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Lewison v. Western National Mutual Insurance Co.

United States District Court, D. South Dakota, Southern Division

July 21, 2014

CLINTON LEWISON and BEVERLY LEWISON, Plaintiffs,
v.
WESTERN NATIONAL MUTUAL INSURANCE COMPANY, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

KAREN E. SCHREIER, District Judge.

Defendant, Western National Mutual Insurance Company, moves for summary judgment on plaintiffs' bad faith claims. Plaintiffs, Clinton Lewison and Beverly Lewison, resist the motion. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

Clinton and Beverly Lewison were involved in an automobile accident with Alexander West on August 24, 2010. West was entirely at fault because he ran a stop sign. The Lewisons were insured by Western National, and Western National received notice of the accident that same day.

I. Injuries

Although the Lewisons did not go to the hospital immediately after the accident, they both sought out medical care shortly thereafter. On August 25, 2010, Clinton went to Sanford Clinic and was seen by Dr. Jeffry Meyer. His chief complaints were aching pain in his neck, mid-back, low back, and right shoulder. After an examination, Dr. Meyer recommended physical therapy. Clinton began physical therapy on October 13, 2010, and continued until January 13, 2011, at which time his physical therapist discharged him because she felt he had progressed as far as he was able.[1] The physical therapy focused on Clinton's knee, shoulder, back, hip, and neck pain.

In addition to physical therapy, Clinton also received chiropractic care. His first appointment after the accident was on August 27, 2010, when he was seen by Dr. Craig Sauer at Empire Chiropractic. Clinton complained of left knee pain, hip pain, buttock pain, and headaches. Clinton treated with Dr. Sauer thirty-nine times until March 15, 2011.

Although he was receiving physical therapy and chiropractic care, Clinton's knee pain persisted. On December 22, 2010, Clinton met with Dr. Timothy Walker at Sanford Orthopedics & Sports Clinic. Clinton informed Dr. Walker that he had been experiencing knee pain since the accident. Dr. Walker diagnosed Clinton with IT band subluxation and recommended total knee replacement surgery. Clinton had the surgery on February 14, 2011. Following surgery, Clinton attended physical therapy until March 31, 2011, when his physical therapist noted that he had "met all short and long term goals" and discharged him at that time. Docket 23-4 at 123.

Clinton still has lingering aches and pain in his knee and struggles walking normally. He was forced to give up his lawn mowing business and his part-time employment at Miller Funeral Home because of his knee issues. He also continues to have neck and back issues.

Beverly was also injured in the accident. Beverly had a total knee replacement just before the accident, and the accident interfered with her recovery. On September 1, 2010, a week after the accident, Beverly met with Dr. Walker-the doctor who performed her knee replacement surgery-and learned that the accident caused her knee to swell. Dr. Walker instructed her to increase her activity and continue with her physical therapy.

Beverley also treated with Dr. Sauer at Empire Chiropractic from August 27, 2010, until January 5, 2011, to alleviate neck, back, and shoulder pain. Notes from Beverly's last chiropractic visit on January 5, 2011, indicate that she "reported feeling much better, with very little soreness or discomfort at all over the past 2 weeks.... She is to continue home stretches and heat as needed, and return for treatment as needed if she has any further trouble." Docket 23-5 at 18. She did not return for any treatment.

In addition to chiropractic care, Beverly did physical therapy at Avera McKennan Therapy Clinic from August 31, 2010, through January 6, 2011, to strengthen her neck, back, shoulder, and knee. Notes from her last physical therapy session on January 6, 2011, indicate that she was doing well and that she could continue her therapy from home. Docket 23-5 at 46. She did not return for additional physical therapy.

Beverly still struggles maintaining any type of activity for any significant amount of time. For example, she can only bake one batch of cookies whereas she used to have the stamina to bake two.

Beverly has also struggled with post-traumatic stress disorder following the accident. She is often nervous when riding in cars, and she no longer drives herself.

II. Claims Handling

As noted above, Western National was notified of the accident the day it happened, August 24, 2010. Jackie Dekker was initially assigned to monitor the claim. Dekker requested signed medical authorizations and began a medical investigation. Meanwhile, medical bills were paid as received until the limits of the medical pay coverage for both Clinton and Beverly were exhausted in late 2010 and May 2011.

In September 2011, Lewisons' legal counsel, Scott Abdallah, notified Western National that West's policy limits were $25, 000 per person. On October 26, 2011, John Buckley, Western National's Director of Legal Services, took over the Lewison file because Western National had recently been sued by Abdallah on two separate occasions.

In November 2011, Western National received a Schmidt notice from Abdallah. In this notice, Abdallah informed Western National that a tentative settlement was reached with West's insurance company in which the insurance company would pay $25, 000 to both Clinton and Beverly. The settlement was contingent upon Western National's approval and waiver of any subrogation claim against West. On December 8, 2011, Western National ...


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