Gueorguiev v. United States Life Insurance Company in the City of New York, The et al
Filing
85
OPINION AND ORDER Granting In Part and Denying In Part Defendant The United States Life Insurance Company in the City of New York's Motion for Summary Judgment (Dkt. 63 ) and Denying Plaintiff's Amended Motion In Limine to Exclude Toxicology Report, or Alternately, to Compel Discovery (Dkt. 77 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TANIA GUEORGUIEV,
Plaintiff,
Case No. 15-CV-13676
HON. MARK A. GOLDSMITH
vs.
THE UNITED STATES LIFE
INSURANCE COMPANY IN THE
CITY OF NEW YORK, et al.,
Defendants.
_______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW
YORK’S MOTION FOR SUMMARY JUDGMENT (Dkt. 63) AND DENYING
PLAINTIFF’S AMENDED MOTION IN LIMINE TO EXCLUDE TOXICOLOGY
REPORT, OR ALTERNATELY, TO COMPEL DISCOVERY (Dkt. 77)
This matter is before the Court on Defendant The United States Life Insurance Company
in the City of New York’s motion for summary judgment (Dkt. 63), and Plaintiff’s motion in
limine to exclude toxicology report, or alternately, to compel discovery (Dkt. 77).
The issues
have been fully briefed, and a hearing was held on September 22, 2016. Defendant seeks a ruling
that an insurance contract was formed between Plaintiff and Defendant, which included exclusions
for losses that were incurred as the result of committing a crime or being intoxicated. Defendant
also seeks a ruling that a toxicology report proves that the exclusions apply and relieves Defendant
of its obligation to pay benefits to Plaintiff. Plaintiff seeks to exclude the toxicology report on the
ground that Defendant has failed to lay an adequate foundation for the report. In the alternative,
Plaintiff seeks an order from this Court compelling Defendant to provide further information
regarding how the results contained within the report were reached. For the reasons explained
below, the Court grants in part and denies in part Defendant’s motion, and denies Plaintiff’s
motion.
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I. BACKGROUND
Plaintiff and the decedent, her husband Peter Gueorguiev, received a mortgage loan from
CitiMortgage, a former defendant in this case. Enrollment Form, Ex. E to Pl. Resp., at 1 (Dkt. 706). As part of the mortgage, Plaintiff and the decedent were offered the opportunity to purchase
coverage under a policy of group accidental death and dismemberment insurance that was
underwritten by Defendant. Id.
Defendant claims that the decedent purchased the policy and named Plaintiff as the
beneficiary, but a review of the enrollment form for the policy demonstrates that it is unclear
whether both parties were the insureds and whether both parties are beneficiaries. Id. Under the
section entitled “Enrollment Options,” the form has the names of both Plaintiff and the decedent
printed. Id. However, a line was drawn through Plaintiff’s name, which indicates that she would
not be insured by the policy. Id. Yet, under the section entitled “Insured’s Birth Date,” there are
two dates listed, and under the section entitled “Beneficiary,” both Plaintiff’s and the decedent’s
names are listed. Id. The decedent is the only person to have signed the enrollment form dated
December 27, 2006. Id.
On February 1, 2007, a cover letter and Certificate of Insurance were sent to the decedent.
Cover Letter, Ex. D to Pl. Resp. (Dkt. 70-5). The letter stated that the Certificate of Insurance for
the policy that Plaintiff and the decedent applied for was enclosed. Id. Plaintiff argues that the
enclosed document was a one-page document that lists the certificate number, group policy
number, effective date, the participating association, and the schedule of benefits. See Plaintiff’s
Purported Certificate of Insurance, Ex. F. to Pl. Resp., at 1 (Dkt. 70-7). Defendant contends that
the enclosed document was a four-page document that, among other things, sets forth the
exclusions in the policy. See Defendant’s Purported Certificate of Insurance, Ex. A. to Def. Reply,
at 1 (Dkt. 73-2).
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The purported insurance policy provided by Defendant states that benefits will be provided
in the event of the accidental loss of life. Insurance Policy, Ex. A to Def. Mot., at 13 (cm/ecf page)
(Dkt 63-2). The purported insurance policy includes a section that states that “[i]f benefits are
payable under the Accidental Death section of this policy, United States Life will pay the amount
indicated in the Schedule of Benefits for loss which results from a covered accident which occurs
while the insured person is driving . . . in a private passenger car.” Id. The policy also contains
various exclusions, of which two are relevant here: commission of a crime and intoxication.
Specifically, the policy provides that “no benefits will be paid for any loss that results from or is
caused directly, indirectly, wholly or partly by . . . 5. Committing a crime, or an attempt to do so .
. . 6. Being intoxicated or under the influence of any drug, unless taken as prescribed by a
physician.” Id.
Sometime between 11:30 p.m. on August 8, 2013 and 1:00 a.m. on August 9, 2013, the
decedent was driving north on M-30 in Edenville Township. Traffic Crash Report, Ex. C to Def.
Mot., at 3 (cm/ecf page) (Dkt. 63-4). As the road began to curve to the right, the decedent drove
off the road. Id. The decedent proceeded to drive through a fence and into an unoccupied building.
Id. The decedent was pronounced dead at the scene by Dr. Dennis Wagner, the Midland County
medical examiner. Incident Report, Ex. D. to Def. Mot., at 5 (Dkt. 63-5). Among the items
recovered from the decedent’s vehicle was an open bottle of Jack Daniels whiskey. Property
Receipts, Ex. G to Def. Mot., at 3 (cm/ecf page) (Dkt. 63-8). At 3:08 a.m., Wagner took a blood
sample from the decedent. Blood Sample Collection Form, Ex. E to Def. Mot., at 1 (cm/ecf page)
(Dkt. 63-6). On August 16, 2013, Greta Gill, a forensic scientist with the Michigan Department
of State Police, conducted an analysis of the blood taken by Wagner. Laboratory Report, Ex. F to
Def. Mot., at 2 (cm/ecf page) (Dkt. 63-7). The analysis revealed that the decedent had a blood
alcohol level of 0.15. Id.
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Plaintiff filed a claim with Defendant for the proceeds of the insurance policy, see Claim
Form, Ex. J to Def. Mot., at 1 (Dkt. 63-11), which was denied. Letter from AIG Benefits Solutions
to Plaintiff’s Counsel, Ex. K to Def. Mot., at 3 (cm/ecf page) (Dkt. 63-12). Defendant noted that
Plaintiff’s blood alcohol level was 0.15 at the time of his death. Id. Defendant stated that, as a
result, policy exclusions five and six relieved Defendant of paying benefits to Plaintiff because the
decedent died as the result of committing a crime and being intoxicated. Id. Plaintiff appealed the
denial of her claim. Letter from Plaintiff’s Counsel to AIG Benefits Solutions, Ex. L to Def. Mot.,
at 2 (cm/ecf page) (Dkt. 63-13). In her letter of appeal, Plaintiff theorized that the crash could
have been due to previous chest pain or that the analysis of the decedent’s blood was simply
mistaken. Id. at 5. Defendant subsequently denied Plaintiff’s appeal. Plaintiff then filed the
instant action, alleging three counts: breach of contract, negligence, and tortious interference with
a contract.1 Third Am. Compl. (Dkt. 24).
II. STANDARD OF REVIEW
A court must grant summary judgment “if the movant shows that 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). “In making this determination, the court must view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v.
Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court must determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-252 (1986). In considering the material facts in the record, a court must
recognize that “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position
1
In her response to Defendant’s motion for summary judgment, Plaintiff states that she is
voluntarily dismissing her negligence and tortious interference claims against Defendant. Pl. Resp.
at 14 (Dkt. 70). Defendant has not raised an objection; therefore those counts are dismissed.
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will be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Id. at 422. In this case, Defendant bears the burden of proving that any coverage under
the policy is negated by an exclusion. Monteleone v. The Auto Club Grp., 113 F. Supp. 3d 950,
959 (E.D. Mich. 2015). “Where the moving party has the burden . . . his showing must be
sufficient for the court to hold that no reasonable trier of fact could find other than for the moving
party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation and internal
quotation marks omitted).
III. ANALYSIS
The issues concerning Defendant’s motion for summary judgment and Plaintiff’s motion
in limine, especially as they concern the admissibility of the toxicology report, are intertwined. As
a result, the motions will be analyzed together.
A. Contract Formation
After reviewing the limited record presented by the parties, the Court holds that there is a
genuine dispute of fact regarding whether there was a contract between the parties and, if there
was a contract, what the terms were. To begin, it is unclear from the enrollment form whether the
contract insured both Plaintiff and the decedent, or just the decedent. Although a line is drawn
through the Plaintiff’s name on the enrollment form, two birthdates are listed, and both Plaintiff
and the decedent are listed as the beneficiaries. Enrollment Form at 2 (cm/ecf page). Furthermore,
the enrollment form does not specify what exactly the prospective insured was actually applying
for. The form merely states that “I hereby enroll in the $1,000,000 Family Protection Plan
underwritten by United States Life.” Id. The form does not specify if this “plan” is the alleged
insurance contract in question or something else. Finally, the form is not clear regarding what is
meant by the phrase “I hereby understand the exclusions and limitations of this program.” Id. The
form does not state what the exclusions and limitations are or how they were communicated to the
prospective insured.
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Defendant provides the affidavit of Peggy Riegert, a technical claims analyst for
Defendant, but Riegert does not explain the issues regarding the application process and how
policies are actually issued. She merely states that the decedent purchased coverage under a policy
of group accidental death and dismemberment insurance and named Plaintiff as the beneficiary.
Decl. of Peggy Riegert, Ex. B to Def. Mot., at 1-2 (Dkt. 63-3). Riegert also restates the exclusions
set forth in Defendant’s purported insurance policy. Id. at 2-3. Riegert fails to explain what is
meant by the terms “$1,000,000 Family Protection Plan” and what exactly the exclusions and
limitations of the purported policy were. Riegert also does not address the contents of the
Certificate of Insurance and does not provide any clarity regarding the dispute about which
document actually constitutes the certificate. Notably, Riegert does not explain the purpose of the
one-page document that Plaintiff claims was the certificate of insurance or how it was transmitted
to Plaintiff and the decedent.
There also is no explanation regarding how the policy was issued to Plaintiff and the
decedent. The record indicates that the policy was issued in conjunction with a mortgage provided
by CitiMortgage, yet there is nothing in the record indicating which company actually
communicated with the decedent and Plaintiff regarding the terms of the policy prior to issuance.
Without answers to these questions, it is impossible for the Court to determine with any
degree of confidence – much less to determine as a matter of law – what the specific contents of
the insurance policy were and whether those contents included the exclusions upon which
Defendant relies in its motion. All of these issues will require further factual development at trial.
B. Toxicology Report
Plaintiff also argues that, even if the exclusions regarding criminal acts and intoxication
are part of a contract with Defendant, Defendant has failed to lay an adequate foundation for the
use of the decedent’s blood test results. Plaintiff cites to the Michigan Court of Appeals’ decision
in Gard v. Michigan Produce Haulers, 174 N.W.2d 73 (Mich. Ct. App. 1969), for the proposition
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that Defendant has failed to meet a nine-part test to admit the results of a blood test. “In federal
diversity actions, state law governs substantive issues and federal law governs procedural issues.”
Legg v. Chopra, 286 F.3d 286, 289 (6th Cir. 2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938)). “Rules of evidence are deemed rules of procedure . . . and therefore, the Federal Rules of
Evidence, rather than state evidentiary laws, are held to apply in federal diversity proceedings.”
Id. As a result, Gard is inapplicable, and this Court applies the Federal Rules of Evidence to
determine whether the results of a blood test are admissible. See Huss v. United States, 738 F.
Supp. 1098, 1111 (W.D. Mich. 1990).
Plaintiff also argues that the blood test results do not meet the test of reliability set forth in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In Daubert, the Supreme Court held
that Federal Rule of Evidence 702 requires a trial court to “ensure that any and all scientific
testimony . . . is not only relevant, but reliable.” Id. at 589. The Court then suggested a list of
factors for courts to consider when deciding whether proposed scientific expert testimony is
sufficiently reliable. These factors include (i) whether the methodology utilized by the expert can
and has been tested, (ii) whether the theory or technique has been subject to peer review, (iii) the
known potential rate of error and the existence of standards controlling the technique’s operation,
and (iv) the extent to which the methodology or technique employed by the expert is generally
accepted in the scientific community. Id. at 592-594.
Plaintiff’s argument is atypical in that she is bringing a Daubert challenge against the
toxicology report alone, rather than challenging any proffered expert testimony. However,
“[u]nder Daubert, the trial court acts as a ‘gatekeeper’ that ensures that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” United States v. Carpenter, No.
12-cr-20218, 2013 WL 6385838, at *5 (E.D. Mich. Dec. 6, 2013) (emphasis added). As Plaintiff
notes in her motion in limine, Defendant has failed to identify any expert witness who can testify
to the methods and reliability of the toxicology report. It is well settled that the burden is on the
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proponent of the expert evidence to prove that the evidence is admissible. Daubert, 509 U.S. at
592 n.10 (1993). The record is devoid of an affidavit from Gill or Wagner describing in detail
how the blood was collected, transported, and analyzed.2 Nor are there any affidavits from other
experts explaining why the methods used to analyze the blood are reliable.
In essence, Defendant is acting as its own expert witness by submitting the toxicology
report and assuring the Court that the results are reliable. In Loan v. Prudential Insurance Company
of America, 370 F. App’x 592, 596 (6th Cir. 2010), the Sixth Circuit held that a toxicology report
unsupported by an expert witness was insufficient to prove reliability. In that ERISA case, the
decedent, Ernest Loan, had purchased coverage under a group accidental death insurance policy
that contained an exclusion for losses resulting from “[b]eing legally intoxicated.” Id. at 593. Just
prior to his death, Loan fell down two flights of stairs after consuming three glasses of wine. Id.
Upon being transported to the hospital, Loan had his blood drawn. Id. The toxicology report
stated that he had a blood alcohol level of 0.146. Id. at 594. After Loan succumbed to his injuries,
the defendant denied coverage to the plaintiffs on the basis of the toxicology report. Id. at 593.
After the district court affirmed the denial of benefits, the Sixth Circuit reversed, stating
that “[w]ithout the benefit of a toxicology expert’s analysis, it is difficult to determine whether the
report in question was reliable.” Id. at 597. The court ultimately held that “it was unreasonable
under the circumstances for Prudential to rely on this toxicology report alone, without the benefit
of expert analysis, to determine that the decedent was legally intoxicated.” Id. The court noted
that the plaintiffs had contested the reliability of toxicology reports in general, and also questioned
the methods and circumstances surrounding Loan’s blood draw. Id. at 596. Specifically, the court
2
Although Defendant is correct that the incident report states that Wagner took a blood draw using
a Michigan State Police blood kit, this is the only information provided regarding the collection of
the decedent’s blood. Incident Report at 5.
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validated some of the same concerns raised by Plaintiff here – that blood levels can rise after an
accident and that some factors may produce a false blood alcohol reading:
Plaintiffs have raised a number of doubts as to the reliability of
toxicology reports generally and the reliability of the specific
toxicology report generated in this case. Concerning toxicology
reports generally, Plaintiffs cite expert treatises detailing the
unreliable nature of moving from an estimated BAC value to an
assessment of the degree of intoxication during the relevant period.
See, e.g., 1 McCormick on Evidence § 205 (6th Ed.) (“ . . . one
cannot assume that BAC inevitably is higher at the time of an
accident than it is afterwards, at the time of testing, for the
concentration rises after drinking, then drops. Extrapolations based
on direct measurements of BAC therefore seem more perilous than
is generally recognized . . . ”) . . . Plaintiffs also point to the variety
of factors that may affect BAC over time, including food intake, type
and quantity of alcohol, weight, sex, body fat percentage, and rate
of absorption . . . Without the benefit of a toxicology expert’s
analysis, it is difficult to determine whether the report in question
was reliable.
Loan, 370 F. App’x at 596-597.
In our case, Plaintiff has similarly raised questions regarding the reliability of toxicology
reports and the circumstances of the decedent’s blood draw, demonstrating the insufficiency of the
report to validate itself. Plaintiff cites to authority showing that Michigan police laboratories
routinely did not account for the potential rate of error at the time the decedent’s blood was
analyzed. Pl. Resp. at 10-11; Michigan’s Uncertainty Budget, Ex. N to Pl. Resp. (Dkt. 70-15).
Like the plaintiffs in Loan, Plaintiff also cites to authority “detailing the unreliable nature of
moving from an estimated BAC value to an assessment of the degree of intoxication during the
relevant period.” Loan, 370 F. App’x at 596. Plaintiff has quoted reports that attribute elevated
blood alcohol levels to post-mortem activity, noting that this may have accounted for the
decedent’s high blood alcohol level. Pl. Resp. at 7-8; Interpreting Results in Postmortem Species,
Ex. L. to Pl. Resp. (Dkt. 70-13). Like the court in Loan, this Court finds it difficult to determine
the reliability of the report without the assistance of an expert opinion. Defendant has not met its
burden of proving the reliability of the toxicology report at this stage of the proceedings.
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Plaintiff argues in his motion in limine that, because there is not yet an adequate foundation
to support the toxicology report, this Court should exclude the report entirely.3 In a case with such
a limited record, the normal course of action would be to hold an evidentiary hearing in regard to
Plaintiff’s Daubert challenge. See Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir. 2000)
(“[A] district court should not make a Daubert determination when the record is not adequate to
the task.”). However, in light of the fact that this matter will be proceeding to a bench trial, the
Court believes a Daubert hearing to be unnecessary. The Sixth Circuit has held that Daubert
hearings are primarily used “to protect juries from misleading or unreliable expert testimony” and
are “largely irrelevant in the context of a bench trial.” Deal v. Hamilton Cnty. Bd. of Educ., 392
F.3d 840, 851-852 (6th Cir. 2004). Because the Sixth Circuit has recognized that a “district court
is not obligated to hold a Daubert hearing,” Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir.
2000), the Court will rule on the admissibility of the toxicology report at trial, where all evidence
bearing on its reliability can be presented.
C. Interpretation of the Insurance Policy
Finally, Plaintiff argues that exclusion number five requires that the insured’s criminal act
be proven by evidence of a conviction. The exclusion states that “[n]o benefits will be paid for
any loss that results from or is caused directly, indirectly, wholly or partly by . . . 5. Committing a
crime, or an attempt to do so.” Insurance Policy at 12. Plaintiff argues that, because the decedent
was never convicted of a crime, exclusion number five to the policy does not apply. However, the
Michigan Court of Appeals has already addressed this issue, holding that “[i]n considering whether
a policy exclusion for criminal conduct bars coverage, the relevant inquiry is whether criminal
conduct occurred, not whether it was charged.” Weitzel, 2005 WL 233928, at *1; see also Allstate
3
In the alternative, Plaintiff requests that this court order Defendant to “provide more definitive
responses to Plaintiff’s discovery requests and/or produce its expert witness for deposition.” Pl.
Mot. at 10. In light of the fact that the discovery and dispositive motion deadlines have long since
passed, the Court declines to order any further discovery.
10
Ins. Co. v. Keillor (On Remand), 511 N.W.2d 702, 705 (Mich. Ct. App. 1993) (exclusion applied
where insured committed a criminal act for which she was not prosecuted). Exclusion number
five does not require a criminal prosecution or conviction.
IV. CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Defendant’s motion
for summary judgment (Dkt. 63). The Court also denies Plaintiff’s motion in limine (Dkt. 77) and
holds that the matter will proceed to a bench trial in lieu of a Daubert hearing.
SO ORDERED.
Dated: October 19, 2016
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on October 19, 2016.
s/Karri Sandusky
Case Manager
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