Discon et al v. McNeil et al

Filing 54

ORDER AND REASONS - IT IS ORDERED that Encompasss 46 motion for partial summary judgment as to Plaintiffs arbitrary and capricious claim is GRANTED. IT IS FURTHER ORDERED that Plaintiffs 11 motion to continue trial and pretrial deadlines is GRANT ED. The remaining pretrial deadlines in the Courts Scheduling Order are vacated. The Courts case manager will contact the parties to set a scheduling conference to reset the trial date, pretrial conference date, and pretrial deadlines. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY M. DISCON, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 14-392

JAMES LOUIS MCNEIL, III, ET AL.,
Defendants

SECTION: “E” (2)

ORDER
Before the Court is Defendant Encompass Insurance Company of America’s
(“Encompass”) motion for partial summary judgment pursuant to FRCP Rule 561 and
Plaintiffs’ motion to continue trial.2 Plaintiffs filed this action for damages they allegedly
sustained as a result of an auto accident on February 22, 2013. In the First Amended
Complaint, Plaintiffs added Encompass as a Defendant. Encompass is Plaintiffs’
uninsured/underinsured motorists insurer from which Plaintiffs are seeking additional
damages and relief. Plaintiffs Nancy Discon and John Discon have settled their claims,
so there are only two Plaintiffs remaining in this action: Lynne Davisson and Scott
Discon.
Motion to Dismiss
Encompass seeks to have dismissed any claims regarding allegations that
Encompass handled the instant uninsured/underinsured motorists claim in an arbitrary
and capricious manner. Encompass argues Plaintiffs have no evidence of any kind that
Encompass handled the instant claims in an arbitrary and capricious manner, and there
is no genuine dispute of material fact as to these claims.

1
2

R. Doc. 46.
R. Doc. 52.

Plaintiffs’ response indicates that they have no opposition to the granting of the
partial summary judgment dismissing the arbitrary and capricious claims of Plaintiffs
up until January 27, 2015, the time when Encompass filed its motion. Plaintiffs indicate,
however, that Scott Discon recently had an anterior hip replacement surgery and is due
a tender from Encompass. Plaintiffs seek to reserve their rights for any future arbitrary
and capricious behavior after January 27, 2015 if Encompass fails to timely provide any
of the Plaintiffs with a timely tender when due.3 Encompass argues this response is
tantamount to an admission to the fact that the “bad faith” claims made by the Plaintiffs
in the First Amended Complaint are without basis in fact or evidence.
The Court agrees with Encompass and finds there is no genuine dispute about a
material fact with respect to Plaintiffs’ allegations that Encompass acted in an arbitrary
and capricious manner during the handling of the uninsured/underinsured motorist
claims at issue in the First Amended Complaint. Accordingly, Encompass’s motion for
partial summary judgment is granted with respect to any arbitrary and capricious claims
brought by Plaintiffs in the First Amended Complaint.
Motion to Continue
On March 6, 2015, Plaintiffs filed an opposed motion to continue trial and
pretrial deadlines.4 That same day, Encompass filed its opposition.5 Given the upcoming
trial date of April 6, 2015 and the fact that all parties have submitted briefing, the Court
expedites hearing on the motion for a continuance.
Plaintiffs’ motion states that one of the remaining Plaintiffs in this action, Scott
Discon, recently underwent hip replacement surgery on January 13, 2015 and that he is
R. Doc. 47.
R. Doc. 52.
5 R. Doc. 53.
3

4

now undergoing aggressive physical therapy that is expected to continue into the
summer. As a result, Plaintiffs contend he has not reached maximum medical
improvement (“MMI”), and “[t]o force Scott Discon to go to trial at this time when he
has not reached MMI is unfair to complainant. Complications may arise during
complainant’s recovery.”6 Additionally, Plaintiffs state the other Plaintiff, Lynne
Davisson, wishes to go forward with more aggressive treatment for her injuries since she
has had little relief and her “cervical condition is presently her worst condition.”7
Plaintiffs request their first continuance because both Plaintiffs have not reached MMI
and Plaintiffs belief a trial may not be necessary if a continuance is granted since
Plaintiffs’ claims will become ripe for settlement once Plaintiffs reach MMI.8
Encompass’s opposition states that Plaintiffs’ motion to continue should be
denied because (1) Plaintiffs have refused to abide by the Court’s discovery orders, (2)
Plaintiffs’ allegation that Scott Discon has not reached MMI from a recent surgery is not
a basis for a continuance, (3) there is no evidence to suggest that Scott Discon is
currently disabled in any way; (4) there is no evidence to suggest that this trial should be
continued based on additional medical treatment needed for Plaintiff Lynne Davisson,
and (5) the stated basis for the continuance, as set forth by Plaintiffs, does not constitute
“good cause or compelling reason” to continue this trial.9
The Court has broad discretion in determining whether to grant a motion for
continuance. The Court finds a continuance is warranted under the circumstances given
the Court’s trial docket and Plaintiffs’ medical conditions. Accordingly, the trial, pretrial
conference, and all pretrial deadlines that have not yet passed as of the date of this order
R. Doc. 52-1 at p. 2.
Id.
8 Id. at pp. 2–3.
9 R. Doc. 53.
6
7

are continued. The Court’s case manager will contact the parties to set a scheduling
conference to reset the trial date, pretrial conference date, and pretrial deadlines.
CONCLUSION
Accordingly,
IT IS ORDERED that Encompass’s motion for partial summary judgment as to
Plaintiffs’ arbitrary and capricious claim is GRANTED.10
IT IS FURTHER ORDERED that Plaintiffs’ motion to continue trial and
pretrial deadlines is GRANTED.11 The remaining pretrial deadlines in the Court’s
Scheduling Order12 are vacated. The Court’s case manager will contact the parties to set
a scheduling conference to reset the trial date, pretrial conference date, and pretrial
deadlines.
New Orleans, Louisiana, this 11th day of March, 2015.
______________ _______ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 46.
R. Doc. 52.
12 R. Doc. 27.
10
11