Jensen v. North River Insurance Co
Filing
12
MEMORANDUM AND ORDER granting Defendant's 10 Motion for Summary Judgment. Judgment to enter in favor of North River Insurance Company. So Ordered by Senior Judge Mary M. Lisi on 12/4/2015. (Feeley, Susan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
SCOTT JENSEN, in his capacity as Director
of the Rhode Island Department of Labor
and Training,
Plaintiff,
v.
C.A. No. 15-083-MML
NORTH RIVER INSURANCE COMPANY,
Defendant.
MEMORANDUM AND ORDER
The plaintiff in this bond insurance coverage case, Scott
Jensen ("Jensen"), in his capacity as Director of the Rhode Island
Department of Labor and Training ("DLT"), brought a claim against
North River Insurance Company ("North River") in connection with a
workers compensation bond (the “Bond”) issued by North River to
Landmark Health Systems, Inc. ("Landmark"). The matter is before
the Court on North River's motion for summary judgment, to which no
response in opposition was filed by Jensen. For the reasons stated
herein, North River's motion is GRANTED.
I.
Factual Background and Procedural History1
On September 24, 1990, North River issued the Bond to Landmark
as the principal and for the benefit of DLT. DSUF 2. The Bond,
1
The facts in this summary are taken from (1) North River’s
Statement of Undisputed Facts (“DSUF”), to which no response was
received as of the date of this Memorandum and Order, and (2) the
exhibits attached to the DSUF, which include the Bond, the notice
of cancellation, documents related to the claim at issue, and
various items of correspondence between the parties.
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limited to a penal sum of $500,000, secured payment of benefits and
services pursuant to R.I. Gen. Laws 28-33 and 28-34, including
workers compensation for Landmark employees. DSUF 3. Landmark,
which was self-insured at the time in question, was responsible for
a portion of workers compensation claim payments. After that,
Republic
Western
Insurance
Company
("Republic
Western")
was
responsible to pay medical and other expenses under an excess
policy (the "Excess Policy") and Landmark was obligated to make
continuing indemnity payments. DSUF 4.
After a number of annual renewals, the Bond was cancelled
effective October 1, 1999, and, as DLT acknowledged, no liability
exists under the Bond for injuries incurred on or after that date.
DSUF 5, 6.
Following an injury on November 17, 1998, a workers
compensation claim was made by Frances Valeika (the "Valeika
Claim"). DSUF 7. After compensation payments were ordered in 1999,
Landmark made payments on the Valeika Claim, first directly and,
beginning in 2003, through Beacon Mutual Insurance Co. as its third
party administrator.
DSUF 8, 9.
After Landmark's payments on the
Valeika Claim reached $350,000, Republic West began reimbursing
Landmark for medical and other expenses pursuant to the Excess
Policy, while Landmark continued to make indemnity payments. DSUF
10.
In
2008,
Landmark
entered
receivership.
Pursuant
to
an
agreement with its court-appointed receiver, the indemnity payments
2
on the Valeika Claim continued. DSUF 11. Landmark's assets were
acquired by Prime Healthcare, which failed to continue making the
indemnity payments. DSUF 12. Republic West continued to make
medical and other payments on the Valeika Claim. DSUF 13.
As provided for in the Bond, North River assumed the indemnity
portion of the Valeika Claim that was not paid by Republic West.
DSUF 14. As of August 1, 2015, North River had made indemnity
payments of $94,502 on the Valeika Claim. DSUF 15. Subsequently,
the DLT requested a $77,786 contribution from North River to settle
the Valeika Claim, to which North River agreed. DSUF 15, 16.
A
letter dated November 17, 2014 from DLT to North River indicates
that, although North River's requested contribution to the Valeika
Claim settlement was set at $77,876, DLT asked for immediate
payment of $150,000 under the Bond to "allow the Department to
maintain other funds for potential claims." Defs.' Ex. H (Dkt. No.
11-9).
Per e-mail dated November 19, 2013, DLT confirmed that
there was only one open claim (the Valeika Claim) against the Bond.
DSUF 18; Defs.'s Ex. J (Dkt. No. 11-11).
On February 6, 2015, DLT filed a complaint against North River
in Rhode Island state court, which was removed by North River to
this Court on March 3, 2015 (Dkt. No. 1-2). North River filed an
answer on March 9, 2015 (Dkt. No. 4). The Court conducted a Rule 16
conference on April 17, 2015, at which counsel for both parties
were present (Dkt. Entry 04/17/15). Subsequently, the Court entered
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a pretrial order pursuant to which dispositive motions were due by
July 31, 2015 (Dkt. No. 8). By stipulation of the parties, that
deadline was further extended to September 30, 2015. (Dkt. No. 9).
On September 30, 2015, North River filed a motion for summary
judgment (Dkt. No. 10), together with a supporting memorandum (Dkt.
No. 10-1), a separate statement of undisputed facts (Dkt. No. 11),
the affidavit of Sarah Stas, Executive Specialist for North River's
parent company (Dkt. No. 11-1), and various exhibits (Dkt. Nos.
11-2 through 11-11).
DLT's response to North River's motion was
due on October 19, 2015 (Dkt. Entry 10/27/2015).2 As of the date of
this Memorandum and Order, no response was received to North
River’s motion.
II.
Standard of Review
A motion for summary judgment is governed by Fed. R. Civ. P.
56. The party moving for summary judgment has the burden of
demonstrating 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); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party
meets that
burden,
the
nonmoving
party must set
forth
facts
2
On October 26, 2015, concerned about the unusual lack of
response to a dispositive motion, the Clerk contacted the parties
via e-mail and advised counsel for DLT that the response to North
River’s motion was a week overdue. There was no response to the
Clerk’s e-mail, nor was a request made for an extension of time in
this matter.
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demonstrating the existence of a genuine dispute. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2506, 91 L.Ed.2d
202 (1986).
Pursuant to Local Rule LR Cv 7(b)(1), “[a]ny party opposing a
motion shall file and serve an objection not later than 14 days
after service of the motion,” accompanied by a separate memorandum
of law setting forth the reasons for the objection and applicable
points and authorities supporting the objection.
Local Rule 56,
which requires a moving party to submit a separate Statement of
Undisputed Facts, LR Cv 56(a)(1), (2), provides that “any fact
alleged in the movant’s Statement of Undisputed Facts shall be
deemed admitted unless expressly denied or otherwise controverted
by a party objecting to the motion.” LR Cv 56 (a)(3).
With respect to failure of a party to address another party’s
assertions, Federal Rule 56(e) provides that
“[i]f a party fails to properly support an assertion
of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court
may:
(1)
(2)
(3
(4)
give an opportunity to properly support or address
the fact;
consider the fact undisputed for purposes of the
motion;
grant summary judgment if the motion and supporting
materials—including
the
facts
considered
undisputed—show that the movant is entitled to it;
or
issue any other appropriate order. Fed. R. Civ. P.
56(e)(1)-(4) (emphasis added).
In the event a “non-moving party fails to file a timely
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opposition to an adversary's motion for summary judgment, the court
may consider the summary judgment motion unopposed, and take as
uncontested all evidence presented with that motion.” Perez-Cordero
v. Wal-Mart Puerto Rico, 440 F.3d 531, 533-534 (1st Cir. 2006). The
First Circuit has advised that a district court “cannot grant a
motion for summary judgment merely for lack of response by the
opposing party, since the district court must review the motion and
the supporting papers to determine whether they establish the
absence of a genuine issue of material fact...” De La Vega v. San
Juan Star, Inc., 377 F.3d 111, 115 (1st Cir. 2005)(citing NEPSK,
Inc. v. Town of Houlton, 283 F.3d 1, 7–8 (1st Cir.2002) (“[A]
district court may not automatically grant a motion for summary
judgment simply because the opposing party failed to comply with a
local
rule
requiring
a
response
within
a
certain
number
of
days.”)). With these principles in mind, the Court considers North
River’s motion for summary judgment.
III. Discussion
Although its motion for summary judgment is unopposed, North
River, as the moving party, must “meet its burden to demonstrate
undisputed facts entitling it to summary judgment as a matter of
law.” De La Vega, 377 F.3d at 115-116. However, because there has
been no response from DLT, which bears the ultimate burden of proof
on its claim under the Bond, North River's facts are entirely
undisputed.
Moreover,
North
River's
6
representations
are
amply
supported by the plain language of the Bond and the submitted
exhibits which chronicle the interactions between the parties.
It is undisputed that the Bond was cancelled effective October
1, 1999 and that North River was “not responsible thereunder for
any Acts or Defaults committed or Loss occurring after said date of
cancellation.”
Defs.’ Exs. C, D (Dkt. Nos. 11-4, 11-5). North
River asserts—and DLT does not dispute, nor has it offered any
evidence to the contrary—that the only outstanding claim asserted
against the Bond is that of Frances Valeika. Defs.’ Ex. J (Dkt. No.
11-11). After Prime Healthcare acquired Landmark’s assets and
failed to make indemnity payments on the Valeika Claim, North River
made payments totaling $94,502 on the Valeika Claim. Defs.’ Ex. G
(Dkt. No. 11-8). Eventually, the Valeika Claim was settled by
Republic West, which sought a $77,876 contribution from DLT. Defs.’
Ex. H (Dkt. No. 11-9). In turn, DLT
requested that North River pay
that amount3 under the Bond, to which North River agreed. Defs.’
Exs. H, I (Dkt. Nos. 11-9, 11-10).
The Bond requires payment only to “persons entitled thereto,”
Ex. A at Page 2 of 5, ¶ 4(Dkt. No. 11-2), i.e., to “persons who may
be entitled to such sums for the compensation benefits and services
3
It is unstated on what grounds DLT requested immediate payment
of $150,000 to settle the Valeika Claim and to “allow the
Department to maintain other funds for potential claims,” fifteen
years after the Bond had been cancelled and with no assertion of
additional claims thereunder.
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provided by” Rhode Island’s worker compensation laws, R.I. Gen.
Laws §§ 28-33, 28-34. Id. at ¶ 5. Nothing in those statutes or in
the Bond itself imposes an obligation on North River to pay the
full amount of the Bond’s penal sum to DLT without a corresponding
identified and approved claim. In the absence of even an assertion
that such a claim exists; that such a claim may be raised more than
sixteen years after the Bond was cancelled; or of any factual or
legal support for DLT’s demand under the Bond, DLT cannot withstand
North River’s motion for summary judgment.
Conclusion
Based on the foregoing, North River’s motion for summary
judgment is GRANTED. The Clerk is directed to enter judgment in
favor of North River.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Senior United States District Judge
December 4, 2015
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