Quinones v. UnitedHealth Group Incorporated et al

Filing 157

ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS FOR COUNTS VII (NIED) AND VIII (IIED) re 89 Motion for Judgment on the Pleadings. Signed by JUDGE LESLIE E. KOBAYASHI on 07/29/2016. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiffs,
)
)
vs.
)
)
)
UnitedHealth Group
Incorporated;
)
)
UnitedHealthcare, Inc.;
UnitedHealthcare Insurance
)
)
Co.,
)
)
Defendants.
_____________________________ )
Juan Rios Quinones,

CIVIL NO. 14-00497 LEK-RLP

ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT
ON THE PLEADINGS FOR COUNTS VII (NIED) AND VIII (IIED)
Before the Court is Defendants UnitedHealth Group
Incorporated, UnitedHealthcare, Inc., and UnitedHealthcare
Insurance Company’s (collectively “Defendants”) Motion for
Judgment on the Pleadings as to Counts VII (NIED) and VIII (IIED)
(“Motion”),1 filed on May 18, 2016.

[Dkt. no. 89.]

Plaintiff

Juan Rios Quinones (“Plaintiff”) filed his memorandum in
opposition on June 6, 2016, and Defendants filed their reply on
June 20, 2016.

[Dkt. nos. 100, 112.]

On May 23, 2016, the Court

issued an entering order finding this matter suitable for

1

Count VII is Plaintiff’s claim for negligent infliction of
emotional distress (“NIED”), and Count VIII is his claim for
intentional infliction of emotional distress (“IIED”).
[Complaint for Declaratory and Injunctive Relief, and for
Compensatory and Punitive Damages (“Complaint”), filed 10/31/14
(dkt. no. 1), at ¶¶ 210-25.]

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i.

[Dkt. no. 94.]

After careful

consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Defendants’ Motion is HEREBY
DENIED, because, at this stage of the litigation, all reasonable
inferences must be drawn in Plaintiff’s favor and there is
sufficient reference in the Complaint to defeat Defendants’
Motion easily, and for the reasons set forth below.
BACKGROUND
The factual and procedural background was set forth in
the Court’s June 30, 2015 Order Granting in Part and Denying in
Part Defendants’ Motion for Judgment on the Pleadings as to
Plaintiff’s Allegations Relating to Medicare Benefits (“Medicare
Act Order”).

[Dkt. no. 49.2]

The Court will only repeat the

background that is relevant to the instant Motion.
Plaintiff’s NIED and IIED claims arise from the lengthy
delays associated with Plaintiff’s request for repair of his
prior personal mobility device (“PMD”) and his request for
coverage of a new PMD with medically necessary “Group 3”
accessories.

Medicare Act Order, 2015 WL 3965961, at *1.

In

Counts VII and VIII, Plaintiff alleges that Defendants’ actions

2

The Medicare Act Order is also available at 2015 WL
3965961.
2

and omissions caused him extreme pain and suffering, as well as
emotional distress, including “pain, depression, mental worry,
anxiety, anguish, hopelessness, loss of sleep, indignity, and
other symptoms of severe emotional distress.”
¶¶ 216, 225.]

[Complaint at

Plaintiff alleges that Defendants should have

known that denying coverage for his PMD would “deny[] Plaintiff
the mobility to carry out the activities of daily living
independently” and “would condemn him to be confined to his
apartment” “for weeks, months, and eventually a year.”
¶¶ 211-12, 218-19.]

[Id. at

Specifically in support of his IIED claim,

Plaintiff alleges that “it may be reasonably inferred from
Defendants’ actions despite knowing Plaintiff would suffer
extreme emotional distress that Defendants intended for his
suffering emotional distress to aid them in their negotiations
for lesser benefits.”

[Id. at ¶ 222.]

In the Medicare Act Order, this Court concluded that:
Plaintiff’s claims arose, at least in part, under the Medicare
Act; and Plaintiff was required to exhaust his administrative
remedies for those portions of his claims before raising them in
federal court.3

2015 WL 3965961, at *7.

Further, this Court

concluded that waiver of the exhaustion requirement was not
appropriate in this case.

Id. at *8.

3

Thus, the Medicare Act

Title XVIII of the Social Security Act, 79 Stat. 291 as
amended, 42 U.S.C. § 1395, et seq., is commonly referred to as
the “Medicare Act.”
3

Order dismissed with prejudice, inter alia, the portions of
Counts VII and VIII that challenge
the coordination of benefits for acts taken by
Defendants as plan providers for Plaintiff’s
Medicare plan. This includes, but is not limited
to, the process by which Defendants denied
Plaintiff’s initial requests for a new Group 3
PMD, the denials themselves, and any delay in
submission of the request to Plaintiff’s Medicaid
plan.
2015 WL 3965961, at *9 (footnote and citations omitted).

The

Medicare Act Order stated that the portions of Counts VII and
VIII challenging “decisions made and actions taken by Defendants
in their roles as coverage providers under Plaintiff’s Medicaid
Plan” remain.

Id.

Defendants did not move for reconsideration

of the Medicare Act Order, and therefore they concede – for
purposes of the remainder of the case before this Court – that
the Complaint contains allegations of actions and decisions by
Defendants – in their capacity as Medicaid coverage providers

–

which may form the basis of Plaintiff’s NIED and IIED claims.4
In the instant Motion, Defendants argue that this Court
must grant judgment on the pleadings in Defendants’ favor as to:
Plaintiff’s NIED claim because the Complaint does not allege that
Plaintiff suffered a physical injury; and Plaintiff’s IIED claim
because the Complaint does not allege the type of outrageous

4

This Court acknowledges that, if necessary, Defendants may
argue on appeal that this Court erred in the Medicare Act Order
by failing to grant judgment on the pleadings in favor of
Defendants as to Counts VII and VIII, in their entirety.
4

conduct that is necessary to support an IIED claim.5
DISCUSSION
The standards applicable to a motion for judgment on
the pleadings, pursuant to Fed. R. Civ. P. 12(c), were set forth
in this Court’s July 24, 2015 Order Granting Defendants’ Motion
for Judgment on the Pleadings for Count I (§ 1983) (“§ 1983
Order”).
I.

[Dkt. no. 57.6]

NIED
This district court has stated that:
The elements of a claim for negligent
infliction of emotional distress are: (1) that the
defendant engaged in negligent conduct; (2) that
the plaintiff suffered serious emotional distress;
and (3) that such negligent conduct of the
defendant was a legal cause of the serious
emotional distress. Tran v. State Farm Mut.
Automobile Ins. Co., 999 F. Supp. 1369, 1375 (D.
Haw. 1998). A cognizable claim for NIED under
Hawaii law also requires “physical injury to
either a person or property,” see Calleon v.
Miyagi, 76 Hawai`i 310, 876 P.2d 1278 (1994), or a
mental illness, see Haw. Rev. Stat. § 663–8.9.[7]

5

This Court does not construe the Motion as alleging that
Plaintiff’s NIED and IIED claims fail because Plaintiff cannot
identify any actions that Defendants took, or failed to take, in
their capacity as Medicaid coverage providers. However, this
Court notes that, at trial, Plaintiff must present evidence of
the specific actions and omissions by Defendants in their
capacity as Medicaid coverage providers that support her claims.
6

The § 1983 Order is also available at 2015 WL 4523499.

7

Haw. Rev. Stat. § 663-8.9 states:
(a) No party shall be liable for the negligent
infliction of serious emotional distress or
(continued...)
5

Ansagay v. Dow Agrosciences LLC, — F. Supp. 3d —, CIVIL NO.
15-00184 SOM/RLP, 2015 WL 9582710, at *13 (D. Hawai`i Dec. 29,
2015).

Defendants argue that they are entitled to judgment as a

matter of law on Plaintiff’s NIED claim because, even assuming
for purposes of the instant Motion that Plaintiff can establish
all of the other elements of the claim, the Complaint does not
allege a physical injury.8

Defendants acknowledge that the

Complaint “alleges general ‘pain and suffering,’” but they argue
that pain alone does not constitute an “actual physical injury to
Plaintiff.”

[Mem. in Supp. of Motion at 11-12 (emphasis

omitted).]

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(...continued)
disturbance if the distress or disturbance arises
solely out of damage to property or material
objects.
(b) This section shall not apply if the serious
emotional distress or disturbance results in
physical injury to or mental illness of the person
who experiences the emotional distress or
disturbance.

8

The Hawai`i Supreme Court has recognized exceptions to the
rule that a predicate physical injury is required to support an
NIED claim in cases with “unique circumstances, which provide the
requisite assurance that the plaintiff’s psychological distress
is trustworthy and genuine.” Doe Parents No. 1 v. State, Dep’t
of Educ., 100 Hawai`i 34, 70, 58 P.3d 545, 581 (2002). The
supreme court cited cases involving airline employees who were
knowingly exposed to human immunodeficiency virus contaminated
blood and cases involving the mishandling of a corpse. Id. The
instant case does not involve that type of “unique
circumstances.”
6

However, this Court does not construe Plaintiff’s
Complaint as alleging pain alone.

The Complaint also alleges

that Defendants’ conduct “caus[ed] him to suffer extreme
emotional distress, embarrassment, frustration, deterioration of
physical function and mobility, and despair for more than a
year.”

[Complaint at ¶ 3 (emphasis added).]

Although Plaintiff

does not expressly mention his deterioration of function in
Counts VII and VIII, both counts “reallege[] and incorporate[] by
reference the allegations contained in” all preceding paragraphs.
[Id. at ¶¶ 210, 217.]

In ruling on a motion for judgment on the

pleadings, this Court must “treat[] the complaint’s allegations
as true and draw[] all reasonable inferences in the plaintiff’s
favor.”

Howard v. Everex Sys., Inc., 228 F.3d 1057, 1060 (9th

Cir. 2000).

Reading the Complaint as a whole, it can be

reasonably inferred that Plaintiff’s pain described in Counts VII
and VIII was the result of the deterioration of physical function
that he allegedly suffered because of the delay in approving his
PMD requests.
This Court also notes that the predicate “physical
injury” supporting an NIED claim is a broad concept.

For

example, Hawai`i courts have held that plaintiffs’ “increased
blood pressure and body weight, constituted sufficient physical
injury to survive summary judgment on their NIED claim.”

Morioka

v. Lee, No. CAAP–13–0001761, 2016 WL 4251236, at *13 (Hawai`i Ct.
7

App. Aug. 27, 2014).

This Court therefore CONCLUDES that the

Complaint’s allegations of pain resulting from Plaintiff’s
deterioration of physical function is a sufficient physical
injury to preclude judgment on the pleadings on Plaintiff’s NIED
claim.
In addition, as previously noted, a NIED claim can also
be established by proving a mental illness.

Ansagay, 2015 WL

9582710, at *13; see also Morioka, 2016 WL 4251236, at *13
(stating that the final element of a NIED clam is “physical
injury to a person, property, or a mental illness”).

Counts VII

and VIII allege that, as a result of Defendants’ conduct,
Plaintiff suffered depression and anxiety.
225.]

[Complaint at ¶¶ 216,

Hawai`i courts have held that proof of “clinically

diagnosed depression and anxiety” was “sufficient evidence . . .
for a jury to conclude that [the plaintiff] suffered serious
emotional distress and that this emotional distress resulted in
mental illness.”

Certain Underwriters at Lloyd’s London

Subscribing to Policy No. LL001HI0300520 v. Vreeken, No. 30156,
2014 WL 2949463, at *6 (Hawai`i Ct. App. June 30, 2014).

In the

instant case, the Complaint does not allege that Plaintiff had a
clinical diagnosis of depression and anxiety.

However, drawing

all reasonable inferences from the Complaint in Plaintiff’s
favor, there is an issue of material fact as to whether
Plaintiff’s depression and anxiety rose to the level of a mental

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illness.

See Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir.

2014) (“[J]udgment on the pleadings is properly granted when
there is no issue of material fact in dispute, and the moving
party is entitled to judgment as a matter of law[.]” (citation
and internal quotation marks omitted)).
This Court therefore, at this stage of the litigation,
DENIES the Motion to the extent that Defendants seek judgment on
the pleadings as to Count VII, Plaintiff’s NIED claim.
II.

IIED
The Hawai`i courts “have adopted the Restatement

(Second) of Torts’ approach to IIED claims.

The elements of an

IIED claim are: ‘1) that the act allegedly causing the harm was
intentional or reckless, 2) that the act was outrageous, and
3) that the act caused 4) extreme emotional distress to
another.’”

Simmons v. Aqua Hotels & Resorts, Inc., 130 Hawai`i

325, 332, 310 P.3d 1026, 1033 (Ct. App. 2013) (quoting Hac v.
Univ. of Hawai`i, 102 Hawai`i 92, 106–07, 73 P.3d 46, 60–61
(2003)).

As to the element that the defendant’s act was

outrageous, the Hawai`i Supreme Court has stated:
“The term ‘outrageous’ has been construed to mean
without just cause or excuse and beyond all bounds
of decency.” Enoka v. AIG Hawai`i Ins. Co., Inc.,
109 Hawai`i 537, 559 128 P.3d 850, 872 (2006)
(citations and some internal quotation marks
omitted). “The question whether the actions of
the alleged tortfeasor are unreasonable or
outrageous is for the court in the first instance,
although where reasonable people may differ on
that question it should be left to the jury.”
9

Takaki v. Allied Machinery Corp., 87 Hawai`i 57,
68, 951 P.2d 507, 518 (App. 1998) (quotations and
quotation marks omitted).
Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666,
692 (2008).
The Hawai`i Supreme Court has also recognized that a
plaintiff may
state a claim for IIED because of his or her
relationship with the defendant. “The extreme and
outrageous character of the conduct may arise from
an abuse by the actor of a position, or a relation
with the other, which gives him actual or apparent
authority over the other, or power to affect his
interests.” Restatement [(Second) of Torts] § 46
comment e. “In this sense extreme ‘bullying
tactics’ and other ‘high pressure’ methods of
insurance adjusters seeking to force compromises
or settlements” may satisfy the conduct element.
Eckenrode v. Life of America Ins. Co., 470 F.2d 1,
4 (7th Cir. 1972) (citing Restatement [(Second) of
Torts] § 46 comment e) (“Insurer’s alleged bad
faith refusal to make payment on the policy,
coupled with its deliberate use of ‘economic
coercion’ (i.e., by delaying and refusing payment
it increased plaintiff’s financial distress
thereby coercing her to compromise and settle) to
force a settlement, clearly rises to the level of
‘outrageous conduct’ to a person of ‘ordinary
sensibilities.’”); Prosser and Keeton on Torts,
§ 12, at 62 (noting that plaintiffs may assert an
IIED claim to hold parties liable for engaging in
“outrageous bullying tactics” intending “to force
a settlement”).
Id. at 425, 198 P.3d at 688 (citation omitted).
Plaintiff alleges that Defendants: tried to persuade
him to not take some accessories in return for getting his PMD;
urged his specialists to change the accessories request; withheld
preauthorization coverage to pressure him and his specialists to
10

delete the accessories and force Plaintiff to do another
assessment; had an employee go to an assessment to pressure
Plaintiff to forgo accessories; and withheld preauthorization of
coverage for his PMD for one year.
122, 142, 219.]

[Complaint at ¶¶ 112, 121,

He also alleges that he was confined to his

apartment because he did not have the new PMD.

[Id. at ¶ 147a.]

Assuming – for purposes of the instant Motion – that
the Complaint’s factual allegations are true and drawing all
reasonable inferences in Plaintiff’s favor, this Court FINDS that
reasonable people may differ on whether Defendants’ alleged
conduct was the type of “bullying tactics intend[ed] to force a
settlement.”

In finding that reasonable people may differ, this

Court has also considered the fact that Count VI – Plaintiff’s
bad faith claim – remains pending.

Cf. Enoka, 109 Hawai`i at

559, 128 P.3d at 872 (affirming grant of summary judgment to the
defendant on the plaintiff’s IIED claim because, inter alia, the
supreme court did “not believe that the manner in which AIG
denied Enoka’s claim for no-fault benefits was in bad faith and,
thus, AIG’s conduct was reasonable”).

The evidence that

Plaintiff will present in support of his bad faith claim will
likely be relevant to the issue of whether Defendants’ conduct
was sufficiently outrageous to support an IIED claim.
This Court therefore FINDS that there are disputed
issues of material fact as to whether Defendants’ conduct was

11

sufficiently outrageous to support an IIED claim, and this Court
cannot conclude that Defendants are entitled to judgment as a
matter of law.

This Court DENIES Defendants’ Motion to the

extent that Defendants seek judgment on the pleadings as to
Count VIII, Plaintiff’s IIED claim.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Judgment on the Pleadings as to Counts VII (NIED) and VIII
(IIED), filed May 18, 2016, is HEREBY DENIED.
This Court is at a loss to understand why Defendants
chose not to file a motion for summary judgment on these issues
and instead to file a motion for judgment on the pleadings which
is here, as in most cases, an empty exercise.
Insofar as the dispositive motions deadline is now
closed, see Second Amended Rule 16 Scheduling Order, filed
6/16/16 (dkt. no. 109), at ¶ 7, the remaining claims – Counts IV,
VI, VII, and VIII – will proceed to trial.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, July 29, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JUAN RIOS QUINONES VS. UNITEDHEALTHCARE, INC., ET AL; CIVIL 1400497 LEK-RLP; ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON
THE PLEADINGS FOR COUNTS VII (NIED) AND VIII (IIED)

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