hands and right foot for at least some repetitive tasks; and that 4 she had only a slight cardiac limitation. 5 subsequently requested Ortega's records, but Collier indicated that 6 Ortega did not keep any, explaining: "It is very old school here, 7 family doctor, small town." 8 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 10 ("Soong") on behalf of Marin County in connection with Collier's 11 application for disability retirement benefits. 12 Soong concluded that Collier could perform her prior job duties for 13 Marin County if minor modifications were offered, that she did not 14 qualify for a diagnosis of EDS, and that there was no evidence of 15 any disease in her joints or abnormalities in her autonomic nervous 16 system. 17 Market Study indicating that seven positions existed near Collier's 18 former residence in California that paid a gainful wage and that 19 Collier could perform given her capabilities, as documented by 20 Soong. 21 Market Study and complains that it contained jobs all over the Bay 22 Area, without respect to the commute from her former home. 23 Decl. ¶ 15. 24 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 25 the information in Soong's independent medical examination, 26 Ortega's reports, and the Labor Market Study, her benefits were 27 being terminated since she did not meet the policy's definition of 28 5 1 being "totally disabled" under the "any occupation standard." 2 RS000146. 3 Collier appealed ReliaStar's decision in April 2009. AR AR 4 RS000134. 5 unsuccessful attempts to obtain additional medical records from 6 Ortega so that it could better evaluate Collier's appeal. 7 RS000130-133. 8 ReliaStar what she claimed to be Ortega's medical records. 9 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 11 such records did not exist. 12 that Ortega first saw Collier in July 2008 for a "skin lesion 13 secondary to heat and friction" and an infection. 14 was not until January 12, 2009 that Collier was seen for any 15 condition that might be related to EDS, when she complained of 16 lower back pain. 17 joint conditions in February, March, and April 2009. 18 91. 19 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 20 independent medical examination in Miami, and was willing to pay 21 Collier's expenses to attend. 22 and travel proved infeasible, ReliaStar commissioned an independent 23 medical review of Collier's file by Dr. Asim Khan ("Khan"), a 24 rheumatologist familiar with EDS. 25 that Collier likely did not have EDS, but that she may have a "mild 26 form of hypermobility syndrome" related to EDS. 27 Khan concluded that Collier might have a "fibromyalgia-like 28 syndrome," anxiety, fatigue, and depression, and that she had been AR RS000576, 581. When scheduling AR RS000549, 573. 6 Khan opined AR RS000553-54. 1 subjectively diagnosed with POTS. 2 could "certainly" work a light or sedentary job with limited 3 restrictions. 4 genetic testing in Collier's file so that Khan could better 5 evaluate Collier's EDS diagnosis. 6 provided a note from Johnson diagnosing Collier with EDS, but Khan 7 continued to believe that Collier could work a light or sedentary 8 job. 9 Panama or in the United States, if Collier chose to return. United States District Court For the Northern District of California 10 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"), 11 informed ReliaStar that Collier had returned to the United States 12 and was living in Napa. 13 commissioned Dr. Scott Anderson ("Anderson") to conduct an 14 independent medical examination of Collier and review her medical 15 records. 16 diagnosis. 17 with obesity and concluded that she could work "8 hours a day, five 18 days a week or something comparable to that," so long as it 19 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. 20 Sometime after Collier returned to the United States, 21 ReliaStar hired a private investigator to conduct sub rosa 22 surveillance. 23 Collier's parent's home in Napa -- where Collier was believed to be 24 living -- on January 8 and January 15, 2010, but did not observe 25 Collier on either date. 26 observe a "white female," believed to be Collier's mother, talking 27 with the mailperson and running an errand on January 8. 28 RS000872. See AR RS000869. The investigator surveilled AR RS000871-74. The investigator did AR For obvious reasons, this surveillance was not 7 1 incorporated into ReliaStar's final decision on Collier's LTD 2 claim. 3 On February 5, 2010, ReliaStar denied Collier's appeal. AR 4 RS000471. 5 examinations performed by Soong and Anderson, as well as Khan's 6 review of Collier's file. 7 that Collier's own physician, Mason, had "outlined physical 8 abilities that would fall within the light category" and stated 9 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 10 accorded little weight to Ortega's opinion since he had not treated 11 Collier for EDS until she had determined that she needed more 12 frequent treatment for insurance purposes. 13 Further, ReliaStar doubted the authenticity of many of Ortega's 14 records, concluding that some were actually authored by Collier and 15 others were "recreated" by Ortega. 16 requested that ReliaStar reconsider its decision, submitting 17 additional medical records from Drs. Mason, Scott E. Pinner 18 ("Pinner"), and Kamer Tezcan ("Tezcan"), dated October 30, 2009 or 19 later. 20 for a second appeal, noting that the newly submitted treatment 21 records did not address the relevant period of time. 22 90. 23 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 24 on behalf of the Marin County Employees' Retirement Association 25 ("MCERA") concerning Collier's application for disability 26 retirement benefits from Marin County. 27 hearing date, Collier had been without benefits for almost a year 28 and was living with her parents in Napa because she "could not 8 Bromen Aff. Ex. H. By the 1 afford to do anything else." 2 allowed Collier to be represented by counsel at the hearing, Bromen 3 Aff. Ex. G § 1007, but Collier "could not afford to pay for 4 representation on an hourly basis, and for financial and other 5 reasons, [she] was refused representation by a number of 6 attorneys," Collier Decl. ¶ 18.4 7 the hearing, but claims that she was unable to follow all of the 8 proceedings due to pain and fatigue. 9 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. 11 Bromen Aff. Ex. H 83-143. 12 declined to testify at the hearing. 13 Collier claims her own physician Collier Decl. ¶ 19. The ALJ concluded that Collier did not establish that she had 14 EDS or POTS or "that she is substantially unable to perform the 15 usual duties" of her previous position with Marin County. 16 Aff. Ex. F at 4-6. 17 the ALJ's findings and denied Collier's request for disability 18 benefits. 19 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 20 11, 2011, alleging claims for bad faith, intentional infliction of 21 emotional distress, and breach of contract. 22 ReliaStar now moves for summary judgment on the grounds that (1) 23 Collier is collaterally estopped from bringing this action because 24 the underlying issues have already been litigated before an ALJ; 25 (2) ReliaStar did not act in bad faith because there was a genuine ECF No. 1 ("Compl."). 26 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 2 is not liable for intentional infliction of emotional distress 3 because its conduct was not extreme or outrageous. MSJ at 12-25. 4 5 III. LEGAL STANDARD 6 Entry of summary judgment is proper "if the movant shows that 7 there is no genuine dispute as to any material fact and the movant 8 is entitled to judgment as a matter of law." 9 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). 12 mandates the entry of summary judgment . . . against a party who 13 fails to make a showing sufficient to establish the existence of an 14 element essential to that party's case, and on which that party 15 will bear the burden of proof at trial." 16 477 U.S. 317, 322 (1986). 17 believed, and all justifiable inferences are to be drawn in his 18 favor." 19 of a scintilla of evidence in support of the plaintiff's position 20 will be insufficient; there must be evidence on which the jury 21 could reasonably find for the plaintiff." 22 opposing parties tell two different stories, one of which is 23 blatantly contradicted by the record, so that no reasonable jury 24 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 1 IV. DISCUSSION 2 A. 3 ReliaStar argues that Collier is collaterally estopped from Collateral Estoppel 4 bringing the instant action because an ALJ has already determined 5 that she is not disabled. 6 known as issue preclusion, applies where: (1) the issue to be 7 precluded is identical to that decided in a prior proceeding; (2) 8 the issue was actually litigated in the prior proceeding; (3) the 9 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 11 whom preclusion is sought is identical to or in privity with the 12 party to the former proceeding. 13 1070, 1077 (Cal. 2006). 14 decisions made by administrative agencies [w]hen an administrative 15 agency is acting in a judicial capacity and resolves disputed 16 issues of fact properly before it which the parties have had an 17 adequate opportunity to litigate." 18 479 (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 21 opportunity to litigate her claims before the ALJ. 22 administrative hearing, Collier was forced to represent herself pro 23 se and she claims she was distracted by fatigue and pain throughout 24 the proceedings. 25 physician to testify at the administrative hearing was Soong, who 26 had been hired by Marin County. 27 claims she asked one of her physicians to testify on her behalf, 28 but he declined. Collier Decl. ¶¶ 18-20. At the Further, the only Bromen Aff Ex. F at 4. Collier Decl. ¶ 19. 11 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 18 19 20 21 22 23 24 25 26 27 28 21

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