Karnofsky v. Massachusetts Mutual Life Insurance Company

Filing 59

ORDER denying 33 Motion for Partial Summary Judgment; granting in part and denying in part 34 Motion for Summary Judgment. Signed by Honorable Patrick Michael Duffy on December 7, 2015.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Roberta Karnofsky,
Plaintiff,
v.
Massachusetts Mutual Life
Insurance Company,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

C.A. No.: 2:14-cv-949-PMD
ORDER

This matter is before the Court on cross-motions for summary judgment filed by Plaintiff
(ECF No. 33) and Defendant (ECF No. 34). For the reasons set forth herein, Defendant’s
Motion is granted in part and denied in part, and Plaintiff’s Motion is denied.
BACKGROUND
This action arises out of a dispute over disability insurance benefits. Plaintiff “is a
physician who has specialized and was Board certified in Anesthesiology since 1993.” (Pl.’s
Mem. Supp. Mot. Partial Summ. J., ECF No. 33-1, at 3.) In 1994, Plaintiff “purchased a
disability policy with an ‘Own Occupation Rider’ from Connecticut Mutual Life Insurance
Company now known as Massachusetts Mutual Life Insurance Company.” (Id. at 1.) Plaintiff
was subsequently injured in a serious automobile accident. 1 Plaintiff’s injuries have prevented
her from performing anesthesia in the operating room. However, she is still able to treat pain
management patients as she did before she became disabled. Before the accident, Plaintiff
derived approximately fifty percent of her income from operating room procedures and the other
fifty percent from pain management procedures.
______________________________________________________________________________
1.
Plaintiff’s automobile accident occurred on April 10, 2007. On March 30, 2010, “Plaintiff sued her
underinsured carrier to recover damages in excess of those she recovered from the driver that hit her.” (Def.’s Mem.
Supp. Mot. Summ. J., ECF No. 34-1, at 3.)

In 2011, Plaintiff filed for total disability benefits pursuant to her disability insurance
policy. From July 12, 2011, to March 9, 2012, Defendant paid Plaintiff total disability benefits
while Plaintiff underwent two surgeries, but did not make any total disability payments
thereafter. Defendant did pay Plaintiff partial disability benefits for a brief period from March
10, 2012, to June 9, 2012. After a lengthy period of correspondence, Plaintiff filed suit on
February 6, 2014.
Plaintiff moved for partial summary judgment on the grounds that she is totally disabled
under the terms of the policy. Her policy states:
The insured is Totally Disabled if he/she cannot perform the main duties
of his/her Occupation due to Sickness or Injury. The insured must be
under a Doctor’s Care.
(Def.’s Mot. Summ. J., Exh. A, ECF No. 34-2, at 11.) (emphasis added). In contrast, the policy
defines partial disability as follows:
The insured is Partially Disabled if he/she:
• Is suffering from a current Disability;
• Is working at his/her occupation;
• Has a loss of Income;
• Is under a Doctor’s Care; and
• Can show a Demonstrated Relationship between the Loss of
Income and the current Disability.
(Id.) (emphasis added). Defendant asserts it is entitled to summary judgment on several grounds.
First, Defendant argues because Plaintiff can still perform some of the duties of her occupation,
she does not qualify for total disability. Second, Defendant asserts “Plaintiff was not entitled to
disability benefits from April 2007 to September 10, 2011 because Plaintiff did not comply with
the Notice of Claim provision of her policy” or “the Proof of Disability provision of her policy.”
(Def.’s Mot. Summ. J., ECF No. 34, at 1–2.) Third, Defendant claims “Plaintiff is not entitled to
‘Partial Disability’ benefits after June 2012 because Plaintiff failed to establish that there was a

‘Demonstrated Relationship’ between any alleged ‘Loss of Income’ and her claimed disability.”
(Id. at 2.) Fourth, Defendant states Plaintiff’s claims for bad faith, punitive damages, and future
disability benefits fail as a matter of law. Finally, Defendant asserts Plaintiff has not shown
sufficient evidence to support a claim for emotional distress.
PROCEDURAL HISTORY
On July 6, 2015, Plaintiff filed her Motion for Partial Summary Judgment. That same
day, Defendant also filed its Motion for Summary Judgment. The parties both filed responses to
the respective motions on July 23, and each filed a reply on August 3. This matter is now ripe
for consideration.
LEGAL STANDARD
To grant a motion for summary judgment, a court must find that “there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence
but rather must determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). All evidence should be viewed in the light most favorable to the
nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990). “[I]t
is ultimately the nonmovant’s burden to persuade [the court] that there is indeed a dispute of
material fact. It must provide more than a scintilla of evidence—and not merely conclusory
allegations or speculation—upon which a jury could properly find in its favor.” CoreTel Va.,
LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citations omitted). “[W]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
disposition by summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra,
Inc., 947 F.2d 115, 119 (4th Cir. 1991). Summary judgment is not “a disfavored procedural

shortcut,” but an important mechanism for weeding out “claims and defenses [that] have no
factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
When opposing parties file motions for summary judgment, the trial court applies the
same standard of review to both motions. See Northfield Ins. Co. v. Boxley, 215 F. Supp. 2d 656,
657 (D. Md. 2002). “The role of the court is to ‘rule on each party’s motion on an individual and
separate basis, determining, in each case, whether a judgment may be entered in accordance with
the Rule 56 standard.’” Id. at 658 (quoting Towne Mgmt. Corp. v. Hartford Acc. & Indem. Co.,
627 F. Supp. 170, 172 (D. Md. 1985)); see also Mingus Constructors, Inc. v. United States, 812
F.2d 1387, 1391 (Fed. Cir. 1987) (“[T]he court must evaluate each party’s motion on its own
merits, taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.”). The mere fact that both parties seek summary judgment “does
not ‘establish that there is no issue of fact and require that summary judgment be granted to one
side or another.’” World-Wide Rights Ltd. P’ship v. Combe Inc., 955 F.2d 242, 244 (4th Cir.
1992) (quoting Am. Fid. & Cas. Co. v. London & Edinburgh Ins. Co., 354 F.2d 214 (4th Cir.
1965)); see also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n.3 (4th Cir. 1983) (“The
court is not permitted to resolve genuine issues of material facts on a motion for summary
judgment—even where . . . both parties have filed cross motions for summary judgment.”); Lac
Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.
1983) (“[C]ross-motions for summary judgment do not automatically empower the court to
dispense with the determination whether questions of material fact exist.”).

Nevertheless,

dueling motions for summary judgment “may be probative of the nonexistence of a factual
dispute,” because “when both parties proceed on the same legal theory and rely on the same
material facts the court is signaled that the case is ripe for summary judgment.” Shook v. United

States, 713 F.2d 662, 665 (11th Cir. 1983) (citing Bricklayers, Masons & Plasterers Int’l Union
v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)); see also Nafco Oil & Gas, Inc. v.
Appleman, 380 F.2d 323, 325 (10th Cir. 1967) (“[B]y the filing of a [summary judgment] motion
a party concedes that no issue of fact exists under the theory he is advancing, but he does not
thereby so concede that no issues remain in the event his adversary’s theory is adopted.”).
DISCUSSION
The parties have both moved for summary judgment on the question of whether Plaintiff
is totally disabled pursuant to the terms of her policy. Accordingly, the Court will address that
issue first and then proceed to the remainder of Defendant’s Motion.
I. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves for Partial Summary Judgment on the ground that she is totally disabled
under the terms of her policy. She asserts several arguments to support her claim. As the Court
has jurisdiction pursuant to 28 U.S.C. § 1332, 2 the Court must apply South Carolina law and,
where necessary, predict how the Supreme Court of South Carolina would decide a particular
issue. See Nationwide Mut. Ins. Co. v. Powell, 292 F.3d 201, 203 (4th Cir. 2002); Hartsock v.
Am. Auto. Ins. Co., 788 F. Supp. 2d 447, 450–51 (D.S.C. 2011).
“The cardinal rule of contract interpretation is to ascertain and give effect to the intention
of the parties.” Chan v. Thompson, 395 S.E.2d 731, 734 (S.C. Ct. App. 1990) (citing RentCo., a
Div. of Fruehauf Corp. v. Tamway Corp., 321 S.E.2d 199 (S.C. Ct. App. 1985)). “The rights of
the parties must be measured by the contract which the parties themselves made, regardless of its
wisdom, reasonableness, or failure of the parties to guard their rights carefully.” Id. (citing
Conner v. Alvarez, 328 S.E.2d 334, 336 (S.C. 1985)). “When a contract is perfectly plain and
______________________________________________________________________________
2.
Plaintiff and Defendant are in complete diversity of citizenship and the amount in controversy exceeds
$75,000.00.

capable of legal construction the language of the contract determines the full force and effect of
the document.”

Id. (citing Conner, 328 S.E.2d at 336).

“Under South Carolina law the

interpretation of an insurance policy is a matter of law.” Graf v. Allstate Ins. Co., No. 2:06-cv1045-CWH, 2007 WL 221244, at *1 (D.S.C. Jan. 25, 2007) (citing TCX, Inc. v. Commonwealth
Land Title Ins. Co., 928 F. Supp. 2d 618, 624 (D.S.C. 1995).
The crux of the parties’ disagreement over the contract language is the meaning of “main
duties.” The policy provides that in order for Plaintiff to be eligible for total disability benefits,
she must be unable to perform the main duties of her occupation. Regrettably, the parties chose
not to define “main duties” in their agreement. Nonetheless, the Court need not define that term
as it finds that the plain meaning of the total disability provision requires that Plaintiff be unable
to perform more than one main duty. The parties’ use of the plural form of duty necessarily
requires that Plaintiff be unable to perform more than one of her main duties. Although Plaintiff
is an anesthesiologist, it is undisputed that performing anesthesia in the operating room only
constituted fifty percent of Plaintiff’s income before the accident, and a relatively low portion of
her working hours.

The remaining fifty percent of her income was derived from pain

management procedures. Importantly, before the car accident, Plaintiff spent one day a week
performing anesthesia and the other four days performing pain management procedures.
Plaintiff asserts that performing anesthesia in the operating room is the only main duty of her
occupation as an anesthesiologist.

The Dictionary of Occupational Titles states that an

anesthesiologist’s occupation consists solely of performing anesthesia during “surgical,
obstetrical, and other medical procedures.” (Pl.’s Mem. Supp. Mot. Partial Summ. J., ECF No.
33-1, at 3 n.2.) However, her practice prior to the accident indicates otherwise. If operating
room anesthesia constituted one of Plaintiff’s main duties, pain management procedures must

also have constituted one of her main duties since they occupied more of her time and provided
an equal amount of income. Accordingly, since Plaintiff is able to perform at least one of the
main duties of her occupation, she cannot be totally disabled under the plain meaning of the
policy.
Additionally, the Court agrees with Defendant that Plaintiff’s interpretation of the total
disability provision would give no effect to the partial disability provision of her policy. As
stated in Parker v. Byrd, “‘[w]here the agreement in question is a written contract, the parties’
intention must be gathered from the contents of the entire agreement and not from any particular
clause therein.’” 420 S.E.2d 850, 852 (S.C. 1992) (quoting Thomas-McCain, Inc. v. Siter, 232
S.E.2d 728, 729 (S.C. 1977)).

Here, if Plaintiff were considered totally disabled while

continuing to work at her occupation, there would never be a situation in which the partial
disability provision of Plaintiff’s policy would apply.

According to the policy, a partially

disabled insured is someone who, inter alia, “is suffering from a current Disability” and “is
working at his/her occupation.” (Def.’s Mot. Summ. J., Exh. A, ECF No. 34-2, at 11.) Here,
Plaintiff is suffering from a current disability but is continuing to work at her occupation. Thus,
it appears that she fits perfectly within the definition of partial disability. To interpret the
contract differently would torture the parties’ intent.

Having decided that under the plain

meaning of the contract Plaintiff is not totally disabled, the Court declines to address Plaintiff’s
remaining arguments. Accordingly, Plaintiff’s Motion for Partial Summary Judgment is denied
and Defendant’s Motion for Summary Judgment is granted as to total disability benefits.

II. Defendant’s Motion for Summary Judgment
In addition to moving for summary judgment on the total disability provision as
discussed above, Defendant also moved for summary judgment on several other grounds that are
addressed below.
A. Notice of Claim and Proof of Loss
Defendant contends it does not owe Plaintiff any benefits for the period from April 2007,
to September 10, 2010, on the grounds that, during that time, Plaintiff did not comply with either
the “notice of claim” or “proof of loss” provisions of her policy. “As a general rule, breach of an
insurance policy’s notice clause automatically relieves the insurer of its obligations under the
contract, including the payment of proceeds due.” Wright v. UNUM Life Ins. Co., No. 2:992394-23, 2001 WL 34907077, at *2 (D.S.C. Aug. 31, 2001). “The burden of proof for the
insured’s failure to notice rests with the insurer.” Id. (citing Vermont Mut. Ins. Co. v. Singleton,
446 S.E.2d 417, 421 (S.C. 1994)). “‘No rule of law is more firmly established in this jurisdiction
than that one suing on a policy of insurance, where the notice required by the policy is not timely
given, cannot recover . . . .’” Prior v. S.C. Med. Malpractice Liab. Ins. Joint Underwriting
Ass’n, 407 S.E.2d 655, 657 (S.C. Ct. App. 1991) (quoting Lee v. Metro. Life Ins. Co., 186 S.E.
376, 381 (S.C. 1936)). In the first party insurance dispute context, “the court has gone so far as
to hold that the failure to give the required notice in the allotted time is fatal to the right of
recovery, even if it be shown that the insurance company has suffered no harm by the delay.”
Lee, 186 S.E. at 381. Plaintiff’s policy provides, “[a] written notice describing the Insured’s
Disability should be sent to Our Home Office. Send it within 20 days after the Disability occurs
or as soon as reasonably possible.” (Def.’s Mem. Supp. Mot. Summ. J., ECF No. 34-1, at 16.)
In Vermont Mutual Insurance Co. v. Singleton, the South Carolina Supreme Court interpreted

very similar language to “or as soon as reasonably possible” to mean “within a reasonable time
frame.” 446 S.E.2d 417, 422 (S.C. 1994).
Here, where Plaintiff has known of her disability since April 2007, 3 and where Plaintiff
filed suit in 2010 against her automobile insurance carrier seeking damages for permanent
impairment and disability, the Court finds that Plaintiff failed to notify Defendant within a
reasonable time frame. Plaintiff failed to file her notice of claim with Defendant until September
12, 2011, more than four years after her accident. Although Plaintiff asserts that she did not file
because she did not want to consider herself disabled, that argument is not founded on any legal
basis.

Thus, although Plaintiff’s desire to recover is admirable, Defendant’s Motion for

Summary Judgment must be granted as to the period from April 2007 through September 10,
2010.
Although prejudice is not required under South Carolina law, the Court concludes that
Defendant was prejudiced by Plaintiff’s failure to timely notify Defendant of her claim.
Plaintiff’s policy included rights that, due to Plaintiff’s delay, Defendant was unable to assert in
a timely manner. For example, the policy entitled Defendant to have Plaintiff undergo a medical
exam. Plaintiff’s argument that Defendant waived timely notice of claim by investigating
Plaintiff’s injury is unsupported by any citation to law. Additionally, Defendant’s
communications with Plaintiff about her claim each state that Plaintiff’s failure to provide timely
notice might have caused prejudice to Defendant and do not state that Plaintiff’s claim will be
paid. Having concluded Plaintiff’s failure to notify Defendant of her claim is sufficient, with or

______________________________________________________________________________
3. In her deposition, Plaintiff states that she engaged counsel on April 10, 2007. (Def.’s Mot. for Summ. J., Exh.
B., Karnofsky Deposition, ECF No. 34-3, at 2.) As discussed in note 1, supra, April 10th was the date of her
accident. She further states that she authorized her counsel to file suit related to her car accident on March 30, 2010.
(Id. at 3.)

without prejudice, to grant Defendant summary judgment for the period from April 2007 to
September 10, 2010, the Court declines to address the parties’ arguments as to proof of loss.
B. Demonstrated Relationship
Defendant also asserts it is entitled to summary judgment for the period after June 2012,
because Plaintiff failed to establish a demonstrated relationship between her loss of income and
her disability. The Court disagrees. Although Defendant asserts that Plaintiff’s loss of income is
a result of factors independent of her disability, particularly the significant operating losses
incurred by Plaintiff’s new business, Plaintiff contradicts that assertion and states “when I saw
that my condition was making it more difficult for me . . . when I became less and less able to
earn a living the way I had been trained to earn a living[,] . . . that’s why I formed [the new
business].” (Karnofsky Dep., ECF No. 33-11, at 126.) Additionally, Defendant’s own expert
admitted that, as far as she knew, Plaintiff’s loss of income earned as an operating room
anesthesiologist was a result of her accident. (Mueller Dep., ECF No. 33-15, at 65.) The Court
finds that there is a genuine issue of material fact as to whether Plaintiff has established a
demonstrated relationship between her loss of income and her disability. Accordingly, summary
judgment is inappropriate and Defendant’s Motion is denied on this point.
C. Bad Faith
South Carolina recognizes the bad faith refusal to pay benefits cause of action where the
following elements are met:
(1) the existence of a mutually binding contract of insurance between the plaintiff
and the defendant; (2) refusal by the insurer to pay benefits due under the
contract; (3) resulting from the insurer’s bad faith or unreasonable action in
breach of an implied covenant of good faith and fair dealing arising on the
contract; (4) causing damage to the insured.
Crossley v. State Farm Mut. Auto. Ins. Co., 415 S.E.2d 393, 396–97 (S.C. 1992) (citing Bartlett
v. Nationwide Mut. Fire Ins. Co., 348 S.E.2d 530 (S.C. Ct. App. 1986)). It is undisputed that

there was a mutually binding contract of insurance between Plaintiff and Defendant and that
Defendant did not pay benefits on portions of Plaintiff’s claim. Additionally, Defendant’s
refusal to pay benefits, if wrongful, caused damage to Plaintiff because she did not obtain any
policy benefits for her disability. Thus, summary judgment turns on whether there are any
genuine issues of material fact as to the second and third elements. Although, as discussed
above, the Court finds that Plaintiff is not entitled to total disability as a matter of law, Plaintiff
asserts that Defendant wrongfully refused to pay both total and partial disability benefits. While
the Court agrees that Plaintiff’s injury did not constitute a total disability under the terms of the
policy, and that Plaintiff was not entitled to benefits until after September, 2010, there are
genuine issues of material fact as to whether her injury constituted a partial disability thereafter.
Accordingly, those partial disability benefits may have been “due under the contract.” If they
were, then Defendant’s bad faith refusal to pay would be at issue. To show bad faith, Plaintiff’s
expert, a former insurance claims supervisor, has testified that Defendant failed “to comply with
the [duty] of good faith and fair dealing” in administering Plaintiff’s claim. (Pl.’s Mem. Opp’n
Def.’s Mot. Summ. J., ECF No. 36, at 17.) Taken in the light most favorable to Plaintiff, a
reasonable jury could find that Defendant denied Plaintiff’s claim for benefits in bad faith based
on Plaintiff’s expert’s report and testimony. Accordingly, Defendant’s Motion is denied as to
Plaintiff’s bad faith claim.
D. Punitive Damages
Next, Defendant argues that it is entitled to summary judgment on punitive damages
because Plaintiff has failed to produce any clear and convincing evidence that Defendant handled
her claim willfully or recklessly. “In South Carolina, ‘the plaintiff has the burden of proving
punitive damages by clear and convincing evidence.’” Univ. Med. Assocs. of Med. Univ. of S.C.

v. UnumProvident Corp., 335 F. Supp. 2d 702, 712 (D.S.C. 2004) (quoting S.C. Code Ann. § 1533-135) (“Unum”). That evidence must show that “defendant’s misconduct was willful, wanton,
or in reckless disregard of the plaintiff’s rights.” Id. (quoting Scott v. Porter, 530 S.E.2d 389,
396 (S.C. 2000)). “Conduct is willful, wanton, or reckless when it is committed with a deliberate
intention or in such a manner or under such circumstances that a person of ordinary prudence
would be conscious of it as an invasion of another’s rights.” Bryant v. Muskin Co., 873 F.2d
714, 715 (4th Cir. 1989). Here, viewing the evidence in the light most favorable to the Plaintiff,
the Court concludes that Defendant is not entitled to summary judgment based on the report and
testimony of Plaintiff’s expert. She stated:
It is my opinion Mass Mutual failed to: fully investigate the relevant and
applicable facts of the claim, fairly consider all information obtained, including
that which tends to favor claim payment or continuation as well as that which
tends to favor claimed declination or termination; consider the interests of its
insureds at least equal to its own; promptly and timely pay benefits owed under
the policy; know and understand the language and meaning of their insurance
policies; and conduct a fair, thorough, and objective review. The violation of
those duties constitutes a failure to comply with the good (sic) of good faith and
fair dealing.
(Fuller Report, ECF No. 36-12, at 7.) A reasonable jury could make a fair inference, based on
Plaintiff’s expert’s evidence, that Defendant’s conduct in denying Plaintiff’s claims was willful,
wanton, or reckless.
E. Future Disability Benefits
Next, Defendants contend that they are entitled to summary judgment on Plaintiff’s
claims for future disability benefits. The Court agrees. Plaintiff cites to Nichols v. State Farm
Mutual Insurance Co. and the California case it relied on, Egan v. Mutual of Omaha Insurance
Co., for the proposition that a bad faith claim’s damages include the future value of the insurance
policy calculated to present value. 306 S.E.2d 616 (S.C. 1983); 620 P.2d 141 (Cal. 1979).

However, as discussed in this Court’s published decision in Unum, the reasoning for disallowing
future benefits in a breach of contract action also applies to a bad faith claim. 335 F. Supp. 2d at
710–11; see also O’Dell v. United Ins. Co. of Am., 132 S.E.2d 14 (S.C. 1963); Odiome v.
Prudential Ins. Co. of Am., 179 S.E. 669 (S.C. 1935).

In particular, there is always the

possibility “that an insured could recover from disability, and thus reach a stage where benefits
are not due.” Unum, 335 F. Supp. 2d at 711 (citing Odiome, 179 S.E. at 670). Odiome and
O’Dell “have not been overruled in the bad faith context, and the reasoning still seems to apply.”
Id. The Court notes that its decision in Wright was made without reference to Odiome and
O’Dell, and that the defendants in Wright did not offer “a persuasive reason to limit, as a matter
of law, the type of consequential damages allowed for bad faith refusal to pay insurance
benefits.”

2001 WL 34907077, at *12. Upon review of Judge Norton’s in-depth analysis in

Unum and the Odiome line of cases, the Court agrees that future disability benefits are
unavailable in a South Carolina bad faith cause of action. Accordingly, Defendant’s Motion for
Summary Judgment is granted as to future disability benefits.
F. Emotional Distress
Finally, Defendants move for summary judgment as to Plaintiff’s claims for emotional
distress. The Fourth Circuit has ruled that an insurer’s failure to pay benefits cannot render it
liable for emotional distress unless the failure to pay is the proximate cause of that distress. State
Farm Fire & Cas. Co. v. Barton, 897 F.2d 729, 733 (4th Cir. 1990). Plaintiff has produced the
report of an expert licensed clinical psychologist who states that, in his opinion, “[Plaintiff’s]
lack of income as well as being the victim of an antagonist (sic) relationship with the disability
insurance carrier has contributed significantly to the level of morbidity that she has been
experiencing.” (Waid Report, ECF No. 36-14, at 10.)

In contrast, Defendant asserts that its

refusal to pay cannot be the proximate cause of Plaintiff’s emotional distress because in the
expert’s deposition he could not state that Plaintiff’s depression and anxiety were solely caused
by Defendant. (Waid Dep., ECF No. 34-11, at 8–9.) Viewing the evidence in the light most
favorable to the Plaintiff, the Court finds that there is a genuine issue of material fact as to
whether Plaintiff’s emotion distress was proximately caused by Defendant’s failure to pay.
Accordingly, Defendant’s motion for summary judgment as to emotional distress is denied.
CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s Motion for Partial Summary
Judgment is DENIED.

It is further ORDERED that Defendant’s Motion for Summary

Judgment is GRANTED IN PART AND DENIED IN PART.
AND IT IS SO ORDERED.

December 7, 2015
Charleston, South Carolina