Bancroft v. Minnesota Life Insurance Company

Filing 64

ORDER denying Plaintiff's 29 Motion for Partial Summary Judgment and granting Defendant's 35 Cross Motion for Summary Judgment with respect to all of Mr. Bancroft's claims. Signed by Judge James L. Robart. (PM)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

COLIN BANCROFT,

CASE NO. C17-1312JLR
ORDER ON CROSS MOTIONS
FOR SUMMARY JUDGMENT

Plaintiff,

11
v.
12
13

MINNESOTA LIFE INSURANCE
COMPANY,

14

Defendant.

15
I.

INTRODUCTION

16
Before the court are (1) Plaintiff Colin Bancroft’s motion for summary judgment
17
of liability on all claims against Defendant Minnesota Life Insurance Company
18
(“Minnesota Life”) (Plf. 2d MSJ (Dkt. # 29) at 2 (“The undisputed facts in this matter
19
lead to the conclusion that Minnesota Life is liable on all claims made by [Mr.]
20
Bancroft.”); and (2) Minnesota Life’s cross motion for summary judgment of no liability
21
on all of Mr. Bancroft’s claims (Def. MSJ (Dkt. # 35)). The court has considered the
22

ORDER - 1

1

motions, the submissions filed in support of and in opposition to both motions, the

2

relevant portions of the record, and the applicable law. In addition, on June 12, 2018, the

3

court heard counsel’s oral argument. Being fully advised, the court DENEIS Mr.

4

Bancroft’s motion for summary judgment and GRANTS Minnesota Life’s cross motion

5

as more fully described herein.

6
7
8
9

II.
A.

BACKGROUND

The Accelerated Benefits Policy Rider
Mr. Bancroft is an employee of King County. (10/25/17 Bancroft Decl. (Dkt. # 8)

¶ 2.) Minnesota Life issued a Group Term Life Insurance Policy (“the Policy”) to King

10

County. (Compl. (Dkt. # 1-1) ¶ 4; Ans. (Dkt. # 4) ¶ 4.) As a part of his benefits package,

11

Mr. Bancroft is covered under the Policy. (Compl. ¶ 6; Ans. ¶ 6.) The Policy’s Basic

12

Life Insurance provision pays one year’s salary upon acceptance of a claim. (Id.) Mr.

13

Bancroft also paid for Supplemental Life Insurance, which provides for an additional four

14

years of salary as a death benefit. (Id.)

15

Included in the Policy is an Accelerated Benefits Policy Rider (“the ABPR”),

16

which provides “for the accelerated payment of . . . the full . . . amount of an insured’s

17

death benefit . . . [i]f the insured has a terminal condition as defined in the [ABPR].”

18

(11/06/17 Marisseau Decl. (Dkt. # 16) ¶ 4, Ex. A at ML 0037.) The ABPR defines a

19

“terminal condition” as “a condition caused by sickness or accident which directly results

20

in a life expectancy of twenty-four months or less.” (Id.) The insured must request the

21

accelerated payment and give Minnesota Life “evidence that satisfies [Minnesota Life]

22

that the insured’s life expectancy, because of sickness or accident, is twenty-four months

ORDER - 2

1

or less.” (Id.) The evidence that the insured provides “must include certification by a

2

physician.” (Id.) The ABPR also states:

3

[Minnesota Life] reserve[s] the right to ask for independent medical
verification of a terminal condition. In the case of a difference of opinion,
the insured has the right to mediation or binding arbitration conducted by a
disinterested third party who has no ongoing relationship with either party.

4
5

(Id.) Finally, Minnesota Life “retain[s] the right to have the insured medically examined
6
at [its] own expense to verify the insured’s medical condition.” 1 (Id.)
7
B.

Mr. Bancroft’s Diagnosis with Stage IV Mantle Cell Lymphoma

8
Dr. Sherry Hu examined Mr. Bancroft on January 25, 2017. (Hu Decl. (Dkt. # 10)
9
¶ 5.) On January 25, 2017, Dr. Hu performed a bone marrow biopsy on Mr. Bancroft and
10
ordered a PET/CT scan. (Id.) On January 30, 2017, Mr. Bancroft underwent a PET/CT
11
scan. (Id.) On February 1, 2017, Mr. Bancroft returned to the clinic, and Dr. Hu
12
informed him that he had high risk stage IV mantle cell lymphoma and recommended
13
immediate treatment. (Id. ¶ 6; see also Plf. 1st MSJ (Dkt. # 7) at 4 (“On February 1,
14
2017, [Mr.] Bancroft returned . . . for the results of the biopsy and PET/CT. . . . At that
15
time, Dr. Hu diagnosed him with Stage IV Mantle Cell Lymphoma and recommended
16
immediate treatment.”); see also 10/25/17 Bancroft Decl. ¶ 6; Compl. ¶ 16.)
17
On February 6, 2017, Mr. Bancroft came under the care of Dr. Andrew Cowan.
18
(10/25/17 Bancroft Decl. ¶¶ 6-7.) Dr. Cowan confirmed Dr. Hu’s diagnosis. (10/25/17
19
Cowan Decl. (Dkt. # 9) ¶ 5.) Mr. Bancroft chose to see Dr. Cowan because he is an
20
//
21
1

22

Mr. Bancroft also provides a copy of the insurance policy and ABPR in his declaration.
(10/25/17 Bancroft Decl. ¶ 16, Ex. A.)

ORDER - 3

1

oncologist with expertise in mantle cell lymphoma. (10/25/17 Bancroft Decl. ¶ 6.) Dr.

2

Cowan prescribed a treatment regime, and Mr. Bancroft started chemotherapy on

3

February 17, 2017. (Id. ¶ 7.)

4

C.

5

Mr. Bancroft’s Claim to Minnesota Life
After his diagnosis, Mr. Bancroft completed a Notice of Claim for Accelerated

6

Benefit, a form provided by Minnesota Life. (Id. ¶ 11, Ex. C.) Mr. Bancroft submitted

7

this form to Minnesota Life on or about May 16, 2017. (Id.) He requested payment of

8

“100%” of the accelerated benefit at that time. (Id.) On May 26, 2017, Dr. Cowan

9

signed an Attending Physician’s Statement that was provided to Minnesota Life in

10
11

support of Mr. Bancroft’s claim. (See id.)
In the Attending Physician’s Statement, Dr. Cowan states that Mr. Bancroft was

12

“diagnosed w/stage IV mantel cell lymphoma high risk leukemia presentation w/elevated

13

LDH.” (Id. at 5.) He states that Mr. Bancroft was undergoing VR-CAP treatment, 2

14

indicated that Mr. Bancroft’s progress was “[i]mproved,” and noted that he expected

15

“[i]mprovement” as a “fundamental or marked change” in Mr. Bancroft’s condition. 3 (Id.

16

at 5-6.)

17
18

Dr. Cowan indicated on the form that Mr. Bancroft’s condition was terminal. (Id.
at 6.) He states that Mr. Bancroft’s Mantel Cell Lymphoma International prognostic

19
20
21

2

VR-CAP is a combined form of chemotherapy comprised of rituximab,
cyclophosphamide, doxorubicin, vincristine, and prednisone. (11/13/17 Shapland Decl. (Dkt
# 22) ¶ 13.)
3

22

On the form, the words—“marked change”—are underlined. (10/25/17 Bancroft Decl.
¶ 11, Ex. C at 6.)

ORDER - 4

1

index (“MIPI”) score is 7.2, 4 but Dr. Cowan does not base his prognosis for Mr. Bancroft

2

on this score. (See Cowan Dep. at 56:24-75:5.) Instead, based on a 2007 “publication in

3

Cancer (PMID 17477385),” Dr. Cowan opined that “the median survival for [Mr.

4

Bancroft] would be 24 months.” (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6 (italics

5

added).) The paper on which Dr. Cowan relied was published before the MIPI score was

6

developed in 2008. (11/13/17 Shapland Decl. ¶ 18; see Cowan Dep. at 56:24-57:4 (“Q: .

7

. . So Exhibit 13 is the stuff that you’re referencing as, well, the only medical literature

8

that you’re citing in support of your prognosis? A: Yeah, uh-huh. Q: And that’s a 2007

9

study? A: That’s correct.”); see id., Ex. 13.) Dr. Cowan later testified that his

10

“prognosis [also] included [his] overall evaluation of Mr. Bancroft at that time.”

11

(10/25/17 Cowan Decl. ¶ 9.) Dr. Cowan provided his contact information on the form, as

12

well as contact information for Dr. Hu. 5 (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.)

13

//

14
4

15
16
17

The MIPI score was first published as a prognostic index in 2008 and was validated in a
subsequent 2014 study. (See 11/6/17 Marisseau Decl. (Dkt # 16) ¶ 19, Ex. I; see also 11/13/17
Shapland Decl. ¶ 8; 5/11/18 Crowe Decl. (Dkt. # 40) ¶ 2 (attaching excerpts of Dr. Cowan’s
deposition at Dkt. # 40-1) (“Cowan Dep.”) at 13:3-12, 15:1-16:1.) Excerpts of Dr. Cowan’s
deposition can also be found in the May 7, 2018, declaration of Medora A Marisseau. (5/7/18
Marisseau Decl. (Dkt. # 36) ¶ 7, Ex. 3.) Irrespective of where excerpts of Dr. Cowan’s
deposition appear in the record, the court will simply reference the “Cowan Dep.”

18
5

19
20
21
22

The Attending Physician’s Statement included the following request: “*** Please
Attach Medical Records ***.” (Id.; see also id. at 1 (“PLEASE NOTE, WE ARE
REQUESTING THAT COPIES OF YOUR MEDICAL RECORDS BE SUBMITTED
WITH THIS FORM BY YOUR PHYSICIAN TO ASSIST IN EXPEDITING OUR
REVIEW.”).) Dr. Cowan did not attach any medical records. (See id.) However, Mr. Bancroft
executed an authorization for “any provider of health care, physician, medical practitioner, [or]
hospital . . . which has any medical . . . records or knowledge . . . to give all such information it
has to Minnesota Life . . . or its authorized representative.” (4/19/18 Crowe Decl. (Dkt. # 30)
¶ 3, Ex. 25 at 5.)

ORDER - 5

1

During his deposition, Dr. Cowan conceded that the 2007 Cancer publication is

2

the only medical literature he relied upon to support his 24-month life expectancy

3

estimate. (Cowan Dep. at 56:24-57:5.) He also acknowledged that the 2007 study “could

4

be” outdated and that at least one of the treatments that Mr. Bancroft received was not

5

available during the applicable time period of the 2007 study. (Id. at 58:3-25; 59:8-14.)

6

Dr. Cowan testified that the reason, in part, that he relied on the 2007 study rather than

7

Mr. Bancroft’s MIPI score was due to Mr. Bancroft’s high white blood cell count and

8

LDH. (Id. at 55:13-56:4.) Yet, Dr. Cowan admitted that these factors are accounted for

9

as part of the MIPI score. (Id. at 56:10-12.) Dr. Cowan also stated that chromosomal

10

changes, such as the deletion of 17p (long arm chromosome 17), was a factor that put Mr.

11

Bancroft at high risk. (Id. at 55:13-56:4; 10/25/17 Cowan Decl. ¶ 6.) Yet, Dr. Cowan

12

also admitted in his deposition that a 2011 publication in the Journal of Leukemia

13

“certainly . . . call[s] into question whether 17p deletions are important.” (Cowan Dep. at

14

65:11-67:4; see also Grinblatt Decl. ¶ 7.) Dr. Cowan acknowledged that his 24 month

15

estimate for Mr. Bancroft life expectancy was a deviation from the MIPI score prognosis,

16

but he stated that life expectancy estimation is “not a perfect science,” and he tries “to be

17

more realistic and maybe a bit paranoid and pessimistic rather than overly optimistic.”

18

(Cowan Dep. at 61:3-18.)

19

Mr. Bancroft does not recall Dr. Cowan advising him that his life expectancy was

20

24 months or less. (5/7/18 Marisseau Decl. ¶ 5, Ex. 1 (“Bancroft Dep.”) at 87:8-88:16.)

21

Rather, Mr. Bancroft repeatedly described Dr. Cowan as “very encouraging” or “very

22

positive.” (Id. at 44:3-5; 46:1-5.) Indeed, in contrast to the 24-month median survival

ORDER - 6

1

prognosis that Dr. Cowan provided to Minnesota Life, Dr. Cowan advised Mr. Bancroft

2

in February 2017 that “the median overall survival [for] mantle cell lymphoma is about

3

5-7 years . . . but with new intensive treatments . . . many patients are living much

4

longer.” (Cowan Dep. at 18:19-19:5.) Mr. Bancroft testified that he “[a]bsolutely”

5

expected Dr. Cowan to provide him with accurate information concerning overall median

6

survival so that he could make informed decisions about treatment options (Bancroft

7

Dep. at 45:16-21), and Dr. Cowan testified that his statement to Mr. Bancroft was

8

accurate at the time he gave it. (Cowan Dep. at 19:11-14).

9

D.

10

Minnesota Life’s Initial Review of Mr. Bancroft’s Claim
Upon receipt of Mr. Bancroft’s claim, Minnesota Life forwarded the claim to its

11

medical reviewer, Dr. Maryam Shapland, for an evaluation of Mr. Bancroft’s prognosis.

12

(See 11/13/17 Shapland Decl. ¶ 7.) Dr. Shapland limited her review to the notes of

13

Minnesota Life’s claims examiner, Ms. Sarah Taylor, and Dr. Cowan’s Attending

14

Physician’s Statement. (4/19/18 Crowe Decl. ¶ 3 (attaching excerpts of the March 28,

15

2018, deposition of Dr. Shapland) (“Shapland Dep.”) at 31:13-20.) She also reviewed

16

“Up to Date,” a resource that provides information and current scientific articles on

17

various medical conditions, including mantle cell lymphoma. (Id. at 52:9-55:6; 5/7/18

18

Shapland Decl. (Dkt. # 38) ¶ 2.) The Up to Date article that Dr. Shapland reviewed

19

further referred to an article in a publication known as Blood. (Shapland Dep. at 52:9-

20

55:6.) The Blood article consists of the first published information on the MIPI score.

21

(Id.; Cowan Dep. at 13:9-12.) Dr. Shapland did not read the Blood article, but relied

22

//

ORDER - 7

1

instead on the information Up to Date conveyed about that article. (Shapland Dep. at

2

52:9-55:6.)

3

The MIPI score is a “well-recognized evidence based prognostic index for patients

4

with mantle cell lymphoma.” (11/13/17 Shapland Decl. ¶ 8.) A physician can determine

5

an MIPI score for any individual diagnosed with mantle cell lymphoma based on four

6

independent factors: age, ECOG performance status, lactate dehydrogenase (“LDH”)

7

(which is a cell enzyme), and leukocyte count (which is also known as white blood cell

8

count). (Id. ¶ 9; Grinblatt Decl. (Dkt. # 37) ¶ 5; see also Cowan Dep. at 13:13-18.) A

9

biologic MIPI score includes those same four factors but also includes analysis of Ki-67

10

positive cells, a marker for proliferation or how fast a tumor is growing that has

11

independent prognostic value when considered with the MIPI score. (11/13/17 Shapland

12

Decl. ¶ 9; Grinblatt Decl. ¶ 6; Cowan Dep. at 16:2-19.) The MIPI, including the biologic

13

MIPI, takes into account all the characteristics of the disease at issue that have been

14

confirmed to have a statistically significant effect on prognosis. (Grinblatt Decl. ¶ 6;

15

Cowan Dep. at 16:2-19.)

16

An MIPI score from 6-12 is considered a high-risk MIPI score. (11/13/17

17

Shapland Decl. ¶ 10.) Mr. Bancroft’s attending physician, Dr. Cowan, scored Mr.

18

Bancroft at 7.2. (Id.; 10/25/17 Bancroft Decl. ¶ 11, Ex. C at 5.) The 2008 Blood article

19

indicated that patients with a high-risk MIPI score had a median overall survival of 29

20

months and patients with a high-risk biologic MIPI score had a median overall survival of

21

//

22

//

ORDER - 8

1

37 months. 6 (11/13/17 Shapland Decl. ¶ 11.) Thus, based on his score, the high-risk

2

biologic MIPI predicted a median overall survival of 37 months for individuals such as

3

Mr. Bancroft. (See id.; Grinblatt Decl. ¶ 6; see also 10/25/17 Cowan Decl. ¶ 13 (“The

4

letter provided by Minnesota Life also refers to a life expectancy of 37 months being the

5

‘median survival’ expected of Mr. Bancroft. I presume that this was taken from . . .

6

Blood 2008 – using the biologic MIPI, which is not as widely used as the MIPI score.”)

7

(italics added).) Dr. Shapland also considered Dr. Cowan’s statement on the Attending

8

Physician’s Statement that Mr. Bancroft was responding to treatment, his notation that

9

Mr. Bancroft’s condition was “[i]mproved,” and his expectation that Mr. Bancroft will

10

continue to experience “fundamental or marked” “[i]mprovement.” (See 10/25/17

11

Bancroft Decl. ¶ 11, Ex. C at 6.) Dr. Shapland did not ask for any additional medical

12

records or information from Dr. Cowan, although she recognized that she had the ability

13

to do so. (Shapland Dep. at 66:10-67:4.)

14

Based on her review of Dr. Cowan’s Attending Physician’s Statement and the

15

medical information in Up to Date, Dr. Shapland opined that she was “unable to

16

determine with greater than 90% certainty that [Mr. Bancroft’s] life expectancy is 24

17

months or less.” (4/19/18 Crowe Decl. ¶ 3, Ex. 22 (attaching claim journal entries from

18

Minnesota Life for Mr. Bancroft’s claim).) As Minnesota Life explained:

19

//

20
21
22

6

The use of the MIPI score to determine overall survival was confirmed in a later 2014
study. (11/13/17 Shapland Decl. ¶ 12.) In the 2014 study, a younger group with high-risk MIPI
scores had a median overall survival of 46 months. (Id.) The elderly group with a high-risk
MIPI score had a median overall survival of 31 months. (Id.) The median overall survival for
the entire group was 34 months. (Id.)

ORDER - 9

1

5

The 90% confidence in a life expectancy of 24 months or less is a standard
applied at Minnesota Life. It is based on the policy provision that provides
that Minnesota Life “must be given evidence that satisfies us that the
insured’s life expectancy, because of accident or sickness, is twenty four
months or less.”
*************
As noted, Dr. Shapland was orally advised of Minnesota Life’s policy that
she should apply a 90% level of confidence in determining the level of
satisfactory evidence to determine life expectancy, rather than 100%.

6

(4/19/18 Crowe Decl. ¶ 3, Ex. 32 at 7, 9.) Nevertheless, Dr. Shapland testified that

7

whether she applied a “more likely than not” or a “90% certainty” standard to the

8

evidence relating to Mr. Bancroft’s life expectancy, her opinion would be the same.

9

(5/7/18 Shapland Decl. ¶ 10.) She also testified that she believes both her opinion and

2
3
4

10

Dr. Cowan’s prognosis are reasonable. (Shapland Dep. at 71:14-17 (“I feel that my

11

opinion was reasonable, and [Dr. Cowan’s] opinion was reasonable. . . . There’s no exact

12

way to determine exact life expectancy.”).)

13

Dr. Cowan testified that he put Mr. Bancroft’s MIPI score into his medical notes

14

because “it conveys information about risk and prognosis.” (Cowan Dep. at 13:2.) He

15

agreed that the MIPI prognostic index was first validated in the 2008 Blood article and

16

then confirmed again in a later 2014 study. (Id. at 13:3-12; 15:1-16:1, Ex. 3.) Although

17

Dr. Cowan believed that his 24-month prognosis for Mr. Bancroft in the Attending

18

Physician’s Statement was reasonable, he agreed that either the 29-month non-biologic

19

//

20

//

21

//

22

//

ORDER - 10

1

MIPI or the 37-month biologic MIPI was a reasonable estimate of Mr. Bancroft’s life

2

expectancy at the time. 7

3

Minnesota Life retained an expert witness, Dr. David Grinblatt, M.D., who

4

specializes in blood cancers. 8 Dr. Grinblatt agrees with Dr. Shapland that the median

5

overall survival rate for Mr. Bancroft was 37 months at the time of his claim based on the

6

standard biologic MIPI. (Grinblatt Decl. ¶ 6.) Further, he opines:

7

The biologic MIPI, when available, is the standard prognostic metric for
mantle cell lymphoma. The MIPI, including the biologic MIPI, takes into
account all of the characteristics of this disease which have been validated to
have a statistically significant effect on prognosis. It is the fairest, most
objective measure for determining prognosis for mantle cell lymphoma. The
MIPI, including biologic MIPI, remains the best and only validated method
to assess survival in patients with Mantle Cell Lymphoma.

8
9
10
11

//

12
7

13
14
15
16
17
18
19
20
21

Q: Well, would you agree that a reasonable conclusion would also be that
prognosis of 29 months, consistent with the MIPI score, would be accurate for Mr.
Bancroft?
A: It could be –
Q: Okay.
A: -- for a patient.
Q: Well, for Mr. Bancroft.
A: For Mr. Bancroft, it could be.
*******
Q: Okay. So one reasonable interpretation was your –
A: Yes.
Q: -- 24 months?
A: Yes.
Q: And another reasonable interpretation was the MIPI prognosis, 29 –
A: Sure.
Q: -- or 37?
A: You could say that.
(Cowan Dep. at 61:19-62:2; 62:24-63:8.)
8

22

Mr. Bancroft did not challenge the admissibility of Dr. Grinblatt’s opinion testimony.
(See generally Plf. Reply (Dkt. # 39); Plf. Resp. (Dkt. # 46).)

ORDER - 11

1

(Id.) He also notes that “it was reasonable to determine that Mr. Bancroft had a median

2

life expectancy of greater than 24 months as of May 2017, based on his February

3

diagnosis.” (Id. ¶ 10.)

4

E.

5

Minnesota Life’s Initial Response to Mr. Bancroft’s Claim.
After receiving Dr. Shapland’s opinion, Minnesota Life’s claims examiner, Ms.

6

Taylor, sent a letter dated June 8, 2017, to Mr. Bancroft containing the following

7

statement:

8
9
10
11
12
13
14

With the information we received from your doctor, we are unable to
determine, at this time, if your life expectancy will be less than 24 months,
which the policy requires. Your doctor did indicate on the claim form that
your condition was terminal and provided a life expectancy of 24 months.
Per medical literature, median survival for your diagnosis is 37 months. You
were diagnosed in January 2017. You are currently undergoing treatment
and your physician states that your condition has improved and marked
change (improvement) is continued to be expected. We understand this a
difficult and sensitive issue. Please be assured this is not a permanent denial
of benefits. At this time, however, the medical information does not support
a life expectancy of 24 months or less, which the policy requires. If you have
new information that supports a life expectancy of 24 months or less, please
submit it for our review and we will gladly reassess your claim for the
Accelerated Benefit.

15
(4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) 9 Ms. Taylor
16
also invited Mr. Bancroft to ask questions and to call her on a toll-free direct dial number.
17
18
19
20
21
22

9

Minnesota Life’s June 8, 2017, letter states that Mr. Bancroft was “diagnosed in January
2017.” (4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) There is no
dispute that Mr. Bancroft’s last diagnostic test occurred on January 30, 2017. (Hu Decl. ¶ 5.)
However, Dr. Hu did not announce her diagnosis until February 1, 2017. (10/25/17 Bancroft
Decl. ¶¶ 5-6; Hu Decl. ¶ 6; Plf. 2d MSJ at 4 (“After having tests conducted in January, on
February 1, 2017, [Mr.] Bancroft was informed by Dr. . . . Hu that he had Stage IV Mantle Cell
Lymohoma.”).) Indeed, in his first motion for summary judgment, Mr. Bancroft states that he
was diagnosed on February 1, 2017. (Plf. 1st MSJ at 4 (“On February 1, 2017, [Mr.] Bancroft
returned . . . for the results of the biopsy and PET/CT. . . . At that time, Dr. Hu diagnosed him
with Stage IV Mantle Cell Lymphoma and recommended immediate treatment.”); see also

ORDER - 12

1

(Id.) Mr. Bancroft did not contact Minnesota Life; nor did he submit any additional

2

information related to his claim prior to filing suit. (See Bancroft Dep. at 95:1-23.)

3

In the letter, Minnesota Life did not refer to Dr. Shapland’s review of Mr.

4

Bancroft’s claim or her use of the “90% certainty” standard for life expectancy in

5

evaluating Mr. Bancroft’s medical information. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24;

6

10/25/17 Bancroft Decl. ¶ 16, Ex. D.) The claims examiner who handled Mr. Bancroft’s

7

claim did not seek an independent medical review prior to sending the letter. (4/18/18

8

Crowe Decl. ¶ 3 (attaching excerpts of the March 28, 2018 deposition of Sarah Taylor)

9

(“Taylor Dep.”) at 22:24-23:1 (“Q: Have you ever sought independent medical

10

verification of any claim you’ve processed? A: Nope.”).) Indeed, she testified that she

11

does not know what such a review entails. (Id. at 22:21-23 (Q: . . . You don’t know what

12

independent medical review entails? A: No.”).)

13

F.

14

Mr. Bancroft’s Suit
Although the ABPR provides that “[i]n the case of a difference of opinion, the

15

insured has the right to mediation or binding arbitration” (10/25/17 Bancroft Decl. ¶ 16,

16

Ex. A at 12), Mr. Bancroft demanded neither after receiving Minnesota Life’s June 8,

17

2017, letter. 10 Instead, Mr. Bancroft engaged counsel, and on June 22, 2017, he filed and

18

//

19
20
21
22

Compl. ¶ 16 (“On or around February 1, 2017, [Mr.] Bancroft returned to the Poly Clinic for the
results of the biopsy and PET/CT. At that time, Dr. Hu diagnosed him with stage IV mantle cell
lymphoma and recommended immediate treatment.”).)
10

During oral argument, Mr. Bancroft’s counsel conceded that Mr. Bancroft did not
request either mediation or binding arbitration following his receipt of Minnesota Life’s June 8,
2017, letter.

ORDER - 13

1

served a 20-day notification sheet under the Insurance Fair Conduct Act (“IFCA”), RCW

2

48.30.015. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. E; see also 4/19/18 Crowe Decl ¶ 2.)

3

Minnesota Life admits that it received Mr. Bancroft’s 20-day IFCA notice (Compl. ¶ 44;

4

Ans. ¶ 44) but did not respond within the 20-day notice period (4/19/18 Crowe Decl. ¶ 2).

5

Mr. Bancroft filed suit against Minnesota Life in King County Superior Court on

6

August 2, 2017. (See Compl.) He alleges claims for (1) breach of contract (id. ¶¶ 46-48),

7

(2) breach of the covenant of good faith and fair dealing (id. ¶¶ 49-51), (3) negligence (id.

8

¶¶ 52-54), (4) insurance bad faith (id. ¶¶ 55-58), (5) breach of Washington’s Consumer

9

Protection Act (“CPA”), RCW ch. 19.86 (id. ¶¶ 59-63), (6) breach of Washington’s IFCA

10

(id. ¶¶ 64-67), and (7) declaratory relief (id. ¶¶ 68-71). Minnesota Life removed the

11

action to this court on August 30, 2017. (Notice of Rem. (Dkt. # 1).)

12

On October 25, 2017, Mr. Bancroft filed an early motion for summary judgment.

13

(Plf. 1st MSJ (Dkt. # 7).) Along with his motion, Mr. Bancroft filed a declaration from

14

Dr. Cowan dated October 19, 2017. (See 10/25/17 Cowan Decl.) Pursuant to Federal

15

Rule of Civil Procedure 56(d), the court denied the motion without prejudice to refiling,

16

if appropriate, after Minnesota Life had an opportunity obtain discovery. (2/21/18 Order

17

(Dkt. # 26) at 12.)

18

G.

Dr. Shapland’s Second Review of Mr. Bancroft’s Claim

19

After receiving Dr. Cowan’s October 19, 2017, declaration, Dr. Shapland

20

reevaluated Mr. Bancroft’s life expectancy as of November 1, 2017. (5/7/18 Shapland

21

Decl. ¶¶ 8-9.) She reviewed additional medical literature, which she concluded supported

22

her original opinion. (Id. ¶ 8; 4/19/18 Crowe Decl. ¶ 3, Ex. 22 at 1.) She noted that in his

ORDER - 14

1

declaration, Dr. Cowan “acknowledged that the median survival using the biologic MIPI

2

with a high risk MIPI score was 37 months and that using the non-biologic MIPI with a

3

high risk MIPI score provided a median survival of 29 months ‘for individuals with

4

similar factors as Mr. Bancroft.’” (5/7/18 Shapland Decl. ¶ 8 (quoting 10/25/17 Cowan

5

Decl. ¶ 13).) Dr. Shapland interpreted Dr. Cowan’s statement to mean that he was

6

confirming that Mr. Bancroft shared similarities with individuals who had a median

7

survival of 29 months using the non-biologic MIPI. (See id.) Dr. Shapland also

8

interpreted Dr. Cowan’s declaration as suggesting that Mr. Bancroft had experienced a

9

negative reaction to treatment. (Id. ¶ 9.) Mr. Bancroft also testified in October 2017 that

10

he had experienced “severe reactions” to some of his treatments and that Dr. Cowan had

11

needed to adjust his treatments accordingly. (See 10/25/17 Bancroft Decl. ¶ 8.) Due to

12

the passage of nearly five additional months since her original opinion in early June

13

2017, her acceptance of Dr. Cowan’s October 2017 statement “that individuals with

14

similar factors as Mr. Bancroft” had a (non-biologic) MIPI prognosis of 29 months, her

15

inference that the “marked” improvement anticipated by Dr. Cowan had not occurred,

16

and the fact that Mr. Bancroft may have taken a turn for the worse or there may have

17

been negative developments in Mr. Bancroft’s treatment, Dr. Bancroft used the 29-month

18

median survival (non-biologic MIPI) and determined based on a 90% certainty standard

19

that as of November 1, 2017, Mr. Bancroft’s life expectancy was 24 months or less.

20

(5/7/18 Shapland Decl. ¶ 9; Shapland Dep. at 108:3-122:6.) Minnesota Life paid Mr.

21

Bancroft $384,000.00 the next day. (Plf. 2d MSJ at 12; Def. MSJ at 10.)

22

//

ORDER - 15

1

III.

2

ANALYSIS

On April 19, 2018, Mr. Bancroft filed a second motion for summary judgment on

3

liability for his claims of (1) breach of contract; (2) bad faith; (3) breach of Washington’s

4

IFCA; and (4) breach of Washington’s CPA. (See generally Plf. 2d MSJ.) On May 7,

5

2018, Minnesota Life filed its response to Mr. Bancroft’s motion and a cross motion for

6

summary judgment in its favor. (See generally Def MSJ.) The court considers both

7

motions after resolving an evidentiary issue.

8

A.

9

Admissibility of Don Kelley’s Expert Testimony
The court first addresses a preliminary issue concerning the admissibility of

10

certain evidence. In its reply memorandum, Minnesota Life objects to the admissibility

11

of Mr. Don Kelley’s opinions and testimony. (Def. Reply (Dkt. # 49) at 5-6.) Mr. Kelley

12

is Mr. Bancroft’s expert witness on insurance issues. (See Kelley Decl. (Dkt. # 48) ¶ 2,

13

Ex. J (attaching Mr. Kelley’s expert witness report).) In response to Minnesota Life’s

14

objection, Mr. Bancroft filed a surreply arguing that Minnesota Life’s request to exclude

15

Mr. Kelley’s testimony “was improperly presented in reply and otherwise in violation of

16

the local rules.” (Plf. Surreply (Dkt. # 51) at 1.) Mr. Bancroft maintains that he had an

17

inadequate opportunity to respond to Minnesota Life’s objection. (See id.)

18

Before considering the admissibility of Mr. Kelley’s testimony, the court first

19

addresses Mr. Bancroft’s procedural objection. Local Rule LCR 7(d)(4) states that

20

“[e]xcept upon a showing of good cause, any motion in limine shall be filed as one

21

motion.” Local Rules W.D. Wash. LCR 7(d)(4). Mr. Bancroft apparently objects that

22

Minnesota Life did not file its objection to Mr. Kelley’s testimony in a separate omnibus

ORDER - 16

1

motion containing all of its motions in limine as required by this local rule. (See Plf.

2

Surreply at 1.) However, Local Rule LCR 7 begins with the following proviso: “Unless

3

otherwise provided by rule or court order, motions shall be noted for consideration as

4

follows.” Id., LCR 7. Thus, the directive in Local Rule 7(d)(4) that all motions in limine

5

shall be filed as one motion, is cabined by the provisio—“[u]nless otherwise provided by

6

. . . court order.” See id. Here, the court expressly separated motions objecting to expert

7

witness testimony from all other motions in limine in its scheduling order. (See Sched.

8

Order (Dkt. # 20) at 1.) The court’s scheduling order requires parties to file all

9

dispositive motions and motions challenging expert witness testimony by July 11, 2018,

10

but all other motions in limine by August 28, 2018. (Id.) Thus, although it was not filed

11

as a separate motion, Minnesota Life’s June 1, 2018, objection to Mr. Kelley’s testimony

12

was timely and not improperly segregated from Minnesota Life’s other motions in limine.

13

Mr. Bancroft also objects that Minnesota Life raised its challenge to Mr. Kelley’s

14

testimony for the first time in its reply memorandum. (Plf. Surreply at 1.) Mr. Bancroft,

15

however, did not rely upon Mr. Kelley’s testimony until his third memorandum

16

addressing the parties’ cross motions. (See Plf. Resp. (Dkt. # 46) at 4, 11, 17 n.15, 24.)

17

Thus, Minnesota Life’s first opportunity to address the admissibility of Mr. Kelley’s

18

expert opinions was in its reply memorandum. (See Def. Reply at 5-6). 11 “A trial court

19
20
21
22

11

Mr. Bancroft filed his motion for summary judgment on April 19, 2018. (See Plf. 2d
MSJ.) Minnesota Life filed its response and cross motion on May 7, 2018. (See Def. MSJ.) Mr.
Bancroft filed a reply memorandum to his own motion for summary judgment on May 11, 2018.
(See Plf. Reply.) On May 29, 2018, Mr. Bancroft filed an additional response memorandum to
Minnesota Life’s cross motion. (See Plf. Resp.) On June 1, 2018, Minnesota Life filed a reply

ORDER - 17

1

can only consider admissible evidence in ruling on a motion for summary judgment.”

2

Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Thus, it was

3

substantively proper for Minnesota Life to raise its objections to the admissibility of Mr.

4

Kelley’s expert testimony in response to Mr. Bancroft’s reliance thereon.

5

In any event, Mr. Bancroft is not prejudiced by the manner in which Minnesota

6

Life raised its objection. Mr. Bancroft filed a surreply and therefore had the opportunity

7

to address Minnesota Life’s objection. (See Plf. Surreply.) Further, Mr. Bancroft

8

provided the entire transcript of Mr. Kelley’s deposition testimony to the court (see

9

6/4/18 Frost Decl. (Dkt. # 52) ¶ 2, Ex. A (attaching a transcript of Mr. Kelley’s

10

deposition); see also Plf. Surreply at 1 (“To any extent the Court considers defendant’s

11

request to exclude Mr. Kelley’s testimony, the Court should have full opportunity to

12

review Mr. Kelley’s full deposition testimony as the excerpts provided by [Minnesota

13

Life] are incomplete and/or misleading as to Mr. Kelley’s full testimony provided.”)),

14

and the court has reviewed it. Further, the court specifically notified the parties to be

15

“prepared to address the admissibility of the opinions and testimony” of Mr. Kelley at

16

oral argument. (See 7/10/18 Order (Dkt. # 60).) Mr. Bancroft’s counsel addressed the

17

issue orally and provided the court with a hand-out highlighting areas of Mr. Kelley’s

18

expert opinion report that Mr. Bancroft’s counsel concedes are not admissible. (See

19

Report (Dkt. # 63).) Accordingly, Mr. Bancroft has had “ample opportunity” to address

20

//

21
22

memorandum in support of its cross motion. (See Def. Reply.) Finally, on June 4, 2018, Mr.
Bancroft filed his surreply. (See Surreply.)

ORDER - 18

1

Minnesota Life’s objections (Plf. Surreply at 1), and he is not prejudiced by the court’s

2

consideration of the issue.

3

The court now turns to the substance of Minnesota Life’s objection. Minnesota

4

Life’s objections to Mr. Kelley’s testimony fall into two categories. First, Minnesota Life

5

argues that Mr. Kelley is not qualified to critique various medical opinions as he does.

6

(Def. Reply at 5-6.) Second, Minnesota Life objects that Mr. Kelley’s expert opinion

7

report is replete with legal conclusions that are not helpful to the trier of fact. (Id.)

8

Federal Rule of Evidence 702 requires that a prospective witness be “qualified as

9

an expert by knowledge, skill, experience, training, or education[.]” Fed. R. Evid. 702;

10

see also Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995). The

11

Ninth Circuit has defined this as the threshold issue in determining whether a witness

12

may come “before the jury cloaked with the mantle of an expert” under Rule 702, and has

13

cautioned that “care must be taken to assure that a proffered witness truly qualifies as an

14

expert, and that such testimony meets the requirements of Rule 702.” Jinro Am. Inc. v.

15

Secure Invs., Inc., 266 F.3d 993, 1004 (9th Cir.), opinion amended on denial of reh’g,

16

272 F.3d 1289 (9th Cir. 2001). In addition, the interpretation of an insurance policy is a

17

question of law for the court. McHugh v. United Serv. Auto. Ass’n, 164 F.3d 451, 454

18

(9th Cir. 1999). Thus, the Ninth Circuit has expressly stated that expert testimony from

19

an attorney “cannot be used to provide legal meaning or interpret . . . [insurance] policies

20

as written.” Id.

21
22

The lion’s share of Mr. Kelley’s expert opinion consists of his critique of Dr.
Shapland’s medical opinion and her review of the medical literature underpinning her

ORDER - 19

1

opinion and his analysis of Dr. Cowan’s prognosis for Mr. Bancroft and the medical

2

literature underpinning that prognosis. (See Kelley Decl. ¶ 2, Ex. J at 7-9.) But Mr.

3

Kelley is not a medical doctor and asserts no medical expertise. (Id. at 1.) Instead, he is

4

an attorney who specializes in insurance matters. (Id.) Indeed, Mr. Bancroft’s counsel

5

admitted during oral argument that Mr. Kelley has no medical qualifications. Mr. Kelley

6

is, therefore, unqualified to opine on the adequacy of either Dr. Shapland’s or Dr.

7

Cowan’s medical opinions or the adequacy of their review of the medical literature. See,

8

e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (rejecting the Social Security

9

Commissioner’s suggestion that despite the medical opinion, the medical records

10

supported the ALJ’s determination, and holding that an ALJ is “simply not qualified to

11

interpret raw medical data in functional terms and no medical opinion supported the

12

determination”); see also Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183,

13

1194-95 (10th Cir. 1992) (affirming the trial court’s determination that an attorney with

14

“some education and training in the field” was not qualified “as an expert in the securities

15

area”).

16

During oral argument, Mr. Bancroft’s counsel submitted a copy of Mr. Kelley’s

17

expert witness report with certain portions highlighted in gray. (See Report.) Mr.

18

Bancroft’s counsel conceded that the highlighted portions of Mr. Kelley’s expert report

19

are not admissible. (See id.) Mr. Kelley’s first opinion is that “Minnesota Life failed to

20

conduct a reasonable investigation of the relevant available information before denying

21

[Mr.] Bancroft’s claim.” (Id. at 7.) Mr. Bancroft concedes that the first paragraph of the

22

analysis supporting this opinion is inadmissible. (Id. at 7-8.) The court, however,

ORDER - 20

1

excludes the entire portion of the report underpinning this opinion. The entire analysis

2

behind this opinion is intertwined with Mr. Kelley’s improper evaluation of Dr. Cowan’s

3

and Dr. Shapland’s medical opinions. Indeed, Mr. Kelley even includes this remarkable

4

admission: “As a lay person, not particularly trained in medicine, I would think that a

5

person taking the cocktail of medications [Mr.] Bancroft was taking would be expected to

6

improve.” (Id. at 8.) In this statement, Mr. Kelley acknowledges his complete lack of

7

medical expertise. Because his opinion concerning the adequacy of Minnesota Life’s

8

investigation is entwined with his analysis of Dr. Shapland’s and Dr. Cowan’s medical

9

opinions, he is not qualified to offer the opinion at issue. Accordingly, the court excludes

10
11

Mr. Kelley’s first opinion.
Mr. Kelley’s second opinion is that “Minnesota Life failed to fairly and

12

objectively interpret the information it received before denying [Mr.] Bancroft’s claim.”

13

(Id. at 8.) Mr. Bancroft’s counsel concedes that the first paragraph of Mr. Kelley’s

14

analysis underlying this opinion, which contains Mr. Kelley’s evaluation of Dr.

15

Shapland’s and Dr. Cowan’s medical opinions, is inadmissible. (See id. at 8-9.) Mr.

16

Kelley’s entire opinion, however, concerning Minnesota Life’s interpretation of the

17

information at issue is entangled with his analysis of the doctors’ medical opinions and

18

cannot be divorced from it. (See id.) The court, therefore, excludes the entire opinion.

19

Mr. Kelley’s third opinion is that “Minnesota Life failed to administer [Mr.]

20

Bancroft’s claim in accordance with the express provisions of his Policy and in

21

accordance with the insurance industry custom and practice.” (Id. at 9.) Mr. Bancroft’s

22

counsel again concedes that the majority of this opinion is inadmissible. (See id. at 9-10.)

ORDER - 21

1

Indeed, the analysis underlying Mr. Kelley’s opinion consists extensively of how he

2

believes the Policy and ABPR should be interpreted. (See id.) As discussed above,

3

expert testimony from an attorney cannot be used to provide legal meaning or interpret

4

insurance policies; policy interpretation is an issue of law for the court. See McHugh,

5

164 F.3d at 454. The court concludes that the remainder of the analysis underlying Mr.

6

Kelley’s opinion is also inadmissible. Once again, Mr. Kelley’s analysis is based on the

7

adequacy of Dr. Shapland’s medical opinion, and as discussed above, he is unqualified to

8

perform this analysis.

9

Mr. Kelley’s fourth opinion is that “Minnesota Life misrepresented a critical fact

10

as the basis for denying [Mr.] Bancroft’s claim.” (Report at 11.) Mr. Bancroft’s attorney

11

believes that this opinion and its supporting analysis is admissible. (See id.) The court,

12

however, disagrees. Mr. Kelley’s opinion is based entirely on his assessment of Dr.

13

Shapland’s analysis of the medical literature underpinning her medical opinions in this

14

case. As repeatedly stated above, he is unqualified as a lawyer without medical training

15

to conduct this analysis.

16

Mr. Kelley states his final opinion as follows: “For all the above reasons, it is my

17

opinion that Minnesota Life failed to give [Mr.] Bancroft’s interests as much

18

consideration as they did their own.” (Id.) Because the court has excluded all of Mr.

19

Bancroft’s prior opinions either because he lacks the necessary medical expertise or

20

because he offers legal opinions or interpretations of the Policy or ABPR, there is no

21

basis or foundation remaining to undergird this last opinion. Accordingly, the court finds

22

that his last opinion is inadmissible as well. In sum, the court excludes the entirety of Mr.

ORDER - 22

1

Kelley’s opinions. Accordingly, the court will not consider Mr. Kelley’s expert opinions

2

or testimony when evaluating the cross motions at issue.

3

B.

Standard of Review for Summary Judgment of Cross Motions

4

Summary judgment is proper where, viewing the evidence and inferences

5

therefrom in favor of the nonmoving party, “the movant shows that there is no genuine

6

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

7

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

8

Material facts are those that may affect the outcome of the suit under governing law, and

9

an issue of material fact is genuine “if the evidence is such that a reasonable jury could

10

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “[W]hen

11

simultaneous cross-motions for summary judgment on the same claim are before the

12

court, the court must consider the appropriate evidentiary material identified and

13

submitted in support of both motions, and in opposition to both motions, before ruling on

14

each of them.” Tulalip Tribes of Wash. v. Wash., 783 F.3d 1151, 1156 (9th Cir. 2015)

15

(quoting Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132,

16

1134 (9th Cir. 2001)). The court “rule[s] on each party’s motion on an individual and

17

separate basis, determining, for each side, whether a judgment may be entered in

18

accordance with the Rule 56 standard.” Id. (internal quotation marks omitted) (quoting

19

10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

20

//

21

//

22

//

ORDER - 23

1

Procedure § 2720 (3d ed. 1998)).

2

C.

Breach of Contract

3

The party seeking to establish coverage under an insurance contract—here, Mr.

4

Bancroft—bears the burden of proving that coverage under the policy is triggered. See

5

Pleasant v. Regence BlueShield, 325 P.3d 237, 243 (Wash. Ct. App. 2014) (citing

6

Diamaco, Inc. v. Aetna Cas. & Sur. Co., 983 P.2d 707, 709 (Wash. Ct. App. 1999), as

7

amended on reconsideration (Oct. 12, 1999)). A breach of contract claim against an

8

insurance company “depend[s] on proof of four common elements: duty, breach,

9

causation, and damages.” Baldwin v. Silver, 269 P.3d 284, 289 (Wash. Ct. App. 2011)

10

(citing Nw. Indep. Forest Mfrs. v. Dep’t of Labor & Indus., 899 P.2d 6, 9 (Wash. Ct. App.

11

1995) (“A breach of contract is actionable only if the contract imposes a duty, the duty is

12

breached, and the breach proximately causes damage to the claimant.”)).

13

Mr. Bancroft argues that Minnesota Life breached the ABPR in two ways. First,

14

he argues that Minnesota Life breached the ABPR when it did not pay his claim in June

15

2017. Second, he argues that Minnesota Life breached the ABPR by failing to provide

16

him with either mediation or binding arbitration in June 2017. The court considers each

17

argument in turn.

18

1. Evidence that Satisfies Minnesota Life that the Insured’s Life is 24 Months or
Less

19
Mr. Bancroft seeks summary judgment that Minnesota Life breached the ABPR
20
because, despite providing “information sufficient to demonstrate that his life expectancy
21
[wa]s 24 months[,] . . . includ[ing] certification by a physician,” Minnesota Life still
22

ORDER - 24

1

denied his claim on June 8, 2017. (Plf. 2d MSJ at 13.) Mr. Bancroft argues that his

2

doctor’s “prognosis plainly falls within the policy terms and the [ABPR] benefit should

3

have been paid.” (Id.) Mr. Bancroft’s argument, however, ignores the plain language of

4

the ABPR. 12 Minnesota Life’s ABPR does not state that it will pay the benefit based on a

5

physician’s certification that the insured’s life expectancy is 24 months or less. Rather,

6

the ABPR states:

7
8

We must be given evidence that satisfies us that the insured’s life expectancy,
because of sickness or accident, is twenty-four months or less. That evidence
must include certification by a physician.

9

(11/06/17 Marisseau Decl. ¶ 4, Ex. A.) 13 Based on this language, Minnesota Life argues

10

that Mr. Bancroft failed to provide evidence that satisfied Minnesota Life. (Def. MSJ at

11

11-16; see also Def. Reply at 2 (“[Mr. Bancroft’s] breach of contract claim fails because

12

he did not furnish, in June 2017, ‘evidence that satisfies [Minnesota Life] that the

13

insured’s life expectancy . . . is twenty-four months or less.’”) (quoting 4/19/18 Crowe

14

//

15
16
17
18
19
20
21

12

Neither party asserts that the language of the ABPR is ambiguous. (See Def. MSJ at
11 (stating that Mr. Bancroft concedes the ABPR is unambiguous); Plf. 2d MSJ at 13 (“The
ABPR is clear.”); Plf. Resp. at 14 (“The ABPR is clear.”); see also Plf. Reply at 2, 5 (arguing
that, to the extent the court deems portions of the ABPR to be ambiguous, those portions should
be interpreted in Mr. Bancroft’s favor, but not arguing that the ABPR is ambiguous).) In
Washington, insurance policies are construed as contracts. Quadrant Corp. v. Am. States Ins.
Co., 110 P.3d 733, 737 (Wash. 2005). A court must consider an insurance policy as a whole and
give it a “fair, reasonable, and sensible construction as would be given to the contract by the
average person purchasing insurance.” Id. (internal quotation marks omitted) (quoting
Weyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115, 122 (Wash. 2000)). If the
language of an insurance policy is clear and unambiguous, the court must enforce the policy as
written; a court may not modify it or create ambiguity where none exists. Id. Here, the court
concludes that there is no ambiguity and thus enforces the policy as written.
13

22

The policy defines the terms “we” and “us” as Minnesota Life. (4/19/18 Crowe Decl.
¶ 3, Ex. 19 at ML 0031.)

ORDER - 25

1

Decl. ¶ 3, Ex. 19 at ML 0037).) Thus, Minnesota Life argues that not only is Mr.

2

Bancroft not entitled to summary judgment on his breach of contract claim, but also that

3

the court should enter summary judgment in Minnesota Life’s favor instead. (See Def.

4

Reply at 2 (“Plaintiff . . . fail[s] to raise a genuine dispute of material fact as to any of his

5

claims.”).)

6

The Washington Supreme Court has examined language similar to the policy

7

provision at issue here. In Conway v. Minnesota Life Insurance Co., the insured failed to

8

pay a premium on his life insurance policy, and the policy lapsed. 112 P. 1106, 1107

9

(Wash. 1911). The insured applied for reinstatement but was required under the policy to

10

“furnish[] . . . [the insurer] satisfactory evidence that he is in good health.” Id. The

11

company declined to reinstate the policy because it found the insured’s evidence

12

unsatisfactory. Id. The Washington Supreme Court held that the policy language

13

provided the insurance company with the discretion to decide whether the insured’s proof

14

was sufficient. Id. In other words, the Court determined that the policy required the

15

insured to provide “such satisfactory evidence of good heath meaning satisfactory to the

16

company, and giving [the company] the right of rejection if, in the exercise of the

17

discretion vested in it, such evidence was not satisfactory.” Id. Conway supports

18

Minnesota Life’s position that, under the ABPR’s language, Minnesota Life has the

19

discretion to determine if the evidence of Mr. Bancroft’s life expectancy was satisfactory

20

or not.

21
22

More recently, the Eleventh Circuit also considered similar policy language, and
its decision aligns with Conway. In Florida Tube Corp. v. MetLife Insurance Co.,

ORDER - 26

1

beneficiaries of a life insurance policy brought suit against the insurer, alleging that the

2

insurer should pay them under the policy because circumstantial evidence of the insured’s

3

death in a solo plane accident satisfied the policy’s requirements. 603 F. App’x 904, 905

4

(11th Cir. 2015). After the insurer rejected the beneficiaries’ claim and the decedent’s

5

death certificate as proof of death that met the requirements of the policy, the

6

beneficiaries submitted a copy of the National Transportation Safety Board’s (“NTSB”)

7

report, “denominating it as sufficient proof of death.” Id. at 906. The insurer rejected the

8

NTSB report as insufficient proof as well, and the beneficiaries filed suit. Id. The

9

Eleventh Circuit held that the policy’s “proof satisfactory to us” term was unambiguous

10

and had “only one reasonable interpretation.” Id. at 907. The court held that the plain

11

meaning of “proof satisfactory to us” means “proof satisfactory to MetLife,” and that

12

applying that meaning, the insurer was within its discretion to deny coverage when the

13

beneficiaries gave the insurer circumstantial proof of death that “it deemed

14

unsatisfactory.” Id.

15

Mr. Bancroft correctly notes that Washington law concerning the relationship

16

between insureds and their insurance companies has developed since Conway.

17

Specifically, Mr. Bancroft argues that in Washington “an insurer must deal fairly with an

18

insured, giving equal consideration in all matters to the insured’s interests.” Van Noy v.

19

State Farm Mut. Auto. Ins. Co., 16 P.3d 574, 579 (2001) (quoting Tank v. State Farm

20

Fire & Cas. Co., 715 P.2d 1133, 1136 (1986)). Mr. Bancroft argues that this principle

21

prohibits Minnesota Life from demanding evidence of life expectancy that “satisfies”

22

Minnesota Life in its discretion alone, but rather must consider its insured’s interests on

ORDER - 27

1

an equal footing when determining whether the insured’s evidence of life expectancy is

2

satisfactory. (See Plf. Reply at 5-6.)

3

The court, however, finds no case law to support the notion that an insurer’s duty

4

to deal fairly with an insured or to place an insured’s interests on equal footing with its

5

own requires a rewriting of unambiguous policy language. Nevertheless, the court

6

recognizes that when an insured has a contractual right that depends on the insured’s

7

furnishing of evidence or proof which is “satisfactory to the company” or “satisfies” the

8

company, the weight of authority applies an objective standard. See 29 John Alan

9

Appleman, Appleman on Insurance, § 179.03[D][4] (2d ed. 2006). In other words, “the

10

evidence need only be that which would be satisfactory to a reasonable insurer.” Id.

11

Without so ruling, but for the purpose of deciding the present cross motions, the court

12

assumes that, in light of its more recent articulation of an insurer’s duty to “deal fairly”

13

with its insured, see St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 196 P.3d 664, 669

14

(Wash. 2008), the Washington Supreme Court would apply this higher standard if it were

15

considering the policy language at issue in Conway today. Even assuming the application

16

of a standard higher than the one articulated in Conway, however, there is no genuine

17

dispute of material fact that Minnesota Life did not breach the contract by provisionally

18

denying Mr. Bancroft’s claim on June 8, 2017.

19

Minnesota Life provisionally denied Mr. Bancroft’s claim because Dr. Cowan

20

relied upon an obsolete study in opining that Mr. Bancroft had a life-expectancy of 24

21

months or less and ignored a more recent and scientifically sound measure—Mr.

22

Bancroft’s MIPI score. See infra §§ II.C, D. Further, even Dr. Cowan—Mr. Bancroft’s

ORDER - 28

1

treating oncologist—concedes that reasonable estimates of Mr. Bancroft’s life expectancy

2

could be calculated by using either the 29-month non-biologic MIPI or the 37-month

3

biologic MIPI. (Cowan Dep. at 61:19-62:2; 62:24-63:8.) Indeed, all of the medical

4

experts in this case—Mr. Bancroft’s treating physician, Minnesota Life’s reviewing

5

doctor, and Minnesota Life’s medical expert witness—agree on this point. 14 (See id.; see

6

also Grinblatt Decl. ¶¶ 6, 10; Shapland Dep. at 71:14-17.) Moreover, Mr. Bancroft

7

provides no expert medical testimony to the contrary. Thus, Minnesota Life had

8

objective reasons to deny an accelerated payment of Mr. Bancroft’s life insurance

9

benefits on June 8, 2017. The most recent medical literature did not support Dr. Cowan’s

10

prognosis of a life expectancy of 24 months or less, and Mr. Bancroft’s MIPI score

11

indicated that his life expectancy was longer than 24 months. Thus, even considering the

12

policy language at issue—that Mr. Bancroft must submit “evidence that satisfies”

13

Minnesota Life—under the standard of a reasonable insurer, there is no genuine dispute

14

//

15
14

16
17
18
19
20
21
22

Dr. Shapland also testifies that she believes that both her opinion—that Mr. Bancroft
had a life expectancy of greater of than 24 months at the time he initially submitted his claim—
and Dr. Cowan’s prognosis—that Mr. Bancroft had a life expectancy of 24 months or less—were
reasonable. (Shapland Dep. at 71:14-17.) This fact, however, does not support the notion that
Minnesota Life breached the contract by denying Mr. Bancroft’s claim due to the specific policy
language at issue here. Just because Dr. Shapland did not find Dr. Cowan’s opinion to be
unreasonable does not mean that Mr. Bancroft fulfilled the ABPR’s requirement of “giv[ing]
evidence that satisfies [Minnesota Life] that the insured’s life expectancy, because of sickness or
accident, is twenty-four months or less.” (See 11/06/17 Marisseau Decl. ¶ 4, Ex. A.) This is
particularly so because Minnesota Life explained to Mr. Bancroft that Dr. Cowan’s opinion—
although perhaps not unreasonable—was not supported by the medical literature. (See 4/19/18
Crowe Decl. ¶ 3, Ex. 24 (attaching the June 8, 2017, letter from Minnesota Life to Mr. Bancroft,
stating: “Your doctor did indicate on the claim form that your condition was terminal and
provided a life expectancy of 24 months. Per medical literature, median survival for your
diagnosis is 37 months.”).)

ORDER - 29

1

of material fact that Minnesota Life did not breach the ABPR by provisionally denying

2

Mr. Bancroft’s claim on June 8, 2017.

3

Mr. Bancroft nevertheless asserts that Dr. Shapland’s adoption of the 29-month

4

non-biologic MIPI for calculating Mr. Bancroft’s life expectancy when she re-evaluated

5

his claim in November 2017, is evidence that Minnesota Life breached the ABPR when it

6

denied his claim on June 8, 2017. (Plf. Reply at 3 (citing Shapland Dep. at

7

109:18-110:13).) Mr. Bancroft argues that if Minnesota Life had applied the non-

8

biologic MIPI in June, when it first assessed Mr. Bancroft’s claim, it would have

9

concluded that Mr. Bancroft’s life expectancy was 24 months or less. (Id.) However,

10

Mr. Bancroft’s argument is based on faulty arithmetic. Mr. Bancroft admits that he was

11

diagnosed on February 1, 2017. 15 Thus, using the 29-month non-biologic MIPI score, at

12

the time Dr. Cowan signed the Attending Physician’s Statement on May 26, 2017, or at

13

the time Minnesota Life denied Mr. Bancroft’s claim on June 8, 2017, Mr. Bancroft

14

would not have had a life expectancy of 24 months or less. As of May 26, 2017, Mr.

15

//

16

//

17
18
19
20
21
22

15

Mr. Bancroft admitted in his complaint that Dr. Hu diagnosed him when he returned to
the clinic for his biopsy and PET/CT results. (See Compl. ¶ 16 (“On or around February 1, 2017,
[Mr.] Bancroft returned to the Poly Clinic for the results of the biopsy and PET/CT. At that
time, Dr. Hu diagnosed him with stage IV mantle cell lymphoma and recommended immediate
treatment.”) Factual assertions in pleadings, unless amended, are considered judicial admissions
binding on the party who made them. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226
(9th Cir. 1988). “Such admissions, which ‘have the effect of withdrawing a fact from issue and
dispensing wholly with the need for proof of the fact,’ are binding on both the parties and the
court.” United States v. Davis, 332 F.3d 1163, 1168 (9th Cir. 2003) (quoting Lacelaw, 861 F.2d
at 226). In addition, Mr. Bancroft testified that he “returned to the Poly Clinic for the results of
the biopsy and PET/CT” on February 1, 2017. (10/25/17 Bancroft Decl. ¶ 5.) Thus, there is no
genuine dispute that Mr. Bancroft was diagnosed on February 1, 2017.

ORDER - 30

1

Bancroft would have had a life expectancy slightly greater than 25 months; on June 8,

2

2017, his life expectancy would have been slightly less than 25 months. 16 But in either

3

event, it would have been more than twenty-four months. (See 11/06/17 Marisseau Decl.

4

¶ 4, Ex. A.) Thus, Dr. Shapland’s adoption of the 29-month non-biologic MIPI score in

5

November 2017 does not raise a genuine dispute of material fact concerning Mr.

6

Bancroft’s breach of contract claim preventing the entry of summary judgment in

7

Minnesota Life’s favor.

8

Mr. Bancroft, however, also takes umbrage with Minnesota Life’s application of a

9

“90% confidence” or “90% certainty” factor in assessing its insureds’ life expectancy and

10

implies that Minnesota Life’s use of this factor violates its duty to give “equal

11

consideration in all matters” to Mr. Bancroft’s interests. (See Plf. 2d MSJ at 14; Plf.

12

Reply at 3; Plf. Resp. at 17-18); see Van Noy, 16 P.3d at 579. Instead, Mr. Bancroft

13

asserts that Minnesota Life and Dr. Shapland should have applied a “more likely than not

14

standard.” (See Plf. 2d MSJ at 14; Plf. Reply at 5-8; Plf. Resp. at 15-18.) Mr. Bancroft,

15

however, fails to raise a genuine dispute of material fact preventing the entry of summary

16

judgment in Minnesota Life’s favor because Dr. Shapland testified that—irrespective of

17

whether she applied the “90% certainty” standard or a “more likely than not” standard,

18

her opinion concerning Mr. Bancroft’s life expectancy would be the same. (5/7/18

19

Shapland Decl. ¶ 10 (“In looking at whether the evidence presented in the May 26 claim

20
16

21
22

Even if the court assumed that Dr. Hu diagnosed Mr. Bancroft on January 30, 2017—
the date of his last medical test in January—the court’s analysis remains unchanged because on
June 6, 2017, Mr. Bancroft would still have more than “twenty-four months or less” in life
expectancy. See supra n.9 & n.15.

ORDER - 31

1

showed that Mr. Bancroft’s life expectancy was 24 months or less, my opinion is the

2

same regardless of whether . . . I apply a ‘more likely than not’ or a 90% certainty

3

standard.”).) Mr. Bancroft has not provided any medical testimony to counter Dr.

4

Shapland’s testimony in this regard. (See generally Dkt.) The court does not hold that

5

Minnesota Life was required to apply a “more likely than not” standard. But, even if Mr.

6

Bancroft is correct, the application of a “more likely than not” standard would have made

7

no difference here. Thus, Mr. Bancroft’s objection to the “90% certainty” factor does not

8

raise a genuine dispute of material fact prohibiting the court’s entry of summary

9

judgment in Minnesota Life’s favor on his breach of contract claim concerning this

10

clause of the ABPR.

11

In any event, as discussed above, the policy language plainly stated that Mr.

12

Bancroft had to submit “evidence that satisfies [Minnesota Life]” of his life expectancy.

13

(11/06/17 Marisseau Decl. ¶ 4, Ex. A at ML 0037.) Thus, Minnesota Life’s application

14

of a “90% confidence” or a “90% certainty” factor was not a violation of the terms of the

15

contract—particularly where Mr. Bancroft’s own oncologist agreed that use of Mr.

16

Bancroft’s MIPI score for estimating his life expectancy, as Dr. Shapland did, was

17

reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.)

18

In sum, the court grants Minnesota Life’s motion for summary judgment on Mr.

19

Bancroft’s claim for breach of contract concerning the ABPR’s clause requiring evidence

20

satisfying Minnesota Life that Mr. Bancroft’s life expectancy is 24 months or less. The

21

court denies Mr. Bancroft’s motion for summary judgment with respect to the same

22

clause.

ORDER - 32

1

2. Minnesota Life’s Right to Obtain an Independent Medical Examination and
Mr. Bancroft’s Right to Alternative Dispute Resolution

2
Mr. Bancroft also argues that Minnesota Life breached the ABPR by “refus[ing] to
3
conduct an ‘independent medical verification’ or to allow for any sort of alternative
4
dispute resolution prior to denying [Mr.] Bancroft’s claim.” (Plf. 2d MSJ at 14; see also
5
Plf. Resp. at 18 (“Minnesota Life denied [Mr.] Bancroft’s claim prior to allowing him his
6
right to present his arguments using alternative dispute resolution provided under the
7
policy and as required by Washington law.”).) Minnesota Life opposes Mr. Bancroft’s
8
motion and also argues that it is entitled to summary judgment on Mr. Bancroft’s claim
9
concerning this ABPR clause. (Def. MSJ at 15-16.)
10
The court begins with the language of the ABPR, which states in relevant part:
11
Do we retain the right to obtain independent medical verification?
12
13

Yes. We retain the right to have the insured medically examined at our own
expense to verify the insured’s medical condition.

14

(10/25/17 Bancroft Decl. ¶ 16, Ex. A at 12 (bolding in original).) The ABPR also states:

15

We reserve the right to ask for independent medical verification of a terminal
condition. In the case of a difference of opinion, the insured has the right to
mediation or binding arbitration conducted by a disinterested third party who
has no ongoing relationship with either party.

16
17

(Id.) Under the plain language of the policy, Minnesota Life had no obligation to conduct
18
an independent medical verification or examination of Mr. Bancroft to verify his
19
condition. (See id.) The ABPR plainly states that Minnesota Life “retain[s]” or
20
“reserve[s]” the right to ask for such a verification but that it was not required to do so.
21
(Id.) Because the policy language is clear and unambiguous, the court enforces it as
22

ORDER - 33

1

written. See Quadrant Corp., 110 P.3d at 737 (“Most importantly, if the policy language

2

is clear and unambiguous, we must enforce it as written; we may not modify it or create

3

ambiguity where none exists.”). Thus, to the extent that Mr. Bancroft asserts that he is

4

entitled to summary judgment because Minnesota Life violated the ABPR by “refus[ing]

5

to conduct an ‘independent medical verification’” (Plf. 2d MSJ at 18), the court denies

6

Mr. Bancroft’s motion and grants summary judgment to Minnesota Life on that issue.

7

Mr. Bancroft, however, also argues that Minnesota Life breached the ABPR by

8

failing to allow him to engage in mediation or arbitration over the dispute between Dr.

9

Cowan and Dr. Shapland concerning the length of his life expectancy. (Plf. 2d MSJ at

10

14-15.) Minnesota Life argues that Mr. Bancroft’s right to mediation or arbitration arises

11

only in the event that Minnesota Life seeks an independent medical verification and that

12

doctor’s opinion is in conflict with the insured’s doctor’s opinion. (Def. MSJ at 15.)

13

Because it did not seek independent medical verification of Mr. Bancroft’s condition,

14

Minnesota Life argues that it had no obligation to engage in alternative dispute resolution

15

with Mr. Bancroft. (See id.)

16

The court agrees with Mr. Bancroft that, under the plain language of the ABPR,

17

Mr. Bancroft’s right to alternative dispute resolution was not contingent upon Minnesota

18

Life’s invocation of its right for an independent medical examination of Mr. Bancroft. In

19

this case, Dr. Cowan and Dr. Shapland had a “difference of opinion,” and this difference

20

alone triggered Mr. Bancroft’s “right to mediation or binding arbitration conducted by a

21

disinterested third party” under the ABPR. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. A at

22

12.) The problem with Mr. Bancroft’s claim for breach of this provision, however, is that

ORDER - 34

1

he never invoked his right or informed Minnesota Life that he would like to mediate or

2

arbitrate. Indeed, his counsel admitted during oral argument that Mr. Bancroft never

3

asked for mediation or any other kind of alternative dispute resolution. Instead, upon

4

receiving Minnesota Life’s June 8, 2017, letter, Mr. Bancroft hired counsel, sent a 20-day

5

IFCA notice dated June 22, 2017, to Minnesota Life (see 10/25/17 Frost Decl. (Dkt. # 22)

6

¶ 2, Ex. E), and filed suit on August 2, 2017 (see Compl.).

7

The court found no case law interpreting a similar alternative dispute resolution

8

clause. Nevertheless, in Washington, “‘an insurer cannot be expected to anticipate when

9

or if an insured will make a claim for coverage; the insured must affirmatively inform the

10

insurer that its participation is desired.’” Mut. of Enumclaw Ins. Co. v. USF Ins. Co., 191

11

P.3d 866, 873 (Wash. 2008) (quoting Unigard Ins. Co. v. Leven, 983 P.2d 1155, 1160

12

(Wash. Ct. App. 1999), as amended (Apr. 24, 2000)). The court, therefore, concludes

13

that Mr. Bancroft was required to inform Minnesota Life that he wished to invoke his

14

right to alternative dispute resolution under the ABPR. He did not do so. Therefore,

15

Minnesota Life did not breach this provision of the ABPR by not engaging in either

16

mediation or binding arbitration to resolve the dispute. Accordingly, the court grants

17

Minnesota Life’s motion for summary judgment on this issue and denies Mr. Bancroft’s

18

motion.

19

In sum, the court grants Minnesota Life’s motion for summary judgment that it did

20

not breach the ABPR by failing to conduct an independent medical verification or

21

examination of Mr. Bancroft. The court further grants Minnesota Life’s motion for

22

summary judgment on Mr. Bancroft’s claim for breach of the alternative dispute

ORDER - 35

1

resolution provision of the ABPR. The court denies Mr. Bancroft’s motion on these two

2

issues. Accordingly, there is no portion of Mr. Bancroft’s breach of contract claim that

3

remains for trial.

4

D.

5

IFCA
Under IFCA, “an insured ‘who is unreasonably denied a claim for coverage or

6

payment of benefits by an insurer’ may sue to recover actual damages and costs.”

7

Kabrich v. Allstate Prop. & Cas. Ins. Co., 693 F. App’x 524, 526 (9th Cir. 2017) (citing

8

RCW 48.30.015(1) & Perez-Crisantos v. State Farm Fire & Cas. Co., 389 P.3d 476, 479

9

(Wash. 2017)). In addition, after finding that an insurer has “acted unreasonably in

10

denying a claim for coverage or payment of benefits” or violated one of the Washington

11

Administrative Code (“WAC”) sections listed in RCW 48.30.015(5), a court may

12

increase the total damages award to an amount not to exceed three times the actual

13

damages and award reasonable attorney’s fees and actual and statutory litigation costs.

14

RCW 48.30.015(2), (3). However, IFCA does not create an independent cause of action

15

for regulatory violations in the absence of any unreasonable denial of coverage or

16

benefits. Perez-Crisantos, 389 P.3d at 483.

17

The court has granted summary judgment in favor of Minnesota Life on all of Mr.

18

Bancroft’s breach of contract claims. See supra § III.C. Because there is no IFCA cause

19

of action in the absence of an unreasonable denial of coverage or payment of benefits,

20

Mr. Bancroft’s IFCA claim cannot survive. See Perez-Crisantos, 389 P.3d at 483. The

21

court, therefore, grants summary judgment to Minnesota Life on all aspects of Mr.

22

//

ORDER - 36

1

Bancroft’s IFCA claim and denies Mr. Bancroft’s motion for summary judgment on the

2

same claim.

3

E.

4

Bad Faith
Claims for insurer bad faith “are analyzed applying the same principles as any

5

other tort: duty, breach of that duty, and damages proximately caused by any breach of

6

duty. In order to establish bad faith, an insured is required to show the breach was

7

unreasonable, frivolous, or unfounded.” St. Paul Fire & Marine Ins. Co. v. Onvia, Inc.,

8

196 P.3d 664, 668 (Wash. 2008) (citing Mutual of Enumclaw Ins. Co. v. Dan Paulson

9

Constr., Inc., 169 P.3d 1, 8 (Wash. 2007)).

10

The fact that the court has granted Minnesota Life’s motion for summary

11

judgment on Mr. Bancroft’s breach of contract claim does not necessarily eliminate his

12

claim for bad faith with respect to Minnesota Life’s handling of Mr. Bancroft’s claim

13

under the ABPR. An insured can prove a claim for bad faith investigation of the

14

insured’s claim—as well as a violation of the CPA—regardless of whether the insurer

15

was ultimately correct in determining that coverage did not exist. See Coventry Assocs.

16

v. Am. States Ins. Co., 961 P.2d 933, 937 (Wash. 1998) (“We hold an insured may

17

maintain an action against its insurer for bad faith investigation of the insured’s claim and

18

violation of the CPA regardless of whether the insurer was ultimately correct in

19

determining coverage did not exist.”).

20

Mr. Bancroft argues that Minnesota Life committed the tort of bad faith because it

21

“failed to conduct a reasonable investigation into the facts of [his] claims.” (Plf. 2d MSJ

22

at 21.) Mr. Bancroft’s bad faith claim focuses on the alleged inadequacy of Dr.

ORDER - 37

1

Shapland’s evaluation of the medical evidence and literature and the development of her

2

opinion in June 2017, that Mr. Bancroft’s life expectancy was greater than 24 months.

3

(See id. at 21-22; Kelley Decl. ¶ 2, Ex. J at 7-9.) As described above, Mr. Kelley is not a

4

doctor and has no medical expertise. (Kelley Decl. at 1.) Accordingly, the court

5

excluded this portion of Mr. Kelley’s opinion or testimony as inadmissible under Federal

6

Rule of Evidence 702. See supra § III.A.

7

Moreover, Dr. Cowan testified that Mr. Bancroft’s MIPI score was a reasonable

8

basis for estimating his life expectancy and that a prognosis of either 29 or 37 months

9

based on this score was reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.)

10

Indeed, as the court has already indicated, there is no admissible medical testimony in the

11

record that Dr. Shapland’s use of Mr. Bancroft’s MIPI score to determine his life

12

expectancy was unreasonable. (See id.; see also Grinblatt Decl. ¶¶ 6, 10; Shapland Dep.

13

at 71:14-17.) As such, the court concludes that no reasonable juror could conclude that

14

Dr. Shapland’s opinion represents a bad faith investigation of Mr. Bancroft’s claim or

15

that Minnesota Life’s reliance upon her opinion was “unreasonable, frivolous, or

16

unfounded.” See St. Paul Fire & Marine Ins. Co., 196 P.3d at 668. Accordingly, the

17

court grants Minnesota Life’s motion for summary judgment on this aspect of Mr.

18

Bancroft’s bad faith claim and likewise denies Mr. Bancroft’s motion on the same issue.

19

The only other aspect of Mr. Bancroft’s bad faith claim is his assertion that

20

Minnesota Life failed to provide either mediation or binding arbitration to Mr. Bancroft

21

in light of the dispute between Dr. Cowan and Dr. Shapland concerning Mr. Bancroft’s

22

life expectancy. (See Plf. 2d MSJ at 22 (“[I]t was bad faith for Minnesota Life to take

ORDER - 38

1

away Bancroft’s rights under the [alternative dispute resolution] [p]rovision.”); Kelley

2

Decl. ¶ 2, Ex. J at 9-10.) As discussed above, however, Minnesota Life did not “take

3

away” Mr. Bancroft’s alternative dispute resolution rights. (See id.); see supra § III.C.

4

Rather, Mr. Bancroft failed to invoke those rights. See supra § III.C. Minnesota Life did

5

not act in bad faith by failing to provide a type of coverage under the ABPR that Mr.

6

Bancroft never claimed. Accordingly, the court grants Minnesota Life’s motion for

7

summary judgment on this aspect of Mr. Bancroft’s bad faith claim and denies Mr.

8

Bancroft’s motion. No portion of Mr. Bancroft’s bad faith claim remains for trial.

9

F.

CPA

10

Finally, Mr. Bancroft asserts that he is entitled to summary judgment on his CPA

11

claim. (Plf. 2d MSJ at 15-20.) The CPA prohibits “[u]nfair methods of competition and

12

unfair or deceptive acts or practices in the conduct of any trade or commerce.” RCW

13

19.86.020. Minnesota Life opposes Mr. Bancroft’s motion and seeks summary judgment

14

in its favor. (Def. MSJ at 16-18.)

15

To establish a claim under the CPA, Mr. Bancroft must prove (1) an unfair or

16

deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact;

17

(4) injury to his business or property; and (5) causation. See Ledcor Indus. (USA), Inc. v.

18

Mut. of Enumclaw Ins. Co., 206 P.3d 1255, 1262 (Wash. Ct. App. 2009). Where a claim

19

under the CPA is predicated on the denial of an insurance claim, the insured has a heavy

20

burden to prove that the insurer’s conduct was “unreasonable, frivolous, or unfounded.”

21

Overton v. Consol. Ins. Co., 38 P.3d 322, 329 (Wash. 2002).

22

//

ORDER - 39

1

The court has already determined that Minnesota Life did not breach the ABPR

2

when it denied payment of benefits in June 2017, based on Dr. Shapland’s opinion that

3

Mr. Bancroft’s life expectancy was greater than 24 months at that time. See supra

4

§ III.C.1. Indeed, Mr. Bancroft’s doctor, Dr. Cowan, conceded in his deposition that

5

basing a life expectancy prognosis on Mr. Bancroft’s MIPI score, as Dr. Shapland did,

6

was reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.) The court has also

7

determined that Minnesota Life did not breach the alternative dispute resolution clause of

8

the ABPR because Mr. Bancroft never invoked this provision and thus Minnesota Life

9

never had any obligation to perform under this clause. See supra § III.C.2. Thus, the

10

court denies Mr. Bancroft’s motion and enters summary judgment in Minnesota Life’s

11

favor with respect to any CPA claim arising out Minnesota Life’s determination to deny

12

the payment of accelerated life insurance benefits to Mr. Bancroft in June 2017, or any

13

alleged breach of the ABPR’s alternative dispute resolution clause.

14

Nevertheless, Mr. Bancroft also asserts that Minnesota Life violated various WAC

15

regulations during its handling of his claim, and Mr. Bancroft argues that he is entitled to

16

summary judgment on his CPA claim arising out of these WAC violations. (Plf. 2d MSJ

17

at 16-20.) CPA claims “alleging unfair insurance claims practices meet the public

18

interest element because RCW 48.01.030 declares that the ‘business of insurance is one

19

affected by the public interest.’” Anderson v. State Farm Mut. Ins. Co., 2 P.3d 1029,

20

1033 (Wash. Ct. App. 2000). Further, a single violation of any WAC provision

21

promulgated under RCW 48.30.010 is “deemed to constitute unfair claims settlement

22

practices.” Id. at 1034 (citing WAC 284-30-300 through WAC 284-30-410 and Indus.

ORDER - 40

1

Indem. Co. of the Nw. v. Kallevig, 792 P.2d 520, 530 (Wash. 1990)). In addition, a single

2

violation of WAC 284-23-600 through WAC 284-23-730, known as Washington’s

3

regulations of accelerated life insurance benefits, “will be deemed to constitute an unfair

4

claims settlement practice.” WAC 284-23-610(1). Minnesota Life opposes Mr.

5

Bancroft’s motion and also seeks summary judgment in its favor regarding any CPA

6

claim based on a violation of a WAC regulation. (Def. SMJ at 16-18.) The court

7

considers each regulation in turn.

8

1. WAC 284-23-680

9

WAC 284-23-680 provides in pertinent part that “[a]n insurer may not apply

10

conditions on the payment of the accelerated benefits except those specified in the

11

insured's policy or rider.” WAC 284-23-680. Mr. Bancroft argues that Minnesota Life

12

violated this provision by utilizing a “90% certainty” standard when it determined that

13

Mr. Bancroft’s life expectancy is 24 months or less because this standard is not stated in

14

the ABPR. (See Plf. 2d MSJ at 17; see also 4/19/18 Crowe Decl. ¶ 3, Ex. 22 (attaching

15

claim journal entries from Minnesota Life for Mr. Bancroft’s claim).) Instead, Mr.

16

Bancroft asserts that she should have applied a “more likely than not” standard. (See Plf.

17

2d MSJ at 14.)

18

Even assuming that Minnesota Life’s application of a “90% certainty” standard

19

violated WAC 284-23-680, Mr. Bancroft’s CPA claim based on this WAC provision

20

nevertheless fails. As noted in the court’s analysis of Mr. Bancroft’s breach of contract

21

claim, Dr. Shapland testified that her June 2017 opinion regarding Mr. Bancroft’s life

22

expectancy would have remained the same irrespective of whether she applied the “90%

ORDER - 41

1

certainty” standard or a “more likely than not” standard. See supra § III.C.1; (see also

2

5/7/18 Shapland Decl. ¶ 10.) There is no medical testimony to the contrary in the record.

3

Thus, Mr. Bancroft cannot prove the final element of his CPA claim based on this WAC

4

provision—that Minnesota Life’s violation of WAC 284-23-680 caused him any damage.

5

See Ledcor Indus. (USA), Inc., 206 P.3d at 1262.

6

Further, as discussed above, the language of the ABPR required Mr. Bancroft to

7

provide “evidence that satisfies [Minnesota Life].” (11/06/17 Marisseau Decl. ¶ 4, Ex. A

8

at ML 0037.) Even assuming that Minnesota Life applied a “90% certainty” standard in

9

determining an insured’s life expectancy, this standard was not in violation of WAC 284-

10

23-680 because this condition was encompassed by the express language of the ABPR.

11

Accordingly, the court denies Mr. Bancroft’s motion for summary judgment and enters

12

summary judgment on this claim in Minnesota Life’s favor.

13

2. WAC 284-23-730

14

WAC 284-23-730 states in pertinent part:

15

In the event the insured’s health care provider and a health care provider
appointed by the insurer disagree on whether a qualifying event has occurred,
the opinion of the health care provider appointed by the insurer is not binding
on the claimant. The parties shall attempt to resolve the matter promptly and
amicably. The policy or rider providing the accelerated benefit shall provide
that in case the disagreement is not so resolved, the claimant has the right to
mediation or binding arbitration conducted by a disinterested third party who
has no ongoing relationship with either party.

16
17
18
19

WAC 284-23-730. Similar to the court’s analysis of Mr. Bancroft’s breach of contract
20
claim concerning the ABPR’s alternative dispute resolution clause, the court also
21
concludes that, under this WAC provision, the difference of opinion between Dr. Cowan
22

ORDER - 42

1

and Dr. Shapland concerning Mr. Bancroft’s life expectancy required the parties to

2

“attempt to resolve the matter promptly and amicably,” and—failing any amicable

3

resolution—gave Mr. Bancroft “the right to mediation or binding arbitration.” See id.;

4

see supra § III.C.2.

5

Minnesota Life argues that its June 8, 2017, letter to Mr. Bancroft “undisputedly

6

offered to amicably engage with [Mr. Bancroft] regarding its June 8 claim decision.”

7

(Def. MSJ at 17.) Minnesota Life also argues that Mr. Bancroft’s decision to

8

immediately initiate litigation reveals his own violation of the WAC regulation. (Id.) As

9

detailed above, Minnesota Life stressed in its June 8, 2017, letter that it was “unable to

10

determine, at this time,” if Mr. Bancroft’s life expectancy met the ABPR’s requirements.

11

(4/19/18 Crowe Decl. ¶ 3, Ex. 24.) The letter also “assured” Mr. Bancroft that it was “not

12

a permanent denial.” (Id.) It encouraged Mr. Bancroft to submit new information for its

13

review and stated that it would “gladly reassess” his claim for accelerated life insurance

14

benefits. (Id.) Finally, the letter also encouraged Mr. Bancroft to contact Minnesota

15

Life’s claims examiner with any questions and provided her direct extension. (Id.) There

16

is no dispute that in response to this letter, Mr. Bancroft did not attempt to contact

17

Minnesota Life but rather, hired counsel and sent his mandatory IFCA pre-suit notice

18

dated June 22, 2017, to Minnesota Life and Washington State’s Office of the Insurance

19

Commissioner. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. E; Freeman v. State Farm Mut.

20

Auto. Ins. Co., No. C11-761RAJ, 2012 WL 2891167, at *4 (W.D. Wash. July 16, 2012)

21

(“The court holds that IFCA's pre-suit notice provision is mandatory, and that failure to

22

//

ORDER - 43

1

satisfy it mandates dismissal of an IFCA claim.”). Mr. Bancroft then filed suit on August

2

2, 2017. (See Compl.)

3

The WAC provision at issue requires that “[t]he parties shall attempt to resolve the

4

matter promptly and amicably.” WAC 284-23-730. The provision is a mutual obligation

5

placed on both the insurer and the insured. Based on the undisputed facts stated above,

6

there is no evidence from which a jury could find that Minnesota Life violated its duty to

7

attempt to resolve the matter promptly and amicably. Minnesota Life’s June 8, 2017,

8

letter emphasized that its determination was not “permanent” and encouraged further

9

contact and discussion with Mr. Bancroft. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24.) If

10

anything, the undisputed facts indicate that it was Mr. Bancroft who failed to comply

11

with his obligations under this WAC provision and who rushed to suit. Further, as

12

discussed above, although the WAC provides that in the case “the disagreement is not

13

[promptly and amicably] resolved, the claimant has the right to mediation or binding

14

arbitration,” WAC 284-23-730, Mr. Bancroft never invoked this right, see supra

15

§ III.C.2. Accordingly, the court denies Mr. Bancroft’s motion for summary judgment on

16

this issue and grants summary judgment to Minnesota Life instead.

17

3. WAC 284-30-330(1)

18

WAC 284-30-330(1) provides that “[m]isrepresenting pertinent facts or insurance

19

policy provisions” is “defined as [an] unfair method[] of competition and [an] unfair or

20

deceptive act[] or practice[] . . . specifically applicable to the settlement of claims.”

21

WAC 284-30-330(1). Mr. Bancroft contends that Minnesota Life “‘misrepresent[ed]

22

pertinent facts’ and misrepresent[ed] ‘policy provisions’” by stating in its June 8, 2017,

ORDER - 44

1

letter to Mr. Bancroft that “the medical information does not support a life expectancy of

2

24 months or less.” (Plf. 2d MSJ at 18 (quoting WAC 284-30-330(1)).) Without citation

3

to the record, Mr. Bancroft argues that “this is not true” and that “[t]here is medical

4

information which fully supports such a life expectancy prognosis.” (Id.)

5

Mr. Bancroft’s lack of citation to the record is sufficient in itself to deny his

6

motion for summary judgment. 17 Indeed, he cites to no medical expert testimony at all in

7

support of his argument concerning Minnesota Life’s statement. Nevertheless, Mr.

8

Bancroft’s argument appears to be based on Mr. Kelley’s expert opinion that “Minnesota

9

Life misrepresented a critical fact as the basis for denying [Mr.] Bancroft’s claim.” (See

10

Kelley Decl. ¶ 2, Ex. J at 11.) As discussed above, Mr. Kelley’s expert opinion is not

11

admissible. See supra § III.A. Thus, there is no admissible expert testimony to underpin

12

Mr. Bancroft’s argument concerning the medical information at issue here.

13

To the contrary, all of the medical testimony in this case supports the

14

reasonableness of Dr. Shapland’s analysis. (Cowan Dep. at 13:3-12, 15:1-16:1, 61:19-

15

63:8; Grinblatt Decl. ¶¶ 6, 10.) Accordingly, no reasonable juror could conclude that

16

Minnesota Life violated WAC 284-30-330(1) based on the statement at issue. The court,

17

therefore, denies Mr. Bancroft’s motion and grants summary judgment to Minnesota Life

18

on this issue.

19

//

20
17

21
22

“Judges are not like pigs, hunting for truffles buried in briefs.” Christian Legal Soc.
Chapter of Univ. of California v. Wu, 626 F.3d 483, 488 (9th Cir. 2010) (internal quotation
marks omitted) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) and United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curiam)) (alteration omitted)).

ORDER - 45

1

Mr. Bancroft also argues that Minnesota Life violated WAC 284-30-330(1)

2

because its June 8, 2017, letter stated that “we are unable to determine, at this time, if

3

your life expectancy will be less than 24 months, which the policy requires.” (See Plf. 2d

4

MSJ at 18-19; see also 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) Mr. Bancroft argues that

5

this statement violates WAC 284-30-330(1) because the ABPR defines a “terminal

6

condition” as “a condition . . . which directly results in a life expectancy of twenty-four

7

months or less.” (11/06/17 Marisseau Decl. ¶ 4, Ex. A at ML 0037 (bolding added).)

8

Minnesota Life admits that this incorrect statement of the policy language appeared in its

9

June 8, 2017, letter. (Def. MSJ at 18.) However, Mr. Bancroft ignores the fact that the

10

letter begins with a statement of the correct policy language and then restates the correct

11

policy language two more times. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) No

12

reasonable juror could conclude that Minnesota Life had breached WAC 284-30-330(1)

13

by “[m]isrepresenting . . . insurance policy provisions” on the basis of the single error

14

Mr. Bancroft cites when that error is read against the letter as a whole, which states the

15

correct policy language three times. Moreover, Mr. Bancroft provides no evidence that

16

he was ever misled by this one incorrect statement of policy language. Thus, he fails to

17

prove the causation element of his CPA claim. See Ledcor Indus. (USA), Inc., 206 P.3d

18

at 1262. Accordingly, the court denies Mr. Bancroft’s motion for summary judgment on

19

this issue and enters summary judgment in favor of Minnesota Life on the same issue.

20

4. WAC 284-30-330(4)

21

WAC 284-30-330(4) provides that “[r]efusing to pay claims without conducting a

22

reasonable investigation” is “defined as [an] unfair method[] of competition and [an]

ORDER - 46

1

unfair or deceptive act[] or practice[] . . . specifically applicable to the settlement of

2

claims.” WAC 284-30-330(4). Mr. Bancroft argues that Minnesota Life violated this

3

WAC provision based on his criticism of Dr. Shapland’s analysis of Dr. Cowan’s

4

opinion, Dr. Shapland’s review of the medical literature, and her conclusion that his life

5

expectancy was greater than 24 months in June 2017. (Plf. 2d MSJ at 19.) For all the

6

same reasons that the court denied Mr. Bancroft’s claim for bad faith claim investigation,

7

the court also denies Mr. Bancroft’s CPA claim under WAC 284-30-330(4) and enters

8

summary judgment in Minnesota Life’s favor. See supra § III.E.

9

5. WAC 284-30-380(1)

10

Finally, Mr. Bancroft brings a CPA claim based on Minnesota Life’s alleged

11

violation of WAC 284-30-380(1). (Plf. 2d MSJ at 19-20.) WAC 284-30-380(1) provides

12

that “[t]he insurer must not deny a claim on the grounds of a specific policy provision,

13

condition, or exclusion unless reference to the specific provision, condition, or exclusion

14

is included in the denial.” WAC 284-30-380(1). Mr. Bancroft argues that Minnesota

15

Life violates this provision because it applied a “90% certainty” in assessing an insured’s

16

life expectancy but does not mention this standard in the ABPR or in its June 8, 2017,

17

letter. (Plf. 2d MSJ at 19-20.) For the same reasons that the court denied Mr. Bancroft’s

18

motion for summary judgment on his CPA claim based on WAC 284-23-680, the court

19

does so here as well. See supra § III.F.1, § III.B.1. Mr. Bancroft cannot establish the

20

causation element of his CPA claim because Dr. Shapland testified that her June 2017,

21

opinion concerning Mr. Bancroft’s life expectancy would have been the same whether

22

she applied the “90% certainty” standard or the “more likely than not” standard Mr.

ORDER - 47

1

Bancroft advocates. (See 5/7/18 Shapland Decl. ¶ 10.) Accordingly, the court concludes

2

that he cannot prove the causation element of his CPA claim. For this reason, the court

3

denies Mr. Bancroft’s motion and enters summary judgment in Minnesota Life’s favor

4

instead.

5

In sum, the court denies Mr. Bancroft’s motion for summary judgment on all

6

aspects of his CPA claim and enters summary judgment in favor of Minnesota Life on

7

those same claims.

8

G.

9

Covenant of Good Faith and Fair Dealing, Negligence, and Declaratory Relief
Mr. Bancroft asks the court for summary judgment concerning liability on all of

10

his claims. (Plf. 2d MSJ at 28.) Mr. Bancroft, however, provides no argument on his

11

claims for breach of the covenant of good faith and fair dealing, negligence, and

12

declaratory relief. (See generally id.; see also Compl. ¶¶ 49-54, 68-71.) Minnesota Life

13

asserts that it is entitled to summary judgment on these claims for “the same reasons [Mr.

14

Bancroft’s] IFCA, CPA[,] and bad faith claims fail.” (Def. MSJ at 24.) Mr. Bancroft

15

provides no response to this argument. (See generally Plf. Reply; Plf. Resp.) Having

16

reviewed these additional claims and the court’s grounds for granting Minnesota Life

17

summary judgment on Mr. Bancroft’s IFCA, CPA, and bad faith claims, the court agrees

18

with Minnesota Life and grants summary judgment in its favor on Mr. Bancroft’s

19

//

20

//

21

//

22

//

ORDER - 48

1

remaining claims.

2
3

IV.

CONCLUSION

Based on the foregoing analysis, the court DENIES Mr. Bancroft’s motion for

4

partial summary judgment (Dkt. # 29) and GRANTS summary judgment on Minnesota

5

Life’s cross motion with respect to all of Mr. Bancroft’s claims (Dkt. # 35).

6

Dated this 18th day of July, 2018.

7
8

A

9

JAMES L. ROBART
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 49