Pakenas v. State Farm Mutual Automobile Insurance Company

Filing 21

ORDER denying 20 Motion for Reconsideration. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELIZABETH ANN PAKENAS, Guardian
of PATTI ROGERS, a legally incapacitated
individual,
Plaintiff,
Case No. 13-10549
Hon. John Corbett O’Meara

v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
____________________________________/

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
Before the court is Plaintiff’s motion for reconsideration of the court’s
August 21, 2014 order, which dismissed this case with prejudice and permitted
Defendant to seek fees and costs. Based upon the history of this case, as discussed
below, the court concludes that reconsideration is not warranted.
Plaintiff, Elizabeth Pakenas, filed a suit to recover no-fault benefits from
Defendant State Farm in 2005. Specifically, Plaintiff was seeking attendant care
benefits on behalf of her sister, Patti Rogers. Rogers was in an automobile
accident in 1976, which left her with various medical problems. After a two-week
trial in March 2009, the court granted a directed verdict in favor of Defendant.

Although Plaintiff sought reimbursement for 24/7 attendant care, the evidence
made clear that 24/7 care was not provided or needed. Finding that Plaintiff’s
claim was “in some respect fraudulent or so excessive as to have no reasonable
foundation,” the court granted Defendant’s motion for attorney’s fees, in the
amount of $212,380. The Sixth Circuit affirmed the directed verdict and the
attorney’s fees award on June 15, 2012.
On January 31, 2013, Plaintiff filed a new complaint against Defendant in
Wayne County Circuit Court, which was removed to this court on February 8,
2013. In the complaint, Plaintiff sought no-fault benefits, arising out of her 1976
accident, for the time period from March 1, 2009, until the time the complaint was
filed. These benefits include attendant care services, “including on call attendant
care,” medical benefits, nursing care, accommodations, transportation, and case
management services. Compl. at ¶ 16.
On February 14, 2013, Defendant sent a letter to Plaintiff’s counsel pursuant
to Fed. R. Civ. P. 11, contending that Plaintiff’s complaint lacked evidentiary and
legal support. Among other things, Defendant stated that “[n]o documentation has
been submitted to State Farm regarding any claimed attendant care or medical
treatment since the date of the directed verdict against your clients and there is no
foundation for any claim they are presently making. . . . Your client has not
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submitted any of her expenses other than an occasional pharmacy bill for drugs
that do not appear to be related to the accident.” Def.’s Ex. 2. Defendant suggested
that Plaintiff dismiss her complaint and warned of its intention to seek Rule 11
sanctions.
In response, Plaintiff’s counsel wrote: “[My understanding was that Mrs.
Pakenas was still submitting claims to State Farm for attendant care PIP benefits.
Apparently she has stopped doing this without my knowledge. . . . Although I
believe it is not necessary, I have contacted Ann Pakenas and told her to prepare
365 days of attendant care claims for the year immediately prior to the filing of our
current Complaint and I will submit them to you ASAP.” Def.’s Ex. 3. Despite
this, Plaintiff did not submit claims to State Farm for attendant care benefits.
On July 25, 2013, Defendant served a copy of its motion for sanctions on
Plaintiff, in accordance with Fed. R. Civ. P. 11(c)(2). Plaintiff filed a motion to
amend her complaint on February 23, 2014. The proposed amended complaint
stated that State Farm was aware of the nature of Plaintiff’s claims, due to the
previous litigation between the parties and proofs of claim that have been
submitted over the past twelve years, which “are virtually identical.” Amended
Compl. at ¶¶ 10-12 (Docket No. 9). It is perplexing that Plaintiff would choose to
rely upon previous proofs of claim, which this court has found to be insufficient.
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Essentially, Plaintiff appears to contend that she is not required to submit a formal
proof of claim as a result of the past dealings between the parties.
Defendant opposed Plaintiff’s motion to amend her complaint on futility
grounds, relying in part on deposition testimony provided by Patti Rogers’s
husband, John Rogers. John Rogers testified that he did not know what his hourly
rate for attendant care was and that he had no idea how many hours he was
claiming for attendant care. Rogers Dep. at 26-27. Plaintiff withdrew the motion
to amend on April 2, 2014, shortly after she filed the motion to voluntarily dismiss
this action.
Defendant sought sanctions pursuant to Fed. R. Civ. P. 11, based upon the
lack of factual or legal support for Plaintiff’s complaint. Plaintiff filed this case
seeking attendant care benefits, without filing a proof of claim or providing any
documentation whatsoever that attendant care was actually provided. Under
similar circumstances, in previous litigation, this court entered a directed verdict
and awarded sanctions in excess of $200,000. The court explained: “Given the
evidence, the jury had no reasonable basis to award 24-hour-per-day attendant care
and no reasonable basis to estimate how much care, if any, was actually provided.”
Case No. 05-60152, Docket No. 142 at 3. Plaintiff’s latest complaint similarly
lacks factual support; indeed, John Rogers admitted that he does not keep records
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of the attendant care provided to Patti Rogers. Plaintiff’s attempt to voluntarily
dismiss – more than a year after the complaint was filed and after Defendant
warned of its intent to seek sanctions, comes too late to absolve her and her
counsel. For these reasons, the court finds that sanctions are appropriate and
declines to reconsider the issue.
Plaintiff requests that the court’s August 21, 2014 order be amended to state
that it “does not preclude any claims that Patti Rogers may have against Defendant
for No-Fault Benefits incurred after August 21, 2014.” Such an amendment is
unnecessary. The complaint in this matter sought benefits from 2009 to 2013, not
future benefits; the dismissal with prejudice does not contemplate matters outside
the complaint. The court cautions Plaintiff and her counsel, however, that the
repeated filing of unsubstantiated claims will not be tolerated.
IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration is
DENIED.

s/John Corbett O’Meara
United States District Judge

Date: September 10, 2014
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I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, September 10, 2014, using the ECF system.

s/William Barkholz
Case Manager

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