Wood v. Provident Life and Accident Insurance Company, No. 2:2017cv02330 - Document 77 (D. Ariz. 2018)
Court Description: ORDER denying 46 Motion for Partial Summary Judgment; finding as moot 49 Motion to Seal Document; granting 51 Motion for Summary Judgment; granting 51 Motion to Continue; granting in part and denying in part 67 Motion to Strike. The parties shall, on or before 6/12/2018, submit a jointly proposed schedule for the remainder of this case. Signed by Judge David G Campbell on 5/29/2018.(DGC, nvo)
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Wood v. Provident Life and Accident Insurance Company 1 Doc. 77 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas Scott Wood, Plaintiff, 10 11 ORDER v. 12 No. CV-17-02330-PHX-DGC Provident Life and Accident Insurance Company, 13 Defendant. 14 15 16 Plaintiff Thomas Wood, M.D., filed a complaint against Defendant Provident Life 17 and Accident Insurance Company, alleging that it violated the parties’ contract by 18 withholding certain disability insurance benefits. Doc. 1-1 at 5-12.1 Each party has 19 moved for partial summary judgment on the cause of Plaintiff’s disability. Docs. 46, 51. 20 Plaintiff also asks the Court to reopen discovery (Doc. 51 at 8), and Defendant asks the 21 Court to strike some of Plaintiff’s evidence (Doc. 67 at 9-12). The motions are fully 22 briefed and, unfortunately, the Court has no time available for oral argument before the 23 month of July. Because the Court does not wish to delay resolution of these motions that 24 long, and oral argument will not significantly aid the Court’s decision, the Court issues 25 this order without oral argument. Fed. R. Civ. P. 78(b); LRCiv 7.2(f). The Court will 26 grant partial summary judgment to Plaintiff. 27 28 1 Citations throughout this order are to page numbers placed at the top of each page by the Court’s electronic filing system. Dockets.Justia.com 1 I. Preliminary Issues. 2 A. 3 Defendant granted Plaintiff limited disability benefits after determining that he is 4 totally disabled due to a “Sickness,” as defined by the insurance policy. Doc. 52-3 at 3. 5 Defendant seeks summary judgment on two issues: (1) whether Plaintiff is residually 6 disabled, and (2) whether an “Injury” caused Plaintiff’s disability. Doc. 46. Plaintiff 7 contends that the Court should not consider the first issue. Doc. 51 at 5-8. 8 9 Residual Disability and the Motion to Reopen Discovery. 1. Waiver. Plaintiff argues that Defendant waived the residual disability argument by not 10 raising it as an affirmative defense. 11 however, that the argument is an affirmative defense. “An affirmative defense is a 12 defense that does not seek to negate the elements of the plaintiff’s claim, but instead 13 provides a basis for avoiding liability even if the elements of the plaintiff’s claims are 14 met.” S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary to Rule 8 15 (2018) (citing cases). Plaintiff has the burden of proving that he was entitled to full 16 disability benefits under the contract, something he cannot do if he fails to prove that he 17 was unable to work. The residual disability argument negates an element of Plaintiff’s 18 claim, and is not an affirmative defense. Doc. 51 at 5-6. The Court is not persuaded, 19 And even if the argument is an affirmative defense, the Ninth Circuit has held that 20 affirmative defenses are not waived if they were unavailable when an answer was filed. 21 See Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005). Defendant 22 plausibly demonstrates that it did not learn Plaintiff was still working until after it filed an 23 answer and conducted discovery in this case. The Court declines to find waiver. 24 2. Estoppel. 25 Defendant’s initial claim investigation concluded that Plaintiff was totally 26 disabled. Doc. 52-2 at 2. Plaintiff contends that this initial finding precludes Defendant 27 from now arguing that he is residually disabled. Doc. 51 at 6-7. Specifically, Plaintiff 28 argues that an insurer cannot change the basis for its coverage decision during litigation -2- 1 “if the insurer knew, or should have known of the additional basis for its decision.” Id. 2 at 6. The treatise Plaintiff cites acknowledges that the relevant law varies among the 3 states. See id. (citing Steven Pitt et al., 14 Couch on Ins. § 198:54 (3d ed. 2017) (noting 4 that “there is contrary authority”)). Plaintiff appears to agree. See Doc. 73 at 5 (noting 5 that “[a]t least some courts disagree” with the proposition that an insurer can change its 6 disability determination in subsequent litigation). But Plaintiff does not cite, and the 7 Court has not found, any controlling Arizona law on this issue. 8 And in any event, Plaintiff does not meet the standard he proposes. Plaintiff 9 contends that Defendant knew or should have known that he continued to work at the 10 time it made its findings of total disability in January and August 2016. Doc. 51 at 7. 11 Plaintiff emphasizes that Defendant interviewed his treating physicians and reviewed 12 voluminous records that included a single note that Plaintiff had “stopped working as 13 much.” Id. (citing Doc. 47-4 at 88). Defendant counters that Plaintiff impeded its initial 14 disability investigation by misrepresenting whether he had returned to work after 15 August 2015. Doc. 67 at 5. Specifically, Plaintiff’s application for disability benefits 16 indicated that he had not returned to work as an anesthesiologist. Doc. 47-2 at 26. 17 Plaintiff also submitted monthly reports to Defendant starting in January 2016 in which 18 he represented that he had neither returned to work nor “worked anywhere for pay, profit, 19 or any other type of earnings.” Doc. 68-1 at 19-35. Plaintiff now concedes that he 20 performed some anesthesia procedures after his alleged onset of disability and continued 21 to earn income for managing his business. Doc. 73 at 3; Doc. 52-4 ¶¶ 36, 40-42. 22 The Court concludes that a single treatment note indicating that Plaintiff had 23 “stopped working as much” did not put Defendant on notice of the residual disability 24 argument, especially in light of Plaintiff’s repeated representations that he was not 25 working. The doctrine of estoppel does not apply. 26 Plaintiff also claims that Defendant did not reveal the residual disability defense 27 until January 26, 2018, when it filed its motion for summary judgment. Doc. 51 at 5; 28 Doc. 73 at 4. But during the Court’s pre-motion conference, Defendant stated its intent to -3- 1 seek summary judgment on this ground. Court’s Livenote Tr. (Jan. 9, 2018). Plaintiff’s 2 counsel acknowledged this argument and expressed his intention to oppose it. Id.2 3 3. Rule 56(d) Motion. 4 Plaintiff requests that the Court delay its ruling on residual disability until the 5 parties can complete at least 90 days of discovery on the issue. Doc. 51 at 8. Rule 56(d) 6 grants the Court discretion to defer or deny a motion for summary judgment in order to 7 allow more time for discovery where the opposing party “shows by affidavit or 8 declaration that, for specified reasons, it cannot present facts essential to justify its 9 opposition[.]” When making a Rule 56(d) determination, the Court should consider 10 “whether the parties have diligently conducted discovery prior to the Rule 56(d) motion, 11 whether they complied with the procedural requirements of the Rule, and whether further 12 discovery would aid the party opposing summary judgment or merely delay the 13 proceedings.” Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement and 14 Power Dist., No. 2:10-CV-290-DAE (BGM), 2016 WL 3613278, at *2 (D. Ariz. 15 Feb. 22 2016). 16 In this case, the parties do not dispute the diligence with which Plaintiff conducted 17 discovery prior to making this Rule 56(d) motion. And the Court finds that any lack of 18 preparation on the residual disability issue was reasonable in light of the narrow scope of 19 the issues during the discovery period. Defendant’s initial claim evaluation resulted in a 20 finding that Plaintiff was totally disabled (Doc. 52-3 at 3), and the parties identified a 21 single issue for the first phase of discovery and summary judgment briefing: whether a 22 Sickness or an Injury caused the disability (Court’s Livenote Tr. (Sept. 1, 2017)). This 23 residual disability argument apparently was first revealed on January 9, four days after 24 discovery had closed. 25 26 2 27 28 Plaintiff makes two arguments for the first time in his reply brief: he disclosed the nature of his continued work early in the discovery process, and Defendant violated its discovery obligations with respect to this argument. Doc. 73 at 4-5. The Court will not consider arguments made for the first time in a reply brief. Gadda v. State Bar of Cal., 511 F.3d 933, 937 n.2 (9th Cir. 2007). -4- 1 Plaintiff also has complied with the procedural requirements of Rule 56(d) by 2 submitting a declaration of counsel specifically stating the need for further fact discovery 3 to adequately respond to Defendant’s residual disability arguments. 4 Plaintiff seeks to depose Defendant’s representative regarding its “interpretation and 5 application of the ‘residual disability’ provisions of the Policy.” Id. ¶ 6. Counsel states 6 that this information will support arguments that (1) Defendant has misapplied the Policy 7 with respect to its “residual disability” provisions, and (2) Plaintiff’s administrative work 8 was so minimal that it is immaterial to the disability determination. Id. ¶ 7. The Court 9 concludes that counsel describes with sufficient particularity the facts he expects to learn 10 See Doc. 54-1. from the anticipated discovery and their value for summary judgment. 11 The Court cannot conclude that the additional discovery sought by Plaintiff will 12 shed no light on the residual disability issue. See Jones v. Blanas, 393 F.3d 918, 930 (9th 13 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991)). The Court will grant 14 Plaintiff’s Rule 56(d) motion and deny the summary judgment motions on the residual 15 disability issue without prejudice to their refiling after additional discovery. 16 B. 17 Defendant contends that the timing of Dr. Robert Rovner’s expert disclosure 18 requires the Court to preclude his opinion for purposes of summary judgment. Doc. 67 19 at 10-11. Plaintiff counters that he disclosed Dr. Rovner’s opinion before the Court’s 20 discovery deadline. Doc. 73 at 7-8. Dr. Rovner’s Expert Opinion. 21 The Court’s case management order identifies January 5, 2018, as the deadline for 22 the first phase of discovery. Doc. 14 ¶ 4. Defendant received Dr. Rovner’s expert 23 disclosure on January 2, 2018. Doc. 69-1 at 26-30. Defendant contends that it should 24 have received this disclosure at least ten days earlier because Plaintiff received the expert 25 disclosure on December 18, but did not mail it to Defendant until December 28. Doc. 67 26 at 10-11. Defendant also argues that the January 2 disclosure was inadequate insofar as it 27 failed to include Dr. Rovner’s prior testimony and fee schedule. Id. at 11. Plaintiff 28 -5- 1 supplemented his disclosure to include that material, but not until January 8. Doc. 69-1 2 at 32-34. 3 To be clear, Defendant does not request an opportunity to depose Dr. Rovner, take 4 further expert discovery, or present a rebuttal opinion. Defendant asks only that the 5 Court preclude Dr. Rovner’s opinion on the central issues of this case because his 6 disclosure arrived three days before the deadline. Doc. 67 at 12. The Court declines to 7 do so. The Court set a short discovery schedule to precede summary judgment motions 8 on a potentially dispositive issue, and did not put in place typical expert disclosure 9 deadlines. Plaintiff’s expert disclosure was made before the discovery deadline 10 established in this shortened schedule. It would be unduly punitive to preclude an expert 11 opinion that was disclosed within the discovery period. And as noted above, preclusion 12 is the only relief Defendant seeks – it does not request further discovery or an opportunity 13 to present a rebuttal expert opinion. 14 C. 15 Defendant asks the Court to strike the declarations of Drs. Edward Prince, Jon 16 Obray, and Kade Huntsman. Doc. 67 at 9-12. This case is subject to the Mandatory 17 Initial Discovery Pilot Project (“MIDP”). Doc. 14 ¶ 1. The MIDP requires that initial 18 disclosures identify persons who “are likely to have discoverable information relevant to 19 any party’s claims or defenses, and provide a fair description of the nature of the 20 information each such person is believed to possess.” Gen. Order 17-08 ¶ B(1). The 21 MIDP also requires parties to disclose any written statement “relevant to any party’s 22 claims or defenses . . . if it is in your possession, custody, or control.” Id. ¶ B(2). If a 23 party identifies supplemental information after its initial disclosure, that party must 24 supplement its response “in a timely manner, but in any event no later than 30 days after 25 the information is discovered by or revealed to the party.” Id. ¶ A(8). “[F]ull and 26 complete supplementation must occur by the [discovery] deadline.” Id. Declarations of Treating Physicians. 27 Plaintiff’s initial disclosure identified Drs. Prince, Obray, and Huntsman as 28 persons with “discoverable information regarding Plaintiff’s injury, and his treatment of -6- 1 Plaintiff’s injury.” Doc. 73-5 at 3; see Doc. 73-5 at 4-5. But Plaintiff did not disclose 2 their 3 Docs. 52-7, 52-8, 60-1, 67 at 9-11. Defendant asserts a violation of the MIDP and asks 4 the Court to strike what it characterizes as “untimely” evidence. Doc. 67 at 9-11. 5 declarations until the The Court finds no error. summary judgment briefing process. See The MIDP requires timely disclosure of written 6 statements in a party’s “possession, custody, or control.” Gen. Order 17-08 ¶ B(2). Each 7 of the declarations was executed after the January 5, 2016, discovery deadline. See 8 Doc. 52-7 (February 21, 2018, for Dr. Huntsman), 52-8 (February 23, 2018, for Dr. 9 Obray), 60-1 (March 2, 2018, for Dr. Prince). And Plaintiff revealed each statement 10 within 30 days of its execution. See Doc. 52-7 (2 days for Dr. Huntsman), 52-8 (same 11 day for Dr. Obray), 60-1 (12 days for Dr. Prince). 12 Defendant next argues that each of the declarations contains impermissible 13 opinion testimony that Plaintiff did not disclose pursuant to Rule 26(a)(2). Doc. 67 at 12. 14 Disclosures under Rule 26(a)(2)(A) must include the identities of treating physicians who 15 have not been specially employed to provide expert testimony in this case, but who will 16 provide testimony under Federal Rules of Evidence 702, 703, or 705. A Rule 26(a)(2)(B) 17 report is required for any opinion of such witnesses that was not developed in the course 18 of their treatment. 19 F.3d 817, 826 (9th Cir. 2011). Thus, Plaintiff may not call any treating physician to 20 render an expert opinion that was not developed in the course of treatment unless that 21 opinion was set forth in a Rule 26(a)(2)(B) report. 22 Rule 26(a)(2)(B) reports for Drs. Prince, Obray, or Huntsman. Their opinions must 23 therefore be restricted to those developed in the course of their treatment of Plaintiff. See Goodman v. Staples the Office Super Store, LLC, 644 Plaintiff has not disclosed 24 The Court concludes that some of the material in the three declarations constitutes 25 opinion not developed in the course of Plaintiff’s treatment. Specifically, much of the 26 material appears to reflect current opinion of Plaintiff’s condition and prognosis, not 27 what the physician observed or concluded during the course of treatment. The following 28 paragraphs constitute opinion testimony that required a report under Rule 26(a)(2)(B): -7- 1 paragraphs 3, 6, 8, 9, and 10 of Dr. Huntsman’s declaration; paragraphs 3 and 9 of Dr. 2 Obray’s declaration; and paragraphs 3, 6, 7, 8, 9, 10, 11, and 13 of Dr. Prince’s 3 declaration. 4 To avoid preclusion, Plaintiff has the burden of showing that his failure to comply 5 with Rule 26(a)(2)(B) was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1); R 6 & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012). Plaintiff 7 acknowledges this rule, but makes no attempt to establish substantial justification or 8 harmlessness. Doc. 73 at 7-8. The Court accordingly will not consider the impermissible 9 opinion in the declarations of Drs. Prince, Obray, and Huntsman. 10 II. Background. 11 Plaintiff is a licensed anesthesiologist who secured a disability insurance policy 12 (the “Policy”) with Defendant in 1991. See Doc. 47-2 at 7. The Policy entitles Plaintiff 13 to disability benefits if he ever becomes totally or residually disabled. See id. at 7-8. 14 Plaintiff sought treatment for degenerative disc disease of the lumbar spine as 15 early as December 2011 (Doc. 47-5 at 53-54), and of the cervical spine as early as 16 April 2014 (Doc. 47-4 at 126). 17 problems throughout his career, but asserts that until August 2015 he was always able to 18 overcome the symptoms and perform his job. Doc. 52-5 at 22. 19 Plaintiff acknowledges that he struggled with back On August 18, 2015, Plaintiff treated a patient with anesthesia during a surgical 20 procedure at Banner Page Medical Center. 21 completed the operation, Plaintiff helped nurses move the patient from the operating table 22 to an adjacent hospital bed. Id. at 22. A nurse was positioned at the patient’s feet, nurses 23 were positioned on each side of the patient’s body, and Plaintiff was positioned above the 24 patient’s head. Id. at 26. As a team, the group lifted the patient and slid her onto a 25 hospital bed. Id. at 22. As an anesthesiologist, Plaintiff’s primary responsibility was the 26 stabilization of the patient’s neck and airway. Doc. 47-5 at 18-19. The nurses positioned 27 on either side of the patient do the “heavy lifting,” but an anesthesiologist might bear 28 some of the weight of the head and shoulders. Id. at 21-22. While holding the patient’s -8- Doc. 47-3 at 21-22. After the surgeon 1 head and shoulders, Plaintiff lifted and pushed the patient with the nurses (the “lifting 2 maneuver”). Doc. 47-3 at 27-28. During this routine maneuver that he had performed 3 without incident thousands of times (id. at 28), Plaintiff suddenly experienced a flash of 4 radiating pain in his spine (id. at 22). Nothing was unusual about the maneuver other 5 than the pain that resulted. Id. at 28. 6 Plaintiff submitted a claim in September 2015 for disability benefits, alleging that 7 he became totally disabled on August 17, 2015. Doc. 47-2 at 25-36.3 Because Plaintiff 8 was 61 years old in August 2015, the length of his disability insurance benefits depends 9 on the cause of his disability. Doc. 47-2 at 7. The Policy defines the two categories of 10 11 12 13 covered causes: Injuries means accidental bodily injuries occurring while your policy is in force. 14 Sickness means sickness or disease which is first manifested while your policy is in force. 15 Id. at 10 (emphasis added). If an Injury causes total disability, Plaintiff receives benefits 16 for the remainder of his life. Id. at 7. If a Sickness causes total disability, his benefits 17 last for 48 months. Id. If an Injury and a Sickness jointly cause total disability, Plaintiff 18 receives benefits for the remainder of his life. Id. at 12. 19 Defendant concluded that Plaintiff was totally disabled due to a Sickness – 20 “chronic, degenerative spine disease that was exacerbated by the patient lifting event of 21 August 18, 2015.” Doc. 52-3 at 3; see also Doc. 52-2 at 2. This finding entitles Plaintiff 22 to 48 months of disability benefits, which will expire on November 16, 2019. Docs. 52-2 23 at 2, 52-3 at 2. Plaintiff alleges that he was injured, and that Defendant wrongfully 24 classified the cause of his total disability as a Sickness. Doc. 1-1 at 5-12. 25 26 27 28 3 Plaintiff clarifies that the lifting maneuver may have occurred on August 18, not August 17. Doc. 47-3 at 21; Doc. 52-4 ¶ 26. -9- 1 III. Legal Standards. 2 A party seeking summary judgment “bears the initial responsibility of informing 3 the district court of the basis for its motion, and identifying those portions of [the record] 4 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 5 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 6 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 7 no genuine dispute as to any material fact and the movant is entitled to judgment as a 8 matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 9 party who “fails to make a showing sufficient to establish the existence of an element 10 essential to that party’s case, and on which that party will bear the burden of proof at 11 trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 12 of the suit will preclude summary judgment, and the disputed evidence must be “such 13 that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 15 No party contests that Arizona law applies to this case. Under Arizona law, 16 undefined terms in insurance contracts are interpreted “according to their plain and 17 ordinary meaning, and the policy’s language should be examined from the viewpoint of 18 one not trained in the law or in the insurance business.” Equity Income Partners, LP v. 19 Chi. Title Ins. Co., 387 P.3d 1263, 1267 (Ariz. 2017) (internal quotation marks omitted). 20 “If a term remains ambiguous after considering any underlying legislative policy, social 21 goals, and the transaction as a whole, a court must construe it in favor of coverage, that 22 is, against the insurer, given that the insurer is in the best position to prevent ambiguity in 23 a standard form contract.” Id. 24 IV. Discussion. 25 The parties move for summary judgment on the cause of Plaintiff’s disability. 26 Docs. 46, 51. This requires the Court to address whether the lifting maneuver was (1) an 27 accidental bodily injury that (2) caused Plaintiff’s disability. 28 - 10 - 1 A. 2 The Policy defines injury as an “accidental bodily injury” (Doc. 47-2 at 10), but it 3 neither explains the meaning of “accidental bodily injury” nor limits its scope to injuries 4 caused by accidental means (see Doc. 47-2 at 10; Doc. 52-11 at 6). For this reason, the 5 Court must interpret the phrase according to its “plain and ordinary” meaning. Equity 6 Income Partners, 387 P.3d at 1267. 7 Accidental Bodily Injury. 1. Bodily Injury. 8 Defendant contends that the lifting maneuver did not cause a “bodily injury” 9 because it did not involve any physical force. Doc. 46 at 12-13 (citing Cent. Nat’l Life 10 Ins. Co. v. Peterson, 529 P.2d 1213, 1217 (Ariz. Ct. App. 1975) (“An accidental bodily 11 injury implies some degree of physical force, no matter how slight.”)). But physical 12 exertion on the job is sufficient force to cause a bodily injury. Peterson, 529 P.2d at 1217 13 (“The physical force in this case consisted of appellee’s exertion in doing his job.”). It is 14 undisputed that the lifting maneuver involved a physical exertion in the course of 15 Plaintiff’s work. However slight the force might have been, Defendant’s physician 16 consultant, Dr. Beavers, acknowledged that the maneuver applied force to Plaintiff’s 17 spine. Doc. 52-10 at 5. 18 Defendant next contends that the lifting maneuver did not cause a “bodily injury” 19 because there is no evidence of “any new lesions.” Doc. 46 at 15. But Dr. Rovner opines 20 that “it is not unusual for a patient’s symptoms to change without there being a 21 discernible change in the patient’s anatomic or physiologic diagnostic measurements.” 22 Doc. 52-9 ¶ 6. Defendant cites no evidence to counter this opinion.4 23 Plaintiff presents evidence that his spinal pain, mobility, and function changed 24 after the lifting maneuver. 25 Doc. 52-9 ¶ 7; Doc. 60-1 ¶ 5. Without a definition of “bodily injury” in the Policy, the Doc. 52-4 ¶¶ 24, 27; Doc. 52-7 ¶ 7; Doc. 52-8 ¶¶ 5-6; 26 4 27 28 Defendant also argues that Plaintiff did not suffer a bodily injury because there is no evidence that the lifting maneuver “had any lasting effect on Plaintiff beyond a temporary exacerbation of Plaintiff’s already existing conditions.” Doc. 46 at 15. This argument concerns causation, which is addressed below, and an issue not presently before the Court: whether Plaintiff is residually disabled. - 11 - 1 Court concludes that the lifting maneuver resulted in a “bodily injury” within the plain 2 and ordinary meaning of that phrase. 3 2. Accidental. 4 Defendant contends that the lifting maneuver was not accidental because it 5 resulted from his intentional performance of “a routine maneuver [he] had done 6 thousands of times before without incident.” Doc. 46 at 12. Plaintiff concedes that his 7 maneuver was intentional, but argues that the lifting maneuver was accidental insofar as 8 it unintentionally triggered his disabling condition. Doc. 51 at 12-17. 9 “Arizona does not distinguish between ‘accidental means’ and ‘accidental results.’ 10 An accident is an accident whether it be in the means or the results.” Peterson, 529 P.2d 11 at 1217. Thus, if Plaintiff’s injury was accidental, it does not matter that the means – a 12 routine lifting maneuver – was not an accident in the traditional sense.5 13 The Arizona Supreme Court confronted an analogous issue in Malanga v. Royal 14 Indemnity Co., 422 P.2d 704 (Ariz. 1967). The insurance contract covered “accidental 15 bodily injuries,” but did not define or limit the term “accidental.” Id. at 706. The insured 16 died after voluntarily consuming a lethal combination of alcohol and barbiturates, and the 17 parties agreed that the insured did not intend to cause his own death. Id. at 705-06. The 18 insurance company argued that the death “was not accidental because the means which 19 caused it were voluntarily and intentionally employed by the deceased.” Id. at 707. The 20 Arizona Supreme Court disagreed: 21 22 23 [A]n effect which was or should have been reasonably anticipated by an insured person to be the natural or probable result of his own voluntary acts is not accidental. Or to put it in the affirmative form, if the result is one which in the ordinary course of affairs would not be anticipated by a 24 25 26 27 28 5 The Peterson court explained that this does not mean that every unexpected illness will constitute an accidental bodily injury, because such “[a]n accidental bodily injury implies some degree of physical force, no matter how slight.” 529 P.2d at 1217. As noted above, this case involved physical force, even if slight. The Court notes that it has previously interpreted the word “accidental” when applied to the means by which an event is caused. Stillwater Ins. Co. v. Dunn, No. CV-14-01829-PHX-DGC, 2015 WL 1778349, at *5 (D. Ariz. Apr. 20, 2015). That definition is not helpful when, as here, the question is whether the result of the event is accidental. - 12 - 1 2 reasonable person to flow from his own acts, it is accidental. The test is, what effect should the insured, as a reasonable man, expect from his own actions under the circumstances. 3 4 422 P.2d at 708 (quoting Cal. State Life Ins. Co. v. Fuqua, 10 P.2d 958, 960 5 (Ariz. 1932)). Applying this test, Malanga concluded that the death was accidental 6 because it was unexpected. Id. 7 The Arizona Supreme Court subsequently replaced the “reasonable man” standard 8 with that of the “average man” to “strike a balance between focusing exclusively on the 9 insured and the subjective state of mind that cannot comprehend death and the artificial 10 ‘reasonable man’ who would declare not an accident any daring, reckless, or foolhardy 11 act.” Valley Dental Ass’n, P.C. v. Great-West Life Assurance Co., 842 P.2d 1340, 1343 12 (Ariz. Ct. App. 1992). The Arizona Supreme Court explained: 13 14 15 16 17 18 One paying the premium for a policy which insures against ‘death by accidental means’ . . . intends to insure against the fortuitous, the unintentional, and the unexpected, that which happens through mishap, mischance or misjudgment. When he pays that premium month after month he does not intend that any act committed by him, no matter how daring, reckless or foolhardy, be adjudged by a court under ‘reasonable man tests’ or ‘natural and probable consequence’ standards to deprive his beneficiary of contractual rights arising out of his unintended and unexpected and, therefore, accidental death. 19 20 Knight v. Metro. Life Ins. Co., 437 P.2d 416, 420 (Ariz. 1968). Knight requires courts to 21 interpret “accidental” in light of “common speech and usage and the understanding of the 22 average man.” Id. 23 The question in this case therefore becomes what effect Plaintiff, as an average 24 man, should have expected from his participation in the lifting maneuver. Plaintiff 25 experienced sudden and unusual pain while engaged in a routine act he had performed 26 thousands of times before. 27 expected the resulting pain because “Dr. Prince had recommended activity modification” 28 and Plaintiff was aware that his job aggravated his pain. Doc. 67 at 9. But Defendant Defendant contends that an average man should have - 13 - 1 cites no evidence that Dr. Prince advised Plaintiff to avoid even routine activities. See 2 id.6 Nor does Defendant cite evidence that Plaintiff should have expected pain that was 3 significantly different than what he previously had experienced. See id. Based on the 4 undisputed facts, the Court concludes that no reasonable juror could find that an average 5 man in Plaintiff’s circumstances would have expected the debilitating pain that resulted 6 from the routine maneuver. The Court accordingly concludes that the injury suffered 7 from the lifting maneuver was accidental. 8 3. Public Policy. 9 The Court’s interpretation of “accidental bodily injury” comports with Arizona’s 10 public policy to resolve ambiguities in favor of coverage. Equity Income Partners, 387 11 P.3d at 1267; Knight, 437 P.2d at 420; Malanga, 422 P.2d at 707. Defendant could have 12 drafted its Policy to clearly define “injury,” limit its liability to a disability caused solely 13 by a specific kind of injury, or include an applicable exclusion. 14 Defendant did none of these, and the Court concludes that Plaintiff’s injury falls within 15 the plain and ordinary meaning of “accidental bodily injury.” Doc. 47-2 at 11.7 16 Defendant does not cure the ambiguity by relying on legislative policy, social 17 goals, and the transaction as a whole. Absent compelling evidence that the Policy 18 intended a particular definition of “accidental bodily injury,” the Court must resolve the 19 ambiguity in favor of the insured. See Equity Income Partners, 387 P.3d at 1269. 20 B. 21 The Policy contemplates an award of benefits where injury and sickness combine 22 23 24 25 26 27 28 Causation. to cause a disability: 6 Defendant appears to cite an April 2014 treatment note in which Dr. Prince recommended that Plaintiff perform strengthening exercises, take anti-inflammatory medication, and consider “activity modification as much [as] possible.” Doc. 47-5 at 8. Dr. Prince concluded that Plaintiff “may have to consider significant workplace changes” if his condition does not significantly improve. Id. Without similar citations elsewhere in the record, the Court concludes that this single recommendation was insufficient to put Plaintiff on notice that the routine lifting maneuver might result in disabling pain over one year later. 7 The Policy’s only exclusions are for acts of war and “normal pregnancy or childbirth.” Doc. 47-2 at 11. - 14 - 1 2 The fact that a disability is caused by more than one Injury or Sickness or from both will not matter. We will pay benefits for the disability which provides the greater benefit. 3 4 Doc. 47-2 at 12. Thus, the Policy does not limit benefits to disabilities caused solely and 5 independently by injuries. Id. 6 Defendant contends that Plaintiff’s degenerative disc disease caused his disability, 7 and that the lifting maneuver only exacerbated the preexisting condition. See Doc. 46 8 at 14-15. The record may support a finding that the lifting maneuver combined with 9 Plaintiff’s degenerative disc disease to cause his disability, but the Policy’s language 10 makes this point inconsequential. Even if the disease contributed to Plaintiff’s disability, 11 the issue the Court must resolve is whether the lifting maneuver was a cause of Plaintiff’s 12 disability. 13 The Arizona Supreme Court’s decision in Dickerson v. Hartford Accident & 14 Indemnity Co., 105 P.2d 517 (Ariz. 1940), is instructive. Dickerson considered the case 15 of an insured who injured his foot while changing a vehicle’s tire. Id. at 518. The injury 16 exacerbated the insured’s gout, resulting in disability. 17 preexisting gout, the insurer denied benefits because the policy only protected “against 18 loss caused directly and exclusively by bodily injury sustained solely and independently 19 of all other causes through accidental means.” Id. at 518. The insured argued that the 20 injury caused the gout, while the insurer claimed it only aggravated the gout. Id. at 519. 21 Dickerson found sufficient evidence in the record for a jury to conclude that the injury 22 caused the insured’s disability: 23 24 25 26 27 Id. at 519. Relying on the [T]he [gout], which presumably existed in the plaintiff, would probably have continued indefinitely without ever developing to a stage which the ordinary layman and the definitions above cited give the name of “disease,” in the absence of some exciting cause, and was in all probability brought to that stage by the precipitating agency of the [injury]. Id. at 520. 28 - 15 - 1 The question in this case is less complicated. The insured’s policy in Dickerson 2 protected only against loss caused solely by bodily injury. Id. at 518. Plaintiff’s policy 3 awards benefits even where a disability results from multiple causes. The salient point is 4 this: the undisputed facts demonstrate that Plaintiff’s degenerative disc disease was not 5 disabling before the lifting maneuver. Although Plaintiff experienced some symptoms of 6 degenerative disc disease, he lived an active lifestyle without major limitations before 7 August 2015. 8 [degenerative disc disease] for long periods of time, including their entire life, without 9 experiencing a material loss of mobility or functionality.” Doc. 52-9 ¶ 5. Doc. 52-4 ¶ 25. Dr. Rovner opines that people “can live with 10 Even if the Court accepts Defendant’s characterization of the lifting maneuver as 11 an exacerbation of Plaintiff’s degenerative disc disease, the maneuver was a contributing 12 cause of Plaintiff’s disability. 13 succumbing to disability. See Doc. 52-4 ¶¶ 24-25; Doc. 52-5 at 22. Dr. Beavers opines 14 that the disease would eventually have led to disability, but the record is devoid of any 15 indication that Plaintiff would have become disabled in August 2015 had it not been for 16 the lifting maneuver. Doc. 52-10 at 7. The Court concludes that the lifting maneuver 17 was a cause of Plaintiff’s disability when, with his degenerative disc disease, it resulted in 18 a disabling condition. 19 V. Defendant managed his disease for years without Motion to Seal. 20 Defendant filed a motion to seal one exhibit in support of its motion for summary 21 judgment. Doc. 49. Because Defendant cites it in support of its residual disability 22 argument, the Court will deny this motion as moot. 23 IT IS ORDERED: 24 1. Plaintiff’s motion for partial summary judgment (Doc. 51) is granted. 25 Plaintiff’s disability was caused by an accidental bodily injury for purposes 26 of the Policy. The Court will defer judgment on the residual disability 27 issue. 28 - 16 - 1 2. 2 Plaintiff’s Rule 56(d) motion (Doc. 51) is granted. The parties may conduct discovery necessary to resolve the residual disability issue. 3 3. Defendant’s motion for partial summary judgment (Doc. 46) is denied. 4 4. Defendant’s motion to strike (Doc. 67) is granted in part and denied in 5 part as set forth above. 6 5. Defendant’s motion to seal (Doc. 49) is denied as moot. 7 6. The parties shall, on or before June 12, 2018, submit a jointly proposed 8 9 schedule for the remainder of this case. Dated this 29th day of May, 2018. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 -
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