Quinones v. UnitedHealth Group Incorporated et al

Filing 271

AMENDED ORDER : (1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNTS IV, VI, VII, AND VIII; (2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON COUNT X OF PLAINTIFF'S SUPPLEMENTAL COMPLAINT; AND (3) DENYING AS MOOT PLAINT IFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT re 266 Order. Signed by JUDGE LESLIE E. KOBAYASHI on 04/18/2017. (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
)
)
Plaintiff,
)
)
vs.
)
)
)
UnitedHealth Group
Incorporated;
)
)
UnitedHealthcare, Inc.;
UnitedHealthcare Insurance
)
)
Co.,
)
)
Defendants.
_____________________________ )
Juan Rios Quinones,

CIVIL NO. 14-00497 LEK-RLP

AMENDED ORDER: (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON COUNTS IV, VI, VII, AND VIII; (2) GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT X OF PLAINTIFF’S
SUPPLEMENTAL COMPLAINT; AND (3) DENYING AS MOOT PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court are three motions for summary
judgment, all filed on October 24, 2016.

Defendants UnitedHealth

Group Incorporated, UnitedHealthcare, Inc., and UnitedHealthcare
Insurance Company (collectively “Defendants”) filed a Motion for
Summary Judgment on Counts IV, VI, VII, and VIII (“Defendants’
Summary Judgment Motion A”).

[Dkt. no. 210.1]

Plaintiff

Juan Rios Quinones (“Plaintiff”) filed a memorandum in opposition
on November 7, 2016, and Defendants filed a reply on November 14,
2016.

[Dkt. nos. 228, 233 (filed under seal).]

Defendants also

filed a Motion for Summary Judgment on Count X of Plaintiff’s

1

On October 31, 2016, Defendants filed the motion under
seal. [Dkt. no. 239.]

Supplemental Complaint (“Defendants’ Summary Judgment Motion B”).
[Dkt. no. 214.]

Plaintiff filed a memorandum in opposition on

November 7, 2016, and Defendants filed a reply on November 14,
2016.

[Dkt. nos. 226, 235 (filed under seal).]

Finally,

Plaintiff filed a Motion for Partial Summary Judgment
(“Plaintiff’s Summary Judgment Motion”).

[Dkt. no. 212.]

Defendants filed a memorandum in opposition on November 7, 2016,
and Plaintiff filed a reply on November 14, 2016.
(filed under seal), 237.]
on November 28, 2016.

[Dkt. nos. 224

All three motions came on for hearing

On December 28, 2016, the Court issued an

Entering Order ruling on all three motions (“12/28/16 EO”).
[Dkt. no. 262.]

This Order supersedes the 12/28/16 EO.

After

careful consideration of the motions, supporting and opposing
memoranda, the arguments of counsel, and for the reasons set
forth below:

Defendants’ Summary Judgment Motion A is HEREBY

GRANTED; Defendants’ Summary Judgment B is HEREBY GRANTED; and
Plaintiff’s Summary Judgment Motion is HEREBY DENIED AS MOOT.
BACKGROUND
The background of this case is well known to all
parties, and is 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

2

to Medicare Benefits (“Medicare Act Order”).

[Dkt. no. 49.2]

The Court will therefore only repeat the background that is
relevant to the instant motions.

In an Entering Order filed on

September 12, 2016 (“9/12/16 EO”), the Court noted that the
dispositive motions deadline had passed, but nevertheless granted
the parties leave to file motions for summary judgment on the
remaining claims.
those claims:

[Dkt. no. 192.]

The 9/12/16 EO also outlined

violation of Medicaid statutes and regulations, 42

U.S.C. §§ 1396-1396v and 42 C.F.R. § 435.930(a) (“Count IV”);
[Complaint, filed 10/31/14 (dkt. no. 1), at ¶¶ 180-88;] bad faith
(“Count VI”); [id. at ¶¶ 196-209;] negligent infliction of
emotional distress (“NIED” and “Count VII”); [id. at ¶¶ 210-16;
First Supplemental Complaint (“Suppl. Complaint”), filed 8/17/16
(dkt. no. 176), at ¶¶ 30-35;] intentional infliction of emotional
distress (“IIED” and “Count VIII”); [Complaint at ¶¶ 217-25;
Suppl. Complaint at ¶¶ 36-39;] and breach of the continuing duty
of good faith (“Count X”) [Suppl. Complaint at ¶¶ 40-45].
DISCUSSION
I.

Defendants’ Summary Judgment Motion A
A.

Count IV – Violation of
Medicaid Statutes and Regulations
The Complaint alleges that “Title XIX of the Social

Security Act requires that Medicaid services be furnished to
2

The Medicare Act Order is also available at 2015 WL
3965961.
3

eligible individuals without delay attributable to administrative
procedures,” and that Defendants “denied and unreasonably delayed
provision of medically necessary benefits to which Plaintiff was
entitled under his Medicaid-Medicare dual eligible enrollment.”
[Complaint at ¶¶ 182-83 (citing 42 U.S.C. § 1396a(a)(8);3 42
C.F.R. § 435.930(a)).4]

It is clear from the record, however,

that any delay in Plaintiff’s receipt of benefits was not caused
by Defendants, and Defendants never denied a request for Medicaid
coverage in the instant matter.5

3

42 U.S.C. § 1396(a)(8) states that “[a] State plan for
medical assistance must – provide that all individuals wishing to
make application for medical assistance under the plan shall have
opportunity to do so, and that such assistance shall be furnished
with reasonable promptness to all eligible individuals[.]”
4

42 C.F.R. § 435.930(a) states that “[t]he agency must –
Furnish Medicaid promptly to beneficiaries without any delay
caused by the agency’s administrative procedures[.]”
5

Plaintiff states that “Defendants’ unlawful administration
of Medicaid and Medicare benefits is actionable by Plaintiff
pursuant to 42 U.S.C. §§ 1983 and 1988, entitling Plaintiff to
compensatory damages.” [Complaint at ¶ 185.] Given this
representation, the Court questions whether Count IV is even
properly before the Court. On July 24, 2015, the Court issued
its Order Granting Defendants’ Motion for Judgment on the
Pleadings for Count I (§ 1983) (“7/24/15 Order”). [Dkt. no 57
(also available at 2015 WL 4523499).] The 7/24/15 Order
explained that “‘[t]o state a claim under § 1983, a plaintiff
must allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting
under the color of State law.’” 7/24/15 Order, 2015 WL 4523499,
at *2 (citing Esparza v. Cnty of Los Angeles, 527 F. App’x 638,
639 (9th Cir. 2013)). The Court found that Defendants were
entitled to judgment on the pleadings on Count I because
“Plaintiff has not alleged facts to show that the State has
(continued...)
4

1.

Plaintiff’s PMD and Medicare Benefits

It is undisputed that Plaintiff is eligible for both
Medicare and Medicaid, commonly referred to as being “dual
eligible.”

[Complaint at ¶ 7; Def.’s Concise Statement of Facts

in Supp. of Summary Judgment Motion A (“Defs.’ Summary Judgment
Motion A CSOF”), filed under seal on 10/31/16 (dkt. no. 241), at
¶ 1.]

Plaintiff’s benefits under both programs are coordinated

by Defendants.

[Complaint at ¶ 18; Defs.’ Summary Judgment

Motion A CSOF at ¶ 1.]

It is also undisputed that, due to his

medical conditions, Plaintiff uses a Personal Mobility Device
(“PMD”).

[Complaint at ¶ 8; Defs.’ Summary Judgment Motion A

CSOF at ¶ 2.]
In the Medicare Act Order, the Court explained,
“[s]ince Plaintiff’s coordination of benefits theory is
inextricably intertwined with a Medicare benefits decision,
. . . his claims arise at least in part under the Medicare Act,
and require Plaintiff to seek administrative review from the
[United States Secretary of Health and Human Services

5

(...continued)
exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in
law be deemed to be that of the State.” Id. at *5 (citation and
internal quotation marks omitted). Count IV also fails to show
any sort of “coercive power” or “significant encouragement” from
or by the State of Hawai`i. Defendants did not move for summary
judgment based upon this apparent flaw in Plaintiff’s claim, and
because the Court finds that there has been no violation of the
Medicaid statute, it will not address this issue in full.
5

(‘Secretary’)] before raising them in federal court.”
3965961, at *7.

2015 WL

Moreover, the Court reasoned:

The [United States] Supreme Court and the
Ninth Circuit [Court of Appeals] have held that
the test for whether a claim arises under the
Medicare Act is broad. See, e.g., Heckler [v.
Ringer], 466 U.S. [602,] 615 [(1984)] (explaining
that the Supreme Court has “construed the ‘claim
arising under’ language quite broadly” and
applying the “broad test”); Ardary v. Aetna Health
Plans of Cal., Inc., 98 F.3d 496, 500 (9th Cir.
1996) (recognizing that the Supreme Court
“instructed [it] to read the term ‘arising under’
broadly” (citing Heckler)). The result is no
different even though: Plaintiff does not request
a benefit or reimbursement for a benefit; some of
his remedies are injunctive rather than monetary;
or the lawsuit challenges the process by which
Defendants denied the benefit rather than purely
the substance of the denial.
Id. at *6 (some alterations in Medicare Act Order).6

Plaintiff

did not move for reconsideration of the Medicare Act Order.
Defendants seek dismissal of any part of the remaining
claims that relate to:

the repair and/or maintenance of

Plaintiff’s PMD; and the provision of or refusal to provide
Plaintiff with a loaner PMD.

[Mem. in Supp. of Def.’s Summary

Judgment Motion A at 29-30.]

Specifically, Defendants argue that

paragraphs 36, 73, 76-77, 79, 83, 148-49, and 206 of the

6

For the reasons expressed in the Medicare Act Order, the
Court refers to Defendants in the instant Order only in their
capacity as Plaintiff’s Medicaid provider. See, e.g., Medicare
Act Order, 2015 WL 3965961, at *9 (dismissing with prejudice
Plaintiff’s claims, including Counts VI, VII, and VIII, “insofar
as they challenge the coordination of benefits for actions taken
by Defendants as plan providers for Plaintiff’s Medicare plan.”
(footnote and citation omitted)).
6

Complaint, as well as paragraphs 2-3, 9-18, 30-35, and 40-45 of
the Supplemental Complaint, relate to PMD repair and maintenance,
as well as the provision of a loaner PMD.

[Id.]

Likely in an

effort to preempt this argument, the Supplemental Complaint
states, “[t]o be absolutely clear, Plaintiff’s claims are not
asserted herein, nor have they ever been asserted herein, against
his Medicare Advantage Special Needs Plan which [United
Healthcare (‘UHC’)] Defendants operate in Hawaii.”
Complaint at ¶ 2.]

[Suppl.

David W. Heywood (“Heywood”), Defendants’

Health Plan Chief Executive Officer for Hawai`i, submits:
Wheelchairs, repairs to wheelchairs, and the
coordination of loaner wheelchairs during the
repair process, are all benefits that are covered
by Medicare for dual eligible members. Under
these circumstances, the Medicare plan would need
to pay as primary coverage, or deny coverage for
those benefits, before the Medicaid plan would
have any coverage obligation.
[Def.’s Summary Judgment Motion A CSOF, Decl. of David W. Heywood
(“Heywood Decl.”) at ¶ 4.]
Plaintiff does not directly address this argument in
his opposition memorandum, but he does dispute it in his
supporting documents.

See Pltf.’s Concise Statement of Facts in

Opp. to Def.’s Summary Judgment Motion A (“Pltf.’s CSOF in Opp.
to Def.’s Summary Judgment Motion A”), filed 11/7/16 (dkt. no.
229), at ¶ 3.]

First, Plaintiff submits an email that quotes

7

language purportedly drafted by Heywood. [Id., Exh. 10.7]

That

language, however, does not in any way dispute that Medicare
would provide primary coverage for PMD maintenance or repairs, or
that Medicare would have to deny such a claim before Medicaid
would cover it.

Next, Plaintiff cites two depositions, but

neither the deposition of Dr. Ronald Fujimoto nor the deposition
of Jack Sanders (“Sanders”) contradict Defendants’ statement of
fact.

See Pltf.’s Concise Statement of Facts in Supp. of Pltf.’s

Summary Judgment Motion (“Pltf.’s CSOF in Supp. of Pltf’s Summary
Judgment Motion”), filed 10/24/16 (dkt. no. 213), Decl. of Rafael

7

It appears that Plaintiff did not authenticate any of the
documents attached to Plaintiff’s CSOF in Opposition to
Defendants’ Summary Judgment Motion A. The Court therefore does
not have to consider these documents. See, e.g., Ragan v. Fin.
Am., LLC, Civil No. 10-00187 JMS/BMK, 2011 WL 2457656, at *5 (D.
Hawai`i June 15, 2011) (“Although Plaintiff submitted exhibits
purporting to establish his annual insurance premiums on the
subject property, Plaintiff submitted no affidavit or declaration
authenticating them and the court therefore need not consider
them on summary judgment.” (footnote omitted) (citing Las Vegas
Sands, LLC v. Nehme, 632 F.3d 526, 532-33 (9th Cir. 2011)).
Because these documents do not prejudice the Defendants, and for
the sake of judicial economy, the Court will consider them. The
Court also notes, however, that Plaintiff attached a Declaration
of Sharon Skyward, RN (“Skyward Declaration 1”). See Pltf.’s
CSOF in Opp. to Defs.’ Summary Judgment Motion A, Skyward Decl.
1. This declaration is not signed, and also includes an exhibit
that is over one hundred pages long. An unsigned declaration
violates both 28 U.S.C. § 1746 and Rule 7.6 of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”). Moreover, Plaintiff was notified of
this omission on multiple occasions, including at the hearing on
the summary judgment motions. Plaintiff did not make any effort
to correct this glaring omission. Therefore the Court will not
consider Skyward Declaration 1 or the documents attached thereto.
8

Del Castillo (“Del Castillo Decl.”), Exh. 6 (9/15/16 Depo. Trans.
of Ronald Fujimoto, D.O. (“Pltf.’s Fujimoto Depo.”)), at 88-89
(describing the condition of Plaintiff’s PMD), 171 (describing
the type of PMD requested under Medicare); id., Exh. 9 (9/15/16
Depo. Trans. of Jack Sanders (“Pltf.’s Sanders Depo.”)), at 67-68
(also describing the condition of Plaintiff’s PMD).8

Finally,

Plaintiff cites 42 U.S.C. § 1396a(a)(8) and 42 C.F.R.
§ 438.210(d)(1), which similarly fail to contradict Defendants’
position.9

[Pltf.’s CSOF in Opp. to Defs.’ Summary Judgment

8

Pursuant to Local Rule 56.1(h), “[a]ffidavits or
declarations setting forth facts and/or authenticating exhibits,
as well as exhibits themselves, shall only be attached to the
concise statement.” Plaintiff did not attach Plaintiff’s
Fujimoto Deposition or Plaintiff’s Sanders Deposition to
Plaintiff’s CSOF in Opposition to Defendant’s Summary Judgment
Motion A. Moreover, the exhibit numbers Plaintiff cites are
wrong. In the future, Plaintiff’s counsel would be well served
by reviewing the Local Rules, as well as their own work.
9

Plaintiff also cites “Contract: 50.700,” “Dkt. 213-4 [RFP
at 278],” “Covenants: 80.340.7,” and “Dkt 213-7.” These
citations are, at best, incomplete. Local Rule 56.1(f) states,
in relevant part, “the court shall have no independent duty to
review exhibits in their entirety, but rather will review only
those portions of the exhibits specifically identified in the
concise statements.” Incomplete or indecipherable citations are
not “specifically identified.” As such, the Court is under no
duty to review these exhibits. However, for the sake of
completeness, the Court will attempt to do so. “Contract:
50.700” appears to reference to the contract between the State of
Hawai`i and Defendants regarding QUEST Expanded Access (“QExA
Contract”). See Del Castillo Decl., Exh. 2 (QExA Contract).
Thus, the incomplete citation is also a citation to a document
that is not part of Plaintiff’s CSOF in Opposition to Plaintiff’s
Summary Judgment Motion A. Section 50.700 of the QExA Contract
provides, inter alia, deadlines for informing a Medicaid insured
of preauthorization request decisions. Further, “Dkt. 213-4 [RFP
(continued...)
9

Motion A at ¶ 3.]

The Court concludes that Defendants’ statement

of facts is undisputed on this matter.

Given the Supreme Court’s

holding in Heckler, it is clear that Plaintiff’s claims regarding
maintenance and/or repair of his PMD, as well as issues related
to a loaner PMD, are inextricably intertwined with a Medicare
benefits decision, and must be dismissed.

The Court FINDS that

there is no question of material fact and Defendants are entitled
to judgment as a matter of law.

Insofar as they challenge an

alleged failure by Defendants to provide maintenance and repair
of Plaintiff’s PMD, and/or the denial of a loaner PMD, paragraphs
36, 73, 76-77, 79, 83, 148, 149, and 206 of the Complaint,
paragraphs 2-3, 9-18, 30-35, and 40-45 of the Supplemental
Complaint, and any other part of the Complaint or Supplemental
Complaint related to this matter are HEREBY DISMISSED.10

9

(...continued)
at 278]” appears to reference the Deposition of Amendeep Somal,
M.D, which is also part of a concise statement in support of a
separate motion, and does not discuss whether or not Medicare is
responsible for PMD repairs and maintenance. See id., Exh. 3
(7/18/16 Depo. Trans. of Amendeep Somal, M.D. (“Pltf.’s Somal
Depo.”)). The Court does not know what “Covenants: 80.340.7”
intends to cite, and it will therefore not be considered.
Finally, “Dkt. 213-7” is Plaintiff’s Fujimoto Deposition, where
he affirmed the statement “if the primary insurance denies,
Medicaid is secondary.” See Pltf.’s Fujimoto Depo. at 175. None
of these documents directly or even indirectly dispute Defendants
stated fact regarding PMD repairs.
10

Defendants also challenge Plaintiff’s claims regarding a
denial of a PMD request because Plaintiff’s Medicaid plan never
denied such a request. [Mem. in Supp. of Defs.’ Summary Judgment
Motion A at 26.] The Court finds that this issue, insofar as it
(continued...)
10

2.

Denial of Plaintiff’s PMD Requests

Defendants argue that Plaintiff’s Medicaid plan never
denied his PMD request.

[Mem. in Supp. of Def.’s Summary

Judgment Motion A at 26.]

Plaintiff asserts that the Medicaid

plan knew of his need for a PMD as early as February 5, 2013, and
that, because the Medicaid plan did not confirm that the PMD was
covered by Medicare, they had an obligation to provide him with a
new PMD.

[Mem. in Opp. to Def.’s Summary Judgment Motion A at

18.]
It is clear from the record that Plaintiff’s first
request for a new PMD was effectively submitted on February 5,
2013 (“First Request”), and that it was denied by Plaintiff’s
Medicare plan on February 19, 2013 (“First Denial”).11

[Heywood

10

(...continued)
relates to Plaintiff’s Medicare plan, was sufficiently covered in
the Medicare Act Order. Moreover, Plaintiff’s Medicaid benefits
are discussed infra. Further, Defendants seek dismissal of any
claims related to delays in Plaintiff’s applications when the
requests were not before Defendants as Plaintiff’s Medicaid
provider. [Id. at 27-28.] The Court finds that this issue, too,
was sufficiently covered in the Medicare Act Order.
11

Exactly who submitted the First Request is disputed. See
Def.’s Summary Judgment Motion A CSOF at ¶ 5 (“The first PMD
coverage request was submitted by Experea on 2/5/2013[.]”);
Pltf.’s CSOF in Opp. to Def.’s Summary Judgment Motion A at ¶ 5.1
(disputing Defendants’ position). It is clear from the record
that, while the First Request was likely submitted for the first
time on January 31, 2013, see First Denial at 879, it was
resubmitted after Plaintiff was notified on February 4, 2013 that
Plaintiff’s Medicare benefits provider could not read the
original form, see id. at 878 (2/4/13 letter informing Plaintiff
that his insurer could not read the form he submitted); id. at
(continued...)
11

Decl., Exh. B at 875 (First Denial); id. at 877 (First
Request).12]

The First Request included only Plaintiff’s

Medicare number.

[Heywood Decl. at ¶ 11.]

For dual eligible

parties, pre-authorization forms are first sent to the primary
insurer – in this case, Medicare.

[Id. at ¶ 3.]

submitted the First Request to his Medicaid plan.

Plaintiff never
[Id. at ¶ 12.]

On May 28, 2013 Plaintiff submitted a second request for preauthorization of a new PMD (“Second Request”), and it was denied
on June 11, 2013 (“Second Denial”).

[Id., Exh. E at 852 (Second

Request); id., Exh. C at 850 (Second Denial).]

The Second

Request also used Plaintiff’s Medicare number.
After the Second Denial, the request was transferred to
Plaintiffs’ Medicaid plan for possible coverage.

The Medicaid

plan received the Second Request on June 11, 2013, and began to
review it on June 12, 2013.

[Id., Exh. F (Defendants’ CareOne

Notification notes regarding Plaintiff’s PMD requests
(“Defendants’ Notes”)) at 767.]

The Medicaid plan determined

that it needed additional information, and requested an extension
in making its decision on the Second Request.

[Id. at 761-62.]

On June 25, 2013, Defendants informed Plaintiff that they would

11

(...continued)
877 (2/5/13 resubmission of request by Experea).
12

Many of the exhibits to the Heywood Declaration appear to
be consecutively paginated, but the page numbers are often hard
to see. The Court will therefore refer to the page numbers
assigned by Defendants during discovery.
12

need more time to make their decision, and that they would need
to make a home visit (“6/25/13 Letter”).13
G.]

[Heywood Decl., Exh.

On June 26, 2013, Dr. Fujimoto visited Plaintiff at home,

along with Sanders, Defendants’ Assistive Technology
Professional, Sharon Skyward (“Skyward”), Service Coordinator,
and Kirsten Hackworth, Service Coordinator Manager.

[Id., Exh. H

(Member Notes Report for Plaintiff from 6/26/13 to 1/9/14) at

13

The contract between the State of Hawai`i and Defendants
regarding QUEST Expanded Access states that:
For standard authorization decisions, the health
plan shall provide notice as expeditiously as the
member’s health condition requires but no longer
than fourteen (14) days following the receipt of
the request for service. An extension may be
granted for up to fourteen (14) additional days if
the member or the provider requests the extension,
or if the health plan justifies a need for
additional information and the extension is in the
member’s interest.
[Heywood Decl., Exh. U (QExA Contract) at 278.] Moreover, the
QExA contract sets forth a deadline for informing a covered party
of a denial of a request for coverage:
For standard service authorization decisions that
deny or limit services: as expeditiously as the
member’s health condition requires, but not more
than fourteen (14) days following receipt of
request for service, with a possible extension of
up to fourteen (14) additional days (total time
frame allowed with extension is twenty-eight (28)
days from the date of the request for services if
(1) the recipient or provider requests an
extension or (2) the health plan justifies a need
for additional information and how the extension
is in the member’s interest.
Id. at 291.
13

34.]

Because Dr. Fujimoto believed that Medicare would cover a

new PMD for Plaintiff if the request were submitted properly, on
July 5, 2013, Sanders and Dr. Fujimoto had a web conference with
Plaintiff’s physical therapist, Debra Horiuchi, D.P.T.14

[Defs.

Summary Judgment Motion A CSOF, Decl. of Ronald Fujimoto, D.O.
(“Fujimoto Decl.”) at ¶ 6.]

During the web conference,

Dr. Fujimoto asked “Dr. Horiuchi to withdraw the request and
submit a corrected request” in order to “expedite the approval
process through Medicare and Medicaid, rather than going through
the appeal process.”

[Id. at ¶ 7.]

Thereafter, Dr. Horiuchi

withdrew the Second Request, no decision was made on the Second
Request, and Defendants therefore did not provide Plaintiff with
any notice of decision.

[Id. at ¶¶ 7-9.]

On July 26, 2013, Experea, the PMD vendor, was
instructed to make changes to Plaintiff’s Medicare PMD
application, [Heywood Decl., Exh. S (9/26/16 Depo. Trans. of
Liane Otake) at 153-55,] and, on August 16, 2013, Experea
confirmed that it did so [id., Exh. R (8/16/13 email from
Kevin Phillips at Experea Healthcare to Liane Otake)].

However,

Wheelchair Professionals, the PMD provider (“WCP”), did not
submit the third PMD request until November 1, 2013 (“Third

14

Dr. Horiuchi married in 2012, and currently goes by the
last name Uechi. However, during the events at issue here, she
still went by Horiuchi, her maiden name, at work. [Heywood Decl,
Exh. K (9/12/16 Depo. Trans. of Debra Lynne Uechi, DPT, aka Debra
Lynne Horiuchi, DPT (“Defs.’ Horiuchi Depo.”)) at 6-7.]
14

Request”).

[Id., Exh. L.]

On November 7, 2013, WCP informed

Sanders that Plaintiff had told them that he would not accept any
PMD that did not include everything that he had requested, and
that they were retracting the quote.

[Id., Exh. M (11/7/13 email

from Hillary Duran, Manager of Central Order Processing at WCP,
to Sanders).]

On November 9, 2013, the Third Request was denied.

[Defendants’ Notes at 781; Heywood Decl., Exh. N (Medicare denial
of Third Request).]
Medicaid began reviewing the Third Request on
November 11, 2013, [Defendants’ Notes at 781,] and approved
coverage of the PMD on November 19, 2013 (“11/19/13
Authorization”) [Heywood Decl., Exh. O (11/19/13 Authorization)].
Because he had not received the PMD by December 12, 2013,
Plaintiff submitted a grievance to his Medicaid plan (“12/12/13
Grievance”).

[Id., Exh. P (1/10/14 response to 12/12/13

Grievance (“1/10/14 Response”)).]

The 1/10/14 Response explained

that WCP informed Defendants that it was waiting on additional
items that needed to be added to the PMD, but approval of those
items was only requested by WCP on December 30, 2013.

[Id.]

Because the 11/19/13 Authorization expired on 12/31/13, a new
authorization had to be opened.

[11/19/13 Authorization at 467

(showing expiration date of 12/31/13); Defendants’ Notes at 792.]
On January 10, 2014, Dr. Horiuchi conducted a new PMD assessment
that removed certain accessories that had previously been

15

requested (“1/10/14 Assessment”).15

[Heywood Decl., Exh. Q.]

On

January 13, 2014, the Medicaid plan received a new request
(“Fourth Request”), and it was approved the same day.
[Defendants’ Notes at 784.]
received a new PMD.

Finally, in February 2014, Plaintiff

[Heywood Decl., Exh. A (6/10/16 Depo. Trans.

of Juan Rios Quinones (“Quinones Depo.”) at 121.]
Plaintiff’s efforts to challenge this progression of
events falls flat.

First, Plaintiff argues that he did not

receive the 6/25/13 Letter, and that he was not notified that any
of his healthcare providers received it.

[Pltf.’s CSOF in Opp.

to Def.’s Summary Judgment Motion A, Decl. of Juan Rios Quinones
(“Quinones Decl.”) at ¶¶ 3-4.]

Plaintiff, however, does not

assert that the 6/25/13 Letter was not sent, or that the request
itself violated the relevant regulations.16

Next, Plaintiff

15

In her note about the 1/10/14 Assessment (“1/10/14
Progress Note”), Dr. Horiuchi explained that “[Plaintiff] was
agreeable to all of the documented changes and report with spec
sheet was submitted to Experea for processing.” [Heywood Decl.,
Exh. D.]
16

Plaintiff also disputes the list of information in the
6/25/13 Letter. See Pltf.’s CSOF in Opp. to Def.’s Summary
Judgment Motion A at ¶ 19; id., Decl. of Sharon Skyward, RN (No.
3) (“Skyward Decl. 3”) at ¶¶ 6-8. The Court notes that the
Skyward Declaration 3 does not appear to have actually been
signed by Skyward at any point, but instead looks like a copy of
a copy of Skyward’s signature. See Skyward Decl. 3 at pg. 6.
This is a violation of both 28 U.S.C. § 1746 and Local Rule 7.6.
Even if the declaration complied with the relevant rules, the
cited testimony does not undermine Defendants’ argument. Skyward
alleges that she disagreed with 6/25/13 Letter, prepared
“booklets” to show the relevant parties where the information
(continued...)
16

alleges that there was an ulterior motive to Dr. Fujimoto’s
suggestion that Dr. Horiuchi withdraw the Second Request.

See,

e.g., Pltf.’s CSOF in Opp. to Summary Judgment Motion A at ¶ 33
(“Purpose was to attempt, speculatively, to establish the
liability of the Medicare Plan.”).

Plaintiff does not cite any

documents to support this allegation, likely because it is not
supported by the record.

Dr. Fujimoto believed that, although

Medicare would not approve a “power elevating seat,” he “intended
to add that feature to the base wheelchair under Plaintiff’s
Medicaid coverage once Medicare had covered what it would cover.”
[Fujimoto Decl. at ¶ 5.]

To that end, Dr. Fujimoto suggested

that Dr. Horiuchi withdraw the Second Request and submit a new
one, which he believed would save time.

[Id. at ¶ 7.]

Further,

any attempt by Plaintiff to establish that Dr. Fujimoto’s
communications with Dr. Horiuchi were misleading or illintentioned, see Pltf.’s CSOF in Opp. to Defs.’ Summary Judgment
Motion A at ¶ 32, is unfounded.

In response to questions from

Plaintiff’s attorney at her deposition, Dr. Horiuchi explained
how she came to the decision to withdraw the Second Request:

16

(...continued)
requested was located in the records they already had, and
provided these booklets to the other home visit attendees “at the
beginning of the home visit.” [Skyward Decl. 3 at ¶¶ 5-7.] None
of this information contradicts the facts that Defendants
believed they needed more information, that they set up a home
visit, and that they attended that home visit.
17

Q

Yeah. You testified earlier that
Dr. Fujimoto told you that in order to
facilitate and get [Plaintiff’s] wheelchair
approved more quickly, it was best to
withdraw the request. Is that an accurate
restatement of what you said?

A

It is an accurate restatement. I’m – I do
want to go on record as saying that part of
that is a little bit of a guess, because,
again, I’m very fuzzy on what happened in
those meetings.

Q

Sure. Understood. And you did testify that
you at least understood Dr. Fujimoto to the
extent that [Plaintiff’s wheelchair] would be
delayed or denied further if you didn’t
withdraw the request. Is that an accurate
restatement of what you said?

A

I think – I think a better way to say that
would be that withdrawing and resubmitting
the request would be faster than allowing the
current process to continue.

Q

Okay. So from – do you have any memory
whatsoever of having an understanding or
having been given a reason why the process
was stopped or slowed in the case that you
had submitted?

A

Yes, and I know that a reason was given.

Q

Okay.

A

What that reason is, I’m fuzzy on. I know
that it had to do with the insurance
protocols and like how things are – the
process of approvals and denials, and where
paperwork goes during that process, but I
don’t know exactly what they told me. I just
– I knew that he was trying to fix this – fix
the situation, and so he did what was
recommended at the time.

[Pltf.’s CSOF in Opp. to Defs.’ Summary Judgment Motion A,
Exh. 12 (9/12/16 Depo Trans. of Debra Lynne Uechi, DPT, aka Debra
18

Lynne Horiuchi, DPT (“Pltf.’s Horiuchi Depo.”)) at 171-72.]
Moreover, in response to a question from Defendants’ attorney
about a phone call from Dr. Fujimoto, Dr. Horiuchi replied that,
“if it was Dr. Fujimoto’s recommendation to withdraw and resubmit
the request, then we would have complied, because our
understanding was that we were moving forward with the best
intentions.”

[Id. at 189.]

Plaintiff provides no evidence to

show that Dr. Fujimoto’s intentions were anything to the
contrary.
Third, Plaintiff argues that he was the only person who
could withdraw the Second Request.

The only evidence he provides

to support this position, however, is an answer from Dr. Fujimoto
at his deposition explaining that there was no “specific
authority” that he relied on when he suggested that Dr. Horiuchi
withdraw the Second Request.

See Pltf.’s Fujimoto Depo. at 176.

Plaintiff does not address Dr. Fujimoto’s assertion that,
“[b]ecause preauthorization requests must be submitted by the
member’s treating provider, the provider can agree to withdraw
the request.”

[Fujimoto Decl. at ¶ 7.]

In fact, “[i]t is not

uncommon for a treating provider to withdraw a preauthorization
request and submit an improved request, based on discussions with
the health plan, rather than have the request be denied.”
Plaintiff also alleges that Defendants violated relevant
regulations when they failed to notify him that the Second

19

[Id.]

Request was withdrawn, see Pltf.’s CSOF in Opp. to Defs.’ Summary
Judgment Motion A at ¶ 37, but, again, the evidence he cites does
not support his claim.

See Pltf.’s Fujimoto Depo. at 134

(stating that Defendants are responsible for keeping insurance
members informed of what is happening with their benefit
requests); Pltf.’s Horiuchi Depo. at 186 (admitting that
Plaintiff had a right to know that the Second Request was
withdrawn).

In addition, Dr. Horiuchi admitted that it was

likely her responsibility to inform Plaintiff of the withdrawal.
See Defs.’ Horiuchi Depo. at 184.17
Finally, Plaintiff disputes the approval and
sufficiency of the PMD that was finally provided to him.

First,

Plaintiff takes issue with Defendants’ assertion that the
11/19/13 Authorization was an approval of Medicaid coverage
because it was “not approved unless and until Plaintiff was
reassessed.”

[Pltf.’s CSOF in Opp. to Defs.’ Summary Judgment

Motion A at ¶ 51.1.]

Plaintiff does not dispute that the

17

Plaintiff’s challenges to this argument are equally
unconvincing. First, Plaintiff cites the same passage from
Dr. Fujimoto’s deposition that he cited to support his position
that Defendants had an obligation to notify Plaintiff of the
withdrawal, and that the Court has already rejected. See Pltf.’s
CSOF in Opp. to Def.’s Summary Judgment Motion A at ¶ 39.
Second, he cites a separate passage from Dr. Horiuchi’s
deposition that does not speak to which party had the
responsibility to notify Plaintiff of the withdrawal. See
Pltf.’s Horiuchi Depo. at 188 (“I – I think [Plaintiff] should
have known when the request got withdrawn. I cannot say that I
did or didn’t do it, though, and that’s – that’s it.”).
20

11/19/13 Authorization expired on December 31, 2013, or that,
after Plaintiff rejected the PMD specified in the 11/19/13
Authorization, WCP did not request approval for certain
additional accessories until December 30, 2013.

Thus, it is

clear form the record that the 11/19/13 Authorization was not
“conditional,” but that it expired, which required a new
assessment.

It is also clear from the record that the 1/10/14

Assessment and the 1/10/14 Progress Note provided Plaintiff with
a medically sufficient PMD.

Plaintiff challenges this factual

assertion by citing the deposition of Plaintiff’s doctor,
Amendeep Somal, M.D.

[Pltf.’s CSOF in Opp. to Def.’s Summary

Judgment Motion A at ¶ 62.]

At her deposition, Dr. Somal

indicated that, at Plaintiff’s appointment in July 2012, it was
clear that “[h]e needed a new chair” and, “based on his mobility
level at the time, the physical therapists and I did a wheelchair
prescription for what we thought was medically necessary for him
to become independent again, following the surgery.”

[Id., Exh.

14 (7/18/16 Depo. Trans. of Amendeep Somal, M.D.) at 3.18]

Upon

further questioning, however, Dr. Somal corrected her previous
statement:
A

You had asked in the past about why there was
no wheelchair prescription, and I think the
reason is we weren’t able to prescribe the

18

The page numbers of the deposition are very hard to read,
and the Court will therefore refer to the page numbers assigned
by this district court’s electronic case filing system.
21

wheelchair at the time because we didn’t have
anyone doing these type of specialty
prescriptions. And that’s why [Plaintiff]
was referred to Kapiolani.
Q

So am I correct then that your testimony
earlier that there was a wheelchair
prescription from [Plaintiff’s] time as an
inpatient at Rehab Hospital of the Pacific,
that testimony is incorrect; is that right?

A

I believe so. If I’m thinking back, Like I
said, we weren’t able to perform wheelchair –
seating at – it’s called a seating and
positioning evaluation, a wheelchair seating
and positioning evaluation. And we were not
doing them at that time.
So our inpatient therapists do make
recommendations. But when it comes to
specialty wheelchairs, like power seating and
that kind of stuff, that prescription may not
have gone anywhere, because our therapists
weren’t qualified to do ‘em at the time.

[Defs.’ Concise Statement of Facts in Opposition to Pltf.’s CSOF
in Opp. to Defs.’ Summary Judgment Motion A, filed under seal on
11/14/16 (dkt. no. 234), Decl. of Dianne Winter Brookins, Exh. V
(7/18/16 Depo. Trans. of Amendeep Somal, M.D.) at 66.]

Thus,

Dr. Somal and her staff could not make the proper assessment, and
Plaintiff’s argument must be rejected.19

19

At her deposition, Dr. Horiuchi explained why she removed
certain accessories from Plaintiff’s PMD. See Defs.’ Horiuchi
Depo. at 86-88, 91, 129-29, and 139-45. Further, while Plaintiff
contests Dr. Horiuchi’s representation in the 1/10/14 Progress
Note that he agreed to the changes to the PMD, [Quinones Decl. at
¶ 29 (“My ‘agreement’ to delete the power elevating legrests was
obtained under extreme duress because I could not endure another
delay so I [had] no choice.”),] Plaintiff does not assert that he
made this known to Dr. Horiuchi, or that she had any reason to
(continued...)
22

In sum, Defendants considered a request for coverage of
Plaintiff’s PMD on two occasions.

When Defendants received the

Second Request, they stated that they needed additional time – as
permitted by the applicable regulations – and the Second Request
was withdrawn before Defendants had to make a decision.

When

Defendants received the Third Request, they approved it within
the allotted time, but there were delays unrelated to Defendants’
actions or control.

As a result of the delays, a new assessment

had to be completed, a Fourth Request was submitted, and
Plaintiff received his PMD in early February 2014.

Therefore,

with regard to Count IV, Defendants did not take any action that
violated the Medicaid statute or regulations, nor did they ever
exceed the time allotted for them to make a decision on
Plaintiff’s requests.

The Court FINDS that there is no question

of material fact, and CONCLUDES that Defendants are entitled to
judgment as a matter of law as to Count IV.
B.

Count VI – Tort of Bad Faith
Plaintiff alleges that Defendants committed the tort of

bad faith by, inter alia: “withholding approval of Plaintiff’s
PMD to secure his agreement to a lesser benefit than the benefit
to which he was entitled”; “withholding . . . medically necessary
benefits”; refusing to replace the joystick on Plaintiff’s PMD;

19

(...continued)
suspect that his agreement was not genuine.
23

refusing to provide Plaintiff with a loaner PMD; and “damag[ing]
the very protection or security which Plaintiff was entitled to
expect from a health insurer in Hawai`i.”
201, 205-07.]

[Complaint at ¶¶ 199,

Defendants counter argument is twofold:

(1) “Plaintiff’s claim for bad faith mishandling of his claim for
a new wheelchair based on Dr. Fujimoto having performed a medical
necessity analysis cannot be sustained”; and (2) “Plaintiff has
not alleged any conduct by his UHC Medicaid plan that rises to
the level of ‘bad faith mishandling’ of his claim for a new
wheelchair.”
at 37, 42.]

[Mem. in Supp. of Defs.’ Summary Judgment Motion A
Plaintiff’s only defense of Count VI is his

assertion that, pursuant to 42 C.F.R. § 433.139(c),
“[Defendants’] speculation that Medicare should pay the claim was
an insufficient basis, as a matter of law, for refusing to
approve and pay the claim.”

[Mem. in Opp. to Defs.’ Summary

Judgment Motion A at 18 (emphasis in original).]
This Court has stated:
Hawai`i courts have recognized that “every
contract contains an implied covenant of good
faith and fair dealing that neither party will do
anything that will deprive the other of the
benefits of the agreement.” Best Place, Inc. v.
Penn Am. Ins. Co., 82 Hawai`i 120, 123-24, 920
P.2d 334, 337-38 (1996) (citations omitted).
“Good faith performance ‘emphasizes faithfulness
to an agreed common purpose and consistency with
the justified expectations of the other party.’”
Hawaii Leasing v. Klein, 5 Haw. App. 450, 456, 698
P.2d 309, 313 (1985) (quoting Restatement (Second)
of Contracts § 205 cmt. a (1981)). This district
court, however, has observed that:
24

Hawai`i courts have not recognized a
separate tort cause of action for bad faith
or breach of the duty of good faith and fair
dealing based upon any type of contract in
any circumstances. Moreover, in Francis v.
Lee Enterprises, Inc., 89 Hawai`i 234, 971
P.2d 707, 711-12 (1999), the Hawai`i Supreme
Court stressed the importance that claims of
bad faith be limited to the insurance context
or situations involving special relationships
characterized by elements of fiduciary
responsibility, public interest, and
adhesion. . . .
Sung v. Hamilton, 710 F. Supp. 2d 1036, 1050 (D.
Hawai`i 2010).
Flynn v. Marriott Ownership Resorts, Inc., 165 F. Supp. 3d 955,
981-82 (D. Hawai`i 2016) (some internal quotation marks omitted).
As the Court has previously discussed, Plaintiff has not
identified any action by Defendants that violated the relevant
statutes or the contract at issue.

Instead, Defendants have

shown that, on two different occasions they received an
application for Medicaid coverage of Plaintiff’s PMD, and on both
occasions, they acted properly.
Moreover, Plaintiff’s reference to § 433.139(c) is
wholly inapplicable here.

Section 433.139(c) states:

Probable Liability is not established or benefits
are not available at the time is filed. If the
probable existence of third party liability cannot
be established or third party benefits are not
available to pay the beneficiary’s medical
expenses at the time the claim is filed, the
agency must pay the full amount allowed under the
agency’s payment schedule.

25

Here, Plaintiff’s Medicaid plan never denied his request for
coverage – the first time that they were presented with a claim,
it was withdrawn, and the second time it was approved.

Moreover,

Plaintiff’s assertion that Defendants “should have accepted the
claim on February 5, 2013,” or “at the very latest . . . when it
determined that the PMD was medically necessary on July 5, 2013,”
is factually impossible.

Defendants did not even receive the

Second Request until June 11, 2013, and it was withdrawn shortly
after July 5, 2013.

See supra at Section I.A.2.

nothing for Defendants to approve.20

Thus, there was

The Court FINDS that there

is no question of material fact, and CONCLUDES that Defendants
are entitled to judgment as a matter of law on Count VI.

20

The case law that Plaintiff cites to support his claim is
not binding on this Court, and, even if it were, is inapplicable
to this case. See Mem. in Opp. to Defs.’ Summary Judgment Motion
A at 14-18. In Miller v. Wladyslaw Estate, a plaintiff was
injured, and the treating hospital filed a statutory lien against
any settlement the plaintiff received from a company involved in
the collision with the plaintiff. 547 F.3d 273, 276 (5th Cir.
2008). The Fifth Circuit held that the hospital had a preexisting lien and that, even though the plaintiff became Medicaid
eligible in the interim, the lien was still valid. Id. at 285.
In Duke University Medical Center v. Bruton, a North Carolina
state appellate court held that the state Medicaid program could
not deny Medicaid payments to patients who were eligible for
Medicare, but had not applied for Medicare benefits. 516 S.E.2d
633, 641 (1999). Finally, Plaintiff cites Hunter v. Chiles, in
which a federal district court in Florida concluded that the
state Medicaid program could not deny a medically necessary
device because of speculation that “other payors” may exist. 944
F. Supp 914, 922 (S.D. Fla. 1996). The identity of the “other
payors” is not specified. Here, Defendants did not deny
Plaintiff’s requests based on third-party liability. In fact,
they did not deny Plaintiff’s requests at all.
26

3.

Counts VII and VIII – Emotional Distress

Defendants also seek summary judgment on Plaintiff’s
emotional distress claims.

Defendants correctly point out that,

under Hawai`i law, “before the issue of damages (emotional
distress and others) may be considered, the plaintiff must first
prove liability for bad faith, i.e., that the defendant insurer
breached its implied covenant of good faith and fair dealing in
its dealings with its insured.”

Miller v. Hartford Life Ins.

Co., 126 Hawai`i 165, 178, 268 P.3d 418, 431 (2011).21

Because

the Court has granted the motion as to Counts IV and VI,
Plaintiff cannot maintain Counts VII and VIII.

The Court FINDS

that there is no question of material fact and CONCLUDES that
Defendants are entitled to judgment as a matter of law on Counts
VII and VIII.

Defendants’ Summary Judgment Motion A is therefore

GRANTED.

21

Miller was originally filed in a Hawai`i state court, but
was removed to federal district court. 126 Hawai`i at 172, 268
P.3d at 425. The plaintiff in Miller brought claims against the
defendant for “(1) insurer bad faith, breach of implied covenant
of good faith and fair dealing; (2) negligent infliction of
emotional distress (NIED); (3) intentional infliction of
emotional distress (IIED); and (4) punitive damages.” Id.
(footnote omitted). The United States District Court for the
District of Hawai`i certified three questions to the Hawai`i
Supreme Court. Id. at 166, 268 P.3d at 419.
27

II.

Defendants’ Summary Judgment Motion B
A.

Count X – Breach of Continuing Duty of Good Faith
Defendants’ Summary Judgment Motion B seeks summary

Judgment on Count X for breach of the continuing duty of good
faith.
16-18.]

[Mem. in Supp. of Defs.’ Summary Judgment Motion B at 1,
Defendants argue that “Hawai`i has not recognized a

cause of action for ‘malicious defense,’ which is essentially
what Plaintiff’s ‘bad faith litigation tactics’ claim in his
Supplemental Complaint purports to be.”
Summary Judgment Motion B at 1.]

[Mem. in Supp. of Defs.’

Plaintiff counters that the

malicious defense can be the basis for some kinds of recovery
under Hawai`i tort law.22

[Mem. in Opp. to Defs.’ Summary

Judgment Motion B at 12-14.]
In Young v. Allstate Insurance Co., the Hawai`i Supreme
Court held that:

22

The Court notes that Plaintiff does not dispute that he
is bringing a claim for malicious defense, and the Court will
therefore treat Count X as such. See, Mem. in Opp. to Defs.’
Summary Judgment Motion B at 12 (section heading stating that
“Malicious Defense Conduct Can Be the Basis for The Recovery Of
Emotional Distress Damages Under Hawai`i Law”). Moreover, much
of the memorandum in opposition to Defendants’ Summary Judgment
Motion B concerns Plaintiff’s claims related to the repair and
maintenance of his PMD, as well as issues related to a loaner
PMD. See Mem. in Opp. to Defs.’ Summary Judgment Motion B at 25, 10-11. The Court has already dismissed any claims related to
these issues for the reasons set forth in the Medicare Act Order,
which have been explained and emphasized many times during the
course of this litigation. See supra at § I.A.1.
28

This jurisdiction has not previously recognized a
malicious defense claim, and we decline to do so
now. We do not believe that recognizing the tort
of malicious defense is necessary where (1) the
threat of subsequent litigation will have a
chilling effect on a party’s legitimate defenses,
and (2) existing rules and tort law compensate
plaintiffs for the harm they suffer when
defendants’ litigation tactics are brought in bad
faith. Moreover, it is not appropriate to derive
the tort of malicious defense from the tort of
malicious prosecution where the tort of malicious
prosecution remedies harms resulting from the
initiation of a lawsuit. Accordingly, we affirm
the circuit court’s order dismissing [the
plaintiff’s] malicious defense claim.
119 Hawai`i 403, 416, 198 P.3d 666, 679 (2008) (emphasis in
Young).

In Young, the supreme court also explained that, “[i]n

our view . . . such offenses are sufficiently deterred by
Hawaii’s rules and statutes that authorize the court to sanction
the malicious defendant, and the tort of IIED.
tort of malicious defense is unnecessary.”

Accordingly, the

Id. at 423, 198 P.3d

at 686 (footnotes and citations omitted).
Plaintiff does not dispute the holding in Young, but
attempts to distinguish it by asserting that, in that case, the
Hawai`i Supreme Court determined that the defendant insurance
company did not owe a duty of good faith and fair dealing to the
plaintiff “[b]ecause there was no contractual relationship
between them.”

[Mem. in Opp. to Defs.’ Summary Judgment Motion B

at 12 (citation omitted).]

Plaintiff does not cite to any

relevant case law that supports his position that his contractual
relationship with Defendants provides him with a cognizable cause
29

of action for malicious defense under Hawai`i law.

Nor does he

cite any reason why the Court should deviate from the reasoning
provided by the state supreme court in Young.
not see any reason to do so.

This Court does

Because Hawai`i law does not

recognize a tort of malicious defense, the Court FINDS that there
is no question of material fact and CONCLUDES that Defendants are
entitled to judgment as a matter of law on Count X.
B.

Emotional Distress Claims
Defendants’ Summary Judgment Motion B also seeks a

ruling in their favor on Plaintiff’s emotional distress claims.
First, Plaintiff’s NIED claim in the Supplemental Complaint
relates to either delaying or denying preauthorization of
Plaintiff’s PMD.

[Suppl. Complaint at ¶¶ 30-35.]

already determined that Defendants:

The Court has

(1) were not responsible for

any delay in the preauthorization of Plaintiff’s PMD; and (2) did
not deny preauthorization for Plaintiff’s PMD.

“Although both

IIED and NIED are independent torts, there still must be some
underlying intentional or negligent action undertaken by the
defendant in order to render the IIED/NIED claim cognizable.”
Calleon v. Miyagi, 76 Hawai`i 310, 320, 876 P.2d 1278, 1288
(1994).

Accordingly, the Court FINDS that there is no question

of material fact and CONCLUDES that Defendants are entitled to
judgment as a matter of law on Plaintiff’s NIED claims in the
Supplemental Complaint.

30

Similarly, and for the same reasons, insofar as
Plaintiff’s IIED claim in the Supplemental Complaint relates to
an alleged delay or denial of Plaintiff’s Medicaid benefits, the
Court FINDS that there is no question of material fact and
CONCLUDES that Defendants are entitled to judgment as a matter of
law.

However, Plaintiff also submits that Young allows for an

IIED claim based on an opposing party’s litigation tactics.
[Mem. in Opp. to Defs.’ Summary Judgment Motion B at 12-14.]
A plaintiff may, however, 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 the same way, a plaintiff may assert a
claim for IIED for suffering from the defendant’s
conduct during a prior lawsuit. A party is not
liable for merely “insist[ing] upon his legal
rights in a permissible way,” Restatement § 46
comment g, but it may be liable for its conduct in
the prior litigation that is not justifiable. In
other words, the elements of IIED – though
narrower and more refined than that of the tort of
malicious defense – do not preclude a successful
plaintiff from seeking damages for suffering from
a third party’s conduct in a previous lawsuit.
. . . . As part of Allstate’s litigation
tactics, Allstate offered [the plaintiff] merely
$5,000 to settle her claims, then raised its offer
to $5,300, even though it was aware that its
insured was liable for the accident and that her
medical expenses from the accident exceed this
offer. Additionally, we believe that the
complaint plainly alleged [the first, third, and
fourth element of IIED] by averring that the
31

Defendants’ intentional conduct caused [the
plaintiff] to experience severe anxiety, worry,
fear, and mental and emotional distress.” See
also Fletcher v. Nat’l Life Ins. Co., 10 Cal. App.
3d 376, 89 Cal. Rptr. 78 (1970) (affirming the
$250,000 judgment against the defendants, an
insurance company and its claims supervisor, where
defendants refused to make payments under the
insured’s policy and acted for the purpose of
causing the plaintiff to settle a nonexistent
dispute). Consistent with the tort of IIED, a
defendant should be held liable for a subsequent
lawsuit if he or she engaged in outrageous conduct
causing the plaintiff distress.
Young, 119 Hawai`i at 425-26, 198 P.3d at 688-89 (some
alterations in Young).
The litigation tactics noted in the Supplemental
Complaint include allegedly:

making false statements about when

Defendants received Plaintiff’s request for a replacement PMD;
threatening Skyward regarding subpoenaed documents; threatening
Morris Mitsunaga, M.D., about the length of his deposition; and
threatening Kyle Mitsunaga, M.D., also regarding his deposition.
[Suppl. Complaint at ¶¶ 24-25.]

These allegations involve third

parties, and are not based upon Defendants’ direct interactions
with Plaintiff.23

In addition, Plaintiff’s claim does not

23

Even if the Court were to find that Plaintiff brings the
type of IIED claim contemplated in Young, Plaintiff’s claim would
still fail. “[T]he tort of IIED consists of four elements: 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.” Young, 119
Hawai`i at 429, 198 P.3d at 692 (footnote, citation, and internal
quotation marks omitted). None of the conduct alleged by
Plaintiff is outrageous. See Enoka v. AIG Haw. Ins. Co., 109
(continued...)
32

concern a previous lawsuit in which Plaintiff was successful.24
The Court therefore FINDS that Plaintiff does not state a
separate claim for IIED for Defendants’ litigation tactics and
CONCLUDES that Defendants are entitled to judgment as a matter of
law on all of the IIED claims in the Supplemental Complaint.
Accordingly, Defendants’ Summary Judgment Motion B is HEREBY
GRANTED.
III. Plaintiff’s Summary Judgment Motion
The Court has granted Defendants’ Summary Judgment
Motion A and Defendants’ Summary Judgment Motion B.

As a result,

23

(...continued)
Hawai`i 537, 559, 129 P.3d 850, 872 (2006) (“The term
‘outrageous’ has been construed to mean without cause or excuse
and beyond all bounds of decency.” (citation and internal
quotation marks omitted)). In addition, the cases cited by
Plaintiff to support his position are inapposite. See Mem. in
Opp. to Defs.’ Summary Judgment Motion B at 13. The first,
Barefield v. DPIC Co., Inc., is a West Virginia Supreme Court
case discussing the relief available under a state statute. 600
S.E. 2d 256 (2004). The second, Sinclair v. Zurich American
Insurance Co., discusses “what appears to be the majority view
that allows evidence of an attorney’s litigation conduct to be
admissible as evidence of bad faith in rare cases involving
extraordinary facts.” 129 F. Supp. 3d 1252, 1258 (D.N.M. 2015)
(citation omitted). Plaintiff alleges neither “extraordinary
facts” in the instant matter nor that Hawai`i courts have
recognized the admissibility of this type of evidence.
24

The Court notes that, in challenging Plaintiff’s
contentions regarding Young, Defendants misstate the facts.
Young did not make its finding regarding IIED “in reference to
Allstate’s conduct in defending Young in the first-party
insurance context.” Reply in Supp. of Defs.’ Summary Judgment
Motion B at 20. In fact, Allstate represented the other party to
the accident, and convinced Young that she did not need an
attorney. Young, 119 Hawai`i at 409, 198 P.3d at 672.
33

there are no claims remaining in the instant matter.

Plaintiff’s

Summary Judgment Motion is therefore DENIED AS MOOT.
CONCLUSION
On the basis of the foregoing:

Defendants’ Motion for

Summary Judgment on Counts IV, VI, VII, and VIII, filed on
October 24, 2016, is HEREBY GRANTED; Defendants’ Motion for
Summary Judgment on Count X of Plaintiff’s Supplemental
Complaint, filed on October 24, 2016, is HEREBY GRANTED; and
Plaintiff’s Motion for Partial Summary Judgment, also filed on
October 24, 2016, is HEREBY DENIED AS MOOT.

There being no

remaining claims in this case, the Clerk’s Office is directed to
enter judgment and close this case on April 19, 2017, unless
Plaintiff files a motion for reconsideration of this Order by
April 17, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 18, 2017.

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

JUAN RIOS QUINONES VS. UNITEDHEALTH GROUP INC., ET AL; CIVIL 1400497 LEK-RLP; AMENDED ORDER: (1) GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON COUNTS IV, VI, VII, AND VIII; (2) GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON COUNT X OF PLAINTIFF’S
SUPPLEMENTAL COMPLAINT; AND (3) DENYING AS MOOT PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
34