Houston v. Bankers Life and Casualty Company

Filing 168

REPORT AND RECOMMENDATIONS re 88 MOTION to Amend/Correct 21 Preliminary Injunction, Terminate Motions Motion to Modify Language of Agreed Preliminary Injunction to Change Recipient of Payments Thereunder, proposed order to be submitted MOT ION to Amend/Correct 21 Preliminary Injunction, Terminate Motions Motion to Modify Language of Agreed Preliminary Injunction to Change Recipient of Payments Thereunder, proposed order to be submitted MOTION to Amend/Correct 21 Preliminary Injunction, Terminate Motions Motion to Modify Language of Agreed Preliminary Injunction to Change Recipient of Payments Thereunder, proposed order to be submitted MOTION to Amend/Correct 21 Preliminary Injunction, Terminate Motions Motio n to Modify Language of Agreed Preliminary Injunction to Change Recipient of Payments Thereunder, proposed order to be submitted filed by Norma Houston, 105 Second MOTION to Amend/Correct 21 Preliminary Injunction, Terminate Motions propos ed order to be submittedSecond MOTION to Amend/Correct 21 Preliminary Injunction, Terminate Motions proposed order to be submitted filed by Norma Houston Objections to R&R due by 12/17/2010. Signed by Magistrate Judge Edward G. Bryant on 12/3/10. (Bryant, Edward)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
)
)
NORMA HOUSTON
ex rel. LOIS FARMER,
)
)
Plaintiff,
)
)
)
v.
) Case No. 1:10-cv-01173-JDB-egb
)
)
BANKERS LIFE AND CASUALTY )
COMPANY,
)
)
Defendant.
)
REPORT AND RECOMMENDATION
On referral to this Court for determination and/or report and recommendation is Plaintiff’s
Motion to Modify Agreed Preliminary Injunction [D.E.88] and Plaintiff’s Second Motion to
Amend/Correct/Modify/Revise Agreed Preliminary Injunction [D.E.105]. Defendant has responded
in opposition [D.E.137].
This Court held a hearing on these motions on November 22, 2010. Presenting arguments
were attorneys Lewis Cobb and Drew Farmer for Plaintiff and Paul Bolus and Gary Howard for
Defendant. From these arguments, it appears to the Court that Plaintiff’s first motion is moot. There
is no disagreement between the parties that Defendant properly continues to pay Mrs. Farmer’s
monthly long-term care expenses (to the extent and manner provided for by the terms of her
insurance policy) directly to the nursing home. The nursing home then reimburses Medicaid and /or
TennCare. As such, the Magistrate Judge recommends that Plaintiff’s motion [D.E.88] be found
moot.
The Court next turns to the Plaintiff’s second motion to modify the Agreed Preliminary
Injunction [D.E. 21]. As of the date of this hearing, November 22, 2010, the parties agreed that

some one-hundred fifty (150) days of payments remained in Mrs. Farmer’s policy with Defendant.
It is also the understanding of this Court that the continuation of Medicaid/TennCare payments for
Mrs. Farmer’s long term care will be unaffected by the expiration of her policy benefits. In other
words, Mrs. Farmer’s care is established and will continue regardless of this injunction.
The injunction at issue was an agreed one between these parties, but now the Defendant
does not agree to any further modification. Therefore, the Court must consider whether the
circumstances now warrant, in effect, permitting Plaintiff to unilaterally amend the current
injunction. Under these circumstances, this Court does not believe it is necessary or needed. As
Defendant now argues, this effort is premature and not ripe for adjudication, since payments are
being made. But even when the policy payments are exhausted, it seems clear that Mrs. Farmer will
be able to remain in the same position she is in now, unaffected by any dispute(s) with Defendant
over the terms and conditions of her policy or the policy limits. Should Plaintiff prevail later, then
Defendant would be liable to pay. But, none of the current scenarios merit the modification or
extension of the existing agreed injunction. Thus, the Magistrate Judge recommends that Plaintiff’s
second motion to amend [D.E.105] be denied.
Respectfully submitted,
s/Edward G. Bryant
EDWARD G. BRYANT
UNITED STATES MAGISTRATE JUDGE
Date: December 3, 2010
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28
U.S.C. § 636(b)(1)(C). FAILURE TO FILE THEM WITHIN FOURTEEN (14) DAYS MAY
CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY FURTHER
APPEAL.

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