Everett v. American General Life Insurance Company
MEMORANDUM DECISION & ORDER Defendant's Motion for Summary Judgment (Dkt. 18 -1) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DEANNA EVERETT aka Deanna
Case No. 1:14-cv-00121-BLW
MEMORANDUM DECISION AND
AMERICAN GENERAL LIFE
INSURANCE COMPANY, formerly
known as American General Assurance
Company, an insurance company
licensed to do business in the State of
Idaho pursuant to Idaho Code, Title 41,
Before the Court is Defendant American General Life Insurance Company’s
Motion for Summary Judgment (Dkt. 18-1). The motion was argued on May 27, 2015,
and taken under advisement. For the reasons explained below, the Court will grant
This case arises out of the passing of Mr. John Whitley, and his wife’s efforts to
collect under his accidental death insurance policy issued by Defendant, American
General Life Insurance Company. The following facts and timeline of events are
undisputed or, when disputed, taken in the light most favorable to Deanna Everett
MEMORANDUM DECISION AND ORDER - 1
Whitley, the plaintiff and non-moving party. See Matsushita Elec. Indus. Co. v, Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
John Whitley was involved in an automobile accident on November 27, 2010 and
broke his neck, sustaining a type II odontoid fracture. This injury was initially treated
with a Miami neck brace and pain medications.
Prior to his car accident, Mr. Whitley had been scheduled to have cardiac surgery
at the Mayo Clinic in Rochester, Minnesota. Mr. Whitley was approximately 76 years old
at the time and had planned to undergo mitral valve replacement surgery in December
2010. However, it was determined that Mr. Whitley was not a good candidate, or did not
need, the mitral valve replacement surgery.1 But on February 25, 2011, the doctors at the
Mayo Clinic elected to perform surgery for the neck injury sustained in the car accident
which consisted of a posterior C 1-2 fusion with right iliac crest bone graft. Mr. Whitley
stayed at Saint Mary’s Hospital for approximately one week following his surgery.
While Mr. and Mrs. Whitley were flying home to Idaho on March 5, 2011, Mr.
Whitley’s heart decompressed, he fainted, and the plane was diverted to Pierre, South
Dakota where Mr. Whitley was admitted to St. Mary’s Healthcare Center. After spending
the night at the hospital, Mr. and Mrs. Whitley returned home to Idaho, where Mr.
Whitley was admitted to West Valley Medical Center in Caldwell, Idaho. Mr. Whitley
Conflicting testimony exist as to whether the surgery was deemed not to be an option because
of the accident or simply unnecessary because it would not help the patient.
MEMORANDUM DECISION AND ORDER - 2
was discharged 2 days later to home hospice care and died roughly one month later on
April 6, 2011.
On April 29, 2011, Mrs. Whitley notified American General of her husband’s
death to begin the process of receiving benefits under the accidental death policy. The
policy owned by Mr. Whitley had been in effect since July 15, 2005, and neither party
disputes its authenticity. The policy provides that the amount of $100,000 will be
distributed to the beneficiary if “[a] covered person suffers loss solely as a result of an
accidental bodily injury,” and “due proof of such loss [is] sent to American General.”
Complaint, Exhibit A, p. 3 (Accidental Death and Dismemberment Benefits). The policy
further clarifies that “the accidental bodily injury must happen while the person is
covered under the group policy and the loss must occur within 365 days after the date of
the injury.” Id. The policy provides several exclusions, most significantly an exclusion
stating that “no benefits will be paid for any loss that results from or is caused directly,
indirectly, wholly or partly by any of the following: ... 3. A physical or mental sickness or
treatment of that sickness; ....” Id. at p. 6 (Accidental Death and Dismemberment
Exclusions and Limitations).
American General responded to Mrs. Whitley’s initial notice by asking for
additional information, which Mrs. Whitley provided. Over the course of the following
five months, information and documents were exchanged between the parties until
October 11, 2011 when American General denied the claim. Mrs. Whitley then filed this
MEMORANDUM DECISION AND ORDER - 3
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool [ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the nonmovant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152,
1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable
inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
MEMORANDUM DECISION AND ORDER - 4
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in his favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by [ ] affidavits, or by the depositions, answers
to interrogatories, or admissions on file” that a genuine dispute of material fact exists.
Celotex, 477 U.S. at 324.
American General gives two reasons why this Court should enter summary
judgment against Mrs. Whitley. First, it asserts that because Mr. Whitley died from
natural causes, and not as the result of any accident, coverage was not available under the
accidental death policy. Second, American General contends that because Mrs. Whitley
did not provide timely proof of loss, she is not entitled to beneficiary distributions under
the policy, nor is she entitled to attorney’s fees for this litigation under Idaho Code § 411839. The Court will address each argument in turn.
Cause of death
The parties dispute whether the injury Mr. Whitley suffered in the automobile
accident caused his death, which in turn affects whether Mr.Whitley was covered by the
accidental death and dismemberment policy. Mrs. Whitley contends that Mr. Whitley’s
MEMORANDUM DECISION AND ORDER - 5
death was the result of the neck injury sustained during the accident. American General
argues that because Mr. Whitley had a history of other physical ailments and sicknesses,
including heart disease, the true cause of death was unrelated to the accident, and
therefore subject to the sickness exclusion in the policy. Additionally, the death
certificate indicates that the death was not an accident, demonstrating, in American
General’s opinion, the absence of a genuine issue of material fact that the death was not
To support her claim, Mrs. Whitely relies almost exclusively on the testimony of
Dr. Walter L. Seale, who suggests that Mr. Whitley’s death was the result of the car
accident and not any other underlying factor. To determine whether Dr. Seale’s opinion is
admissible and supports Mrs. Whitley’s claim, a short summary of the evidence is helpful
Mr. Whitley died on April 6, 2011. On April 29, 2011 Mrs. Whitley submitted a
claim to American General for benefits under her husband’s policy. On Oct 11, 2011
American General denied that policy. On March 29, 2012, Dr. Seale wrote a letter “To
Whom It May Concern” opining that the cause of Mr. Whitley’s death was the accident
and subsequent neck injury he suffered. Dkt.24-3 Exhibit A. Counsel for Mrs. Whitley
forwarded this letter to counsel for American General on June 5, 2014. Id. Counsel’s
letter explained that “[t]he doctor’s letter is not part of the formal production being made
as we understand the doctor’s opinion will have to be introduced through his testimony
and supporting documents but we did want you to be aware of its existence.” Id.
MEMORANDUM DECISION AND ORDER - 6
After Mrs. Whitely filed her lawsuit, the Court set case management deadlines,
including the deadline for disclosure of expert witnesses. Those deadlines were
December 5, 2014 for Plaintiff’s disclosures, January 5, 2015 for Defendant’s
disclosures, and January 19, 2015 for rebuttal disclosures. Dkt. 7, pg.6 a-c. The Court
extended those deadlines by approximately one month pursuant to a stipulation of the
parties – Plaintiff’s to January 5, 2015, Defendant’s to February 4, 2015, and rebuttal to
February 19, 2015.
Mrs. Whitely submitted both an original disclosure (Dkt. 19-4, Exhibit 5) and an
amended disclosure (Dkt. 19-5, Exhibit 6) by the appropriate deadline. Dr. Seale was
only disclosed in the amended disclosure. That disclosure indicated that Dr. Seale was
Mr. Whitley’s treating cardiologist, and that Dr. Seale and two other treating physicians
would testify to Mr. Whitley’s medical history and cause of death. It said nothing else
about Dr. Seale. After the disclosure deadline passed, Mrs. Whitley submitted an
Affidavit of Dr. Seale, dated March 19, 2015. Dkt.24-2. It attached Dr. Seale’s CV, and
included the following six statements by Dr. Seale: (1) Dr. Seale specializes in
cardiovascular disease; (2) Dr. Seale was Mr. Whitley’s cardiologist for several years; (3)
Mr. Whitley was preparing to undergo heart valve surgery when he suffered a neck
fracture from the automobile accident; (4) The neck fracture was the predominant cause
of Mr. Whitley’s death; (5) The neck fracture and treatment of the fracture was the
primary reason for Mr. Whitley’s death; and (6) Heart disease did not much affect Mr.
MEMORANDUM DECISION AND ORDER - 7
Whitley’s ability to survive his neck fracture. Id. These six statements are essentially
what Dr. Seale said in his March 29, 2012 letter .
Federal Rule of Civil Procedure 26(a)(2) requires a party to disclose the identity of
any expert witness who may be called upon to testify. Specifically, there are two kinds of
expert witnesses and two kinds of disclosure.
A Rule 26(a)(2)(B) expert, is an expert “retained or specifically employed to
provide expert testimony in the case;” he or she must be disclosed in a timely manner;
and the disclosure “must be accompanied by a written report – prepared and signed by
the witness.” Fed.R.Civ.P. 26(a) (2)(B). The report must contain certain information
outlined in Rule 26(a)(2)(B) (i-vi).
By comparison, a Rule 26(a)(2)(C) expert is an expert not “retained or specifically
employed to provide expert testimony in the case,” but still expected to offer expert
testimony. Such experts typically had some direct involvement in a case, and because of
their duties or employment were required to form opinions in the course of their
involvement. For example, a law enforcement officer who formed opinions about the
cause of an automobile accident which they investigated, or a physician who formed
opinions in the course of rendering medical treatment, would qualify as 26(a)(2)(C)
experts. Such an expert must nevertheless be disclosed in a timely manner, but is not
required to submit a written report. However, in disclosing such an expert, counsel must
include with the disclosure, a description of the “subject matter on which the witness is
expected to present evidence” Fed.R.Civ.P. 26 (a)(2)(C) (i) and give a “summary of the
MEMORANDUM DECISION AND ORDER - 8
facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26 (a)(2)(C)
Dr. Seale does not qualify as a Rule 26(a)(2)(B) expert because he was not
retained or specifically employed to provide expert testimony, and he failed to produce
the required written report. Fed.R.Civ.P. 26(a)(2)(B). Thus, he can only testify and offer
expert testimony if he qualifies as an expert under 26(a)(2)(C). For several reasons, the
Court concludes that he does not satisfy the requirements of the Rule.
First, the affidavit with the six enumerated areas of testimony was a very late
disclosure. “If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or harmless.” Fed.R.Civ.P. 37(c)(1). Mrs. Whitley gives no substantial
justification for the late disclosure. Moreover, it was not harmless – at this point
discovery is closed and rebuttal expert deadlines have passed. Thus Defendant has no
time to address Dr. Seale’s affidavit.
Second, the original disclosure states only that Dr. Seale was Mr. Whitley’s
treating cardiologist, and that he would testify to Mr. Whitley’s medical history and cause
of death. But he gives no specific information about Mr. Whitley’s medical history, nor
does he explain the cause of death. This does not satisfy the requirement that a Rule
26(a)(2)(C) provide the “subject matter on which the witness is expected to present
MEMORANDUM DECISION AND ORDER - 9
evidence” and a “summary of the facts and opinions to which the witness is expected to
testify” Fed.R.Civ.P. 26 (a)(2)(C) (ii).
The March 29, 2012 letter also is not a proper disclosure qualifying Dr. Seale as
an expert witness. Mrs. Whitley’s counsel himself explained that the letter was not a part
of discovery, and more importantly, never indicated that it should be regarded as a
disclosure of any sort. In his letter to opposing counsel enclosing Dr. Seale’s letter, he
explained that “[t]he doctor’s letter is not part of the formal production being made as we
understand the doctor’s opinion will have to be introduced through his testimony and
supporting documents but we did want you to be aware of its existence.” (Eismann Aff.,
Ex A, Dkt 24-3). In fact, at oral argument, counsel explained that sending the letter was
simply a courtesy. Thus, the letter does not qualify as a disclosure.
Additionally, Mrs. Whitley’s contention that Dr. Seale is exempt from the
disclosure rules because he was a treating physician is without merit. “[A] treating
physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent
that his opinions were formed during the course of treatment.” Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). Dr. Seale sent the letter
opining to the cause of death just shy of one year after Mr. Whitley’s passing and at Mrs.
Whitley’s request. Seale Depo., Dkt. 32-4, p.70. His opinion was formed in response to
her request; not during the course of treating Mr. Whitley. Id at p.72-3. Furthermore, as
Mr. Whitley’s cardiologist, Dr. Seale had no occasion to conduct an autopsy or determine
MEMORANDUM DECISION AND ORDER - 10
Mr. Whitley’s cause of death during his treatment of Mr. Whitley. Accordingly, Dr. Seale
cannot testify as a treating physician about Mr. Whitley’s cause of death.
Next, Mrs. Whitley argues that the matters discussed above are simple errors or
minor oversights that she should be allowed to correct. That simply is not accurate. Mrs.
Whitley wholly failed to comply with the expert disclosure requirements of the Rule 26.
And “Rule 37 ‘gives teeth’ to Rule 26’s disclosure requirements by forbidding the use at
trial or on motion of any information that is not properly disclosed.” Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (citing Fed.R.Civ.P.
Finally, upon Plaintiff’s request, the Court allowed the parties to supplement the
record with deposition testimony of the physicians. Plaintiff provided the Court with such
deposition testimony, and argued that it supports her assertion that the accident was the
predominant cause of Mr. Whitley’s death. There is deposition testimony from Dr. Seale
indicating that he believed the neck fracture was the predominant cause of death. The
problem for Plaintiff is that this testimony does not cure the defects outlined above
disqualifying Dr. Seale from testifying. The fundamental problem explained in detail
above is still that Dr. Seale may not testify as an expert or as a treating physician. For
these reasons, the Court will exclude Dr. Seale’s testimony.
In turn, the Court will grant summary judgment for American General. American
General has provided the Court with evidence, undisputed by anyone other than Dr.
Seale, that Mr. Whitley died from “acute pulmonary edema, end stage systolic heart
MEMORANDUM DECISION AND ORDER - 11
failure, and ischemic cardiomyopathy,” as stated on his death certificate. Dkt. 19, Exhibit
A. Idaho Code states that “[a]ny certificate filed in accordance with the provisions of this
chapter and the regulations prescribed by the board [i.e., any vital statistics records], or
any copy of such records or part thereof, duly certified by the state registrar, shall be
prima facie evidence of the facts recited therein.” I.C. § 39- 274. See also, Corey v.
Wilson, 454 P.2d 951, 953-54 (1969) (holding that a death certificate was admissible as
evidence as to cause of death). Additionally, rule 803(9) of the Federal Rules of Evidence
specifically allows the admission of public records of vital statistics such as birth,
marriage, and death as non-hearsay evidence. From the information before the Court, it is
clear that the car accident did not cause Mr. Whitley’s death. Accordingly, Because Mr.
Whitley’s death was not a result of an accident, coverage was not available under the
accidental death policy.
Timely proof of loss
American General also contends that there is no coverage because the proof of
claim was not filed in a timely manner. The time period specified within the contract
reflects that of Idaho Code § 41-2111, which requires a proof of loss be submitted within
90 days of the loss, but no “later than one year from the time proof is otherwise
required”. I.C. §41-2111.
Here, that means Mrs. Whitley needed to provide proof of loss no later than July 4,
2012. American General does not dispute that Mrs. Whitley submitted a proof of loss
claim on or about July 11, 2011, roughly one full year before the deadline. American
MEMORANDUM DECISION AND ORDER - 12
General argues that the proof of loss did not show that Mr. Whitley had suffered a
“covered loss” (i.e. that the loss was the result of an accident). That is why American
General asked for a new proof of loss, which was never submitted. Although somewhat
unnecessary given the Court’s conclusion above on the cause of death, American General
is right that no sufficient proof of loss has been submitted. Accordingly, this is another
reason summary judgment will be granted in favor of American General.
IT IS ORDERED:
Defendant’s Motion for Summary Judgment (Dkt. 18-1) is GRANTED.
The Court will enter a separate Judgment in accordance with Fed. R. Civ.
DATED: July 31, 2015
B. Lynn Winmill
United States District Court
MEMORANDUM DECISION AND ORDER - 13
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