Opinion
C.A. No. 02C-07-025 PLA.
Submitted: July 28, 2004.
Decided: September 3, 2004.
Upon Defendant's Motion to Dismiss Denied.
Upon Defendant's Motion for Partial Summary Judgement Granted.
John Stull, Esquire, Wilmington, Delaware, Attorney for Plaintiff.
Paul A. Bradley, McCarter English, LLP, Wilmington, Delaware, Attorney for Defendant.
NON-ARBITRATION CASE TRIAL BY JURY OF 12 DEMANDED.
This 2nd day of September, 2004, upon consideration of Defendant's Motion For Partial Summary Judgment, or, in the alternative, Motion To Dismiss and for Reimbursement Of Costs associated with an independent medical evaluation ("IME"), it appears to the Court that:
1. Defendant is Plaintiff Nancy Ford's insurance provider. Ford was involved in a car accident in 1984 that resulted in back injuries. By 1995, her condition had deteriorated to a point requiring surgery. Ford underwent back surgery in May 1995, after which she claimed total disability.
The parties agree that the insurance contract between them specified that Ford would receive five years of disability payments as long as she was unable to "engage in the substantial and material duties of [her] regular occupation." After five years, the contract entitled Ford to further payments only if she could not perform "any occupation for which [her] education, training, or experience reasonably fit [her]." Ford has a masters degree in English education and was working as an education specialist at the time of her 1995 surgery.
3. During 2000, Ford received three medical examinations by three different specialists, all of whom agreed that Ford was able to work a sedentary job, such as her previous employment as an education specialist. Relying on these opinions, Defendant informed Ford that it would cease issuing disability payments. Defendant's last payment was in January 2001.
4. Ford then filed this suit, alleging breach of the insurance contract and bad faith. She seeks breach of contract damages for the time period that she did not receive disability payments, January 2001 to present, and also a declaratory judgment that she is disabled and entitled to such benefits. Ford also seeks punitive damages for Defendant's alleged bad faith in ceasing payments. An arbitration hearing was held in July 2003, resulting in an arbitrator's order that the Defendant pay Ford $16,700 in wrongfully withheld payments. Defendant properly demanded a trial de novo.
Ford has continued her insurance policy with Defendant. The policy provides for a waiver of premiums while an insured is disabled. Ford thus also seeks to recover the insurance premiums that she paid during the contested period.
5. As part of the discovery process for the trial, Defendant demanded that Ford submit to an IME with Andrew Gelman, D.O. After substantial foot-dragging, Ford agreed to a May 28, 2004 appointment, for which Defendant paid $725.00. Ford called Dr. Gelman's office a half hour before this appointment and attempted to reschedule, but was told she would need to contact the Defendant to do so. Neither Ford nor her attorney, John Stull, Esq. contacted the Defendant, and Ford did not show up for the appointment. Stull sent Defendant a letter after the fact, blaming Ford's failure to appear on Gelman's office.
6. On June 15, 2004, Ford underwent a rescheduled IME by Dr. Gelman. Dr. Gelman agreed with the three previous examiners that Ford could maintain sedentary employment. Dr. Gelman went even further, however, and suggested that such employment would likely do Ford good and that her inability to work was rooted in motivational, rather than medical, problems. Defendant also paid for this exam.
Report of Andrew Gelman, D.O., attached as Exhibit E to Defendant's Amended Motion For Partial Summary Judgment, at 4.
7. Finally, after more foot-dragging and refusal by Ford and her counsel to return contacts, Defendant arranged to depose Ford on July 28, 2004. Ford appeared at this deposition with her husband, Richard Thorton, and her lawyer Mr. Stull. The three began a heated argument among themselves, ignoring repeated overtures from Defense counsel to begin the deposition or to behave in a civilized manner. The result was that Ford refused to be deposed, and also refused to surrender overdue answers to interrogatories that she had brought with her. Further, Defense counsel alleges, and the record provides every reason to believe, that Thorton threatened and used vulgar language towards him. Mr. Stull appears to have done nothing either to prepare his client for her deposition or to diffuse the situation that occurred during Defense counsel's efforts to secure her responses.
Deposition of Nancy Ford (July, 28, 2004) (hereinafter "Tr."), attached as Exhibit C to Defendant's Motion To Dismiss.
Tr. at 11-12.
Tr. at 10. For reasons that are unclear, the court reporter went off the record right as Thorton made a remark beginning with "You can call your mother . . ."
8. On July 28, 2004, Defendant moved for summary judgment on the bad faith claim, arguing that its reliance upon three separate medical experts' reports in making a disability determination could not possibly constitute bad faith under Delaware law. On August 11, 2004, Defendant, justifiably irritated by the aborted deposition, moved to dismiss or, in the alternative, to postpone trial and compel Ford to cooperate in the discovery process by answering interrogatories and allowing herself to be deposed. Defendant also seeks an order banning Thorton from future depositions and for reimbursement of $725.00 for the IME that Ford failed to attend, as well as costs and fees for the aborted deposition and for bringing this motion. The Court heard both the summary judgment motion and the motion to dismiss, etc. on September 2, 2004.
9. Since it could be dispositive of the entire case, I begin by addressing Defendant's motion to dismiss. Superior Court Civil Rule 37(d) provides that thwarting discovery, by refusing to be deposed after proper notice, or by refusing to answer interrogatories, is sanctionable conduct. Rule 37(b) grants the Court broad discretion to fashion any just sanction order, including orders granting dismissal, default judgment, stay of proceedings; and costs. Rule 37 does not specifically list failure to appear for a properly noticed IME as sanctionable. However, Rule 35 states that an IME is a valid discovery tool, and case law shows that Delaware courts are willing to hold a party liable for refusal to undergo a properly noticed IME.
Geroski v. Betton, 2003 WL 21001033, at *1 (Del.Super. Apr. 8, 2003) (Finding that the plaintiff should not have to reimburse the defendant for his failure to show up for an IME because the IME was not properly noticed and was out of state.) This IME was properly noticed and rescheduled at least once to accommodate Ford, and took place in Wilmington where Ford resides.
10. Ford and Stull's outrageous and inexcusable conduct at the aborted deposition provides more than adequate grounds for dismissing this case. Ford is a highly educated woman who can be fairly expected to know that she must comply with court ordered discovery by sitting for a deposition, answering interrogatories, and appearing for an IME. As for Stull, any competent attorney should be expected to advise his client that she has no right to refuse to be deposed or to withhold discovery. Through twelve pages of recorded conversation (that was supposed to be a deposition), Stull never once advised Ford of her obligation to be deposed, nor did he attempt in any way to prevent Thorton's interference. Stull also acquiesced to Ford's, or rather Thorton's, refusal to surrender discovery material without the slightest argument. This episode casts grave doubts upon Stull's ability to navigate this case to a successful conclusion, even if I did not dismiss it here, leaving the Court wondering why it should spend more time considering it.
Tr. Indeed, I find no place in the deposition transcript where Stull even directly addresses Ford. Instead, Stull meekly negotiated with Thorton to allow Ford to speak, and made a halfhearted attempt to mollify him by suggesting they schedule an appointment with the arbitrator. Stull never attempted to dissuade Thorton or Ford from their misguided belief that an arbitrator has the power to decide the case after a trial has been demanded.
Tr. at 12.
Yet, I do not grant this richly warranted dismissal. My hand is stayed only by the fact that Ford won after an arbitration hearing, suggesting that there may be a colorable claim obscured amidst this intransigence. This decision is a close one, however, and I am hereby warning the Plaintiff that the next motion to compel her to cooperate with discovery will be the last. Instead, I will order Ford to complete all outstanding discovery within 30 days, including sitting for a deposition, and also to pay the Defendant for the missed IME, the aborted deposition, and all costs it incurred to bring this motion. Failure to reimburse these costs within 30 days will result in summary dismissal.
11. Defendant's motion for summary judgment on the bad faith claim is warranted. Even viewing all the pleadings and what little discovery that Ford has allowed to be taken in a light most favorable to her, there is not the slightest scintilla of evidence that the Defendant made a wanton or reckless decision to discontinue Ford's benefits. It paid her policy without complaint for five years, and relied upon three expert medical diagnoses in determining that Ford's injuries are not severe enough to preclude her from all employment. A fourth independent expert later agreed. It is difficult to imagine what further steps the Defendant could have taken to avoid a bad faith allegation. It simply is not the law of Delaware that a disability finding irrevocably entitles an insured to a lifetime of payments, regardless of subsequent medical improvement, or that every decision to cease benefits is per se bad faith. Summary judgment on this claim is therefore appropriate.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
12. For the foregoing reasons, Defendant's Motion to Dismiss is DENIED. Defendant's Motion to Compel Nancy Ford To Cooperate With Discovery is GRANTED. Plaintiff shall (1) be deposed within 30 days, (2) complete answers to interrogatories and all other written discovery within 15 days, (3) reimburse Defendant $725.00 for the first IME appointment, (4) reimburse Defendant reasonable costs associated with the first, aborted deposition, (5) reimburse Defendant reasonable costs associated with bringing this motion. It is further ordered that Richard Thorton shall not appear at any further depositions or conferences in this case. Defendant's Motion To Postpone Trial is DENIED. Defendant's Motion For Partial Summary Judgment is GRANTED.