United States District Court, D. Nebraska
AARON THORNTON and TRICIA THORNTON, Husband and Wife, Plaintiffs,
STATE FARM INSURANCE COMPANIES, Defendant.
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion for Partial Summary Judgment (Filing No. 46), filed by Defendant State Farm Insurance Companies ("State Farm"). For the reasons stated below, the Motion will be granted and Plaintiffs' cause of action for bad faith will be dismissed.
Unless otherwise indicated, the following facts were presented in the parties' briefs and were supported by pinpoint citations to admissible evidence in the record that the parties have admitted, or that the parties have not properly resisted as required by NECivR 56.1 and Fed.R.Civ.P. 56.
On July 19, 2012, Plaintiff Aaron Thornton ("Mr. Thornton") was involved in an automobile accident near the intersection of 25th Avenue and Leavenworth Streets in Omaha, Nebraska, when a vehicle driven by Shane Trussell ("Trussell") suddenly switched lanes in front of Mr. Thornton's motorcycle. Mr. Thornton hit Trussell's vehicle, was thrown from his motorcycle, and later taken by ambulance to Creighton University Medical Center.
At the hospital, Mr. Thornton received staples to close a cut on his right leg. He was also treated for road rash on his back, wrist, and ankles. He was released from the hospital the same day, and was cleared to return to light duty work on July 30, 2012. He used several hours of unpaid leave while recovering from the accident.
On August 30, 2012, Mr. Thornton made a claim with State Farm under Plaintiffs' medical payments coverage, seeking medical payment benefits to cover medical bills incurred in connection with the accident. On September 7, 2012, State Farm issued a check to Mr. Thornton for $1, 000, the limit of Plaintiffs' medical payments coverage. On November 29, 2012, Trussell's insurer offered Plaintiffs $25, 000, the limit of Trussell's policy to settle all claims against Trussell. By letter dated December 11, 2012, Plaintiffs' counsel notified State Farm of the settlement offer from Trussell's insurer. With State Farm's consent, Plaintiffs accepted the $25, 000 settlement offer from Trussell.
Plaintiffs made another underinsured motorist claim ("UIM") claim to State Farm on December 11, 2012. Mr. Thornton claimed that he incurred medical bills totaling $29, 801.19 and lost wages in the amount of $9, 572.40.
State Farm performed a claim investigation to determine the value of Plaintiffs' UIM claim. Richard Buchmann, a State Farm Team Manager, oversaw the claim investigation. He evaluated the UIM claim based on his knowledge of the issues and the damages claimed, his knowledge and experience regarding the amounts paid by State Farm for similar claims, and his knowledge and experience regarding jury verdicts awarded in similar cases. State Farm employees also reviewed the police report regarding the accident, photographs of Mr. Thornton's injuries, Mr. Thornton's medical records and claimed medical bills, and Mr. Thornton's claimed wage loss.
Based upon its investigation, State Farm concluded that the majority of Mr. Thornton's medical bills were incurred on the day of the accident. Specifically, of the $29, 801.19 in claimed medical bills incurred as of December 2012, $24, 442.21 was for treatment rendered on July 19, 2012, the date of the accident. State Farm was not provided with any evidence that Mr. Thornton was permanently disabled as a result of the accident, although he did have a scar on his leg. ( See Filing No. 48-1 at Dep. 68:21-24.)
The policy at issue permitted State Farm to deduct from a UIM claim sums already paid by a liable third party, and other insurance payments received. (Policy, Filing No. 48-3 at ECF 26.) Deducting the $26, 000 already received by Plaintiffs, and taking into account the total medical bills incurred, lost wages claimed, the lack of any permanent disability, and the fact that that most of Mr. Thornton's bills related to the date of the accident, Buchmann concluded the claim had a value of $14, 000.00 to $30, 000.00. State Farm offered Plaintiffs $25, 000 to settle Plaintiffs' UIM claim.
Plaintiffs, through counsel, did not accept State Farm's offer. On February 5, 2013, Plaintiffs' attorney requested that State Farm reconsider its offer and settle for the limits of Plaintiffs' UIM coverage. Plaintiffs claimed for the first time that Mr. Thornton would also "require most likely two to three surgeries at the cost of $5, 000.00 per surgery" to address the appearance of a scar on his right leg. (Letter dated February 5, 2013, Filing No. 48-3 at ECF 46.) In support of Plaintiffs' claims for the anticipated surgeries, counsel for Plaintiffs enclosed notes from Mr. Thornton's plastic surgeon which stated:
SUBJECTIVE: [Mr. Thornton] is coming in for follow-up of his right lower extremity wound that occurred as a result of a motorcycle accident on 07/19/2012. He has now healed. He states that it took about three months. He had gotten to the point where the skin would heal over and then break back open with some blistering. That has now resolved. For the most part he states that it feels okay although it is painful and itchy at times. He has some indentation in that leg that he is concerned about. He has been moisturizing the skin and keeping that new skin protected.
OBJECTIVE:... Right lower extremity wound is now completely healed. He has a hypertrophic scar with evidence of soft tissue loss and some indentation of that ...