FALCONE v. LIBERTY MUTUAL INSURANCE CO.

2017 OK 11, 391 P.3d 105, 2017 WL 587321, 2017 Okla. LEXIS 12

Opinions

OPINION

WATT, J.:

¶ 1 At issue in this appeal is whether defendants/appellees Liberty Mutual Insurance Company and LM General Insurance Company have committed the tort of bad faith by withholding payment of “compensatory damages” from plaintiff/appellant Malinda Fal-cone. This Court previously retained this case. We hold that summary judgment was premature and that the question is one for the jury.

¶ 2 Plaintiff Falcone seeks compensatory and punitive damages for the breach of good faith and fair dealing by Defendant for its refusal to pay her medical bills incurred at the emergency room Level 2 (L2) trauma center under the uninsured/ underinsured motorist (UM) insurance coverage of her mother, Linda Smith. The trial court granted summary judgment in favor of defendant and denied Plaintiffs motion for new trial.

¶ 3 Plaintiffs request for additional briefing was deferred to the decision on the merits. The request is denied.

FACTS

¶ 4 Plaintiff was injured in an automobile accident while riding as a passenger in the Kia Optima driven by her mother, Linda Smith, on October 5, 2013, in Oklahoma City, Oklahoma. The accident was caused by defendant, Anthony Lewis, an uninsured motorist, who ran a stop sign and collided with Ms. Smith’s vehicle. Plaintiff was taken by ambulance to the OU Medical Center Emergency Room. The ER transferred her to its L2 trauma center. The medical bill from OU Medical Center was $ 47,203.00 for the ER treatment, which included $ 24,420.25 for the L2 trauma center. Additional charges were also incurred for treatment elsewhere after the date of the accident, and Plaintiff submitted medical bills in the total amount of $ 67,-098.23 to Defendant Liberty Mutual Insurance Company to be paid as “compensatory damages” under her mother’s UM policy coverage.

¶ 5 Liberty Mutual submitted the medical records to two expert witnesses for review. The first expert, Dr. Tereshchenko, opined that Falcone did not meet the triage criteria for LI or L2 trauma, and that the three CT scans performed were not necessary. The other expert, Dr. Stewart, also concluded Falcone did not fit L2 trauma patient guidelines, and found “no evidence in the medical record or the ambulance treatment record to substantiate an L2 trauma response at University Hospital as reasonable and necessary.” Dr. Stewart noted Falcone was discharged after four hours of her arrival with a cervical collar, but without a pain medicine prescription. The emergency room charges and the L2 trauma charges were submitted to Liberty Mutual, which denied the L2 trauma charges as unnecessary.

¶ 6 Falcone filed a petition, alleging breach of contract of the UM benefits, for failing to pay the L2 trauma charges as “compensatory damages” under the UM contract provisions, and the breach of the duty of good faith and fair dealing (bad faith). Liberty Mutual filed its motion for summary judgment, raising the defense that it is not bad faith to question the reasonableness of the medical charges. After several lower offers were made by Defendant to settle, it proffered $ 100,000.00 on December 23, 2014, as the “unconditional payment of uninsured motorist limits.”

¶7 On July 11, 2016, the district court granted the motion for summary judgment in favor of Liberty Mutual. The court ruled Oklahoma law allows an insurer to question the reasonableness of medical charges without being in breach of the duty of good faith and fair dealing. The court’s order provides:

11. The Court has not identified any binding precedent in Oklahoma to the effect that all emergency room charges following an accident are, as a matter of law, considered to be ‘compensatory damages’ for purposes of a UM claim. Plaintiff Falcone has relied on Radford-Shelton Associates Dental Laboratory, Inc. v. Saint Francis Hospital, Inc., 1976 OK CIV APP 41, 569 P.2d 506. Radford-Shelton is, however, distinguishable from this case. Radford-Shelton, concerned the issue of ‘successive tortfeasors’ and whether the original tort-feasor had a right to secure contribution against another party who negligently aggravated the initial injury. Id., at 507. The Court there held that a right of contribution existed because, to hold otherwise, would have resulted in unjust enrichment on the part of the subsequent tortfeasor. Id., at 511....

12. Based on the undisputed facts of this case, the Liberty Mutual Defendants acted within their rights to analyze Plaintiff Fal-cone’s UM claim through the lens and/or context of OUJI 4.1K. More specifically, as a matter of law, the Liberty Mutual Defendants did not commit the tort of bad faith by considering whether Plaintiff Falcone’s emergency room charges were reasonable, in light of the necessary medical care and treatment provided during the emergency room visit, rather than compensating Plaintiff Falcone for the full amount of the emergency room medical charges that were incorrect. See OUJI 4.1K.¹

13.... [0]ther than the claim addressed above in this Journal Entry, Plaintiff Fal-cone has not asserted that the Liberty Mutual Defendants engaged in any misconduct in this ease.

OFFERS AND NEGOTIATIONS

¶8 Defendant’s adjustor Dunlap initially evaluated Plaintiffs claim at between $37,-855.23-$ 42,855.25 because the peer review group opined the three CT scans were unnecessary. It was their opinion that x-rays were sufficient. Dunlap offered $37,855.23, which consisted of: $28,855.23 for medical bills; $10,000.00 for non-economic damages; less $ 1,000.00 for medical pay coverage. Dr. Stewart opined Plaintiffs injuries were not L2 trauma level. Dunlap later increased the range of the offer to $ 42,855.23-$ 55,677.98, adding the cost of GT scans because the first and second peer reviews differed. Defendant sent a cheek for $ 52,677.98 to Plaintiff. However, Plaintiff did not cash the check. Plaintiff filed her petition on August 4, 2014, for breach of contract and bad faith after approximately ten months of negotiations resulting in offers of nearly $15,000.00 less than the documented bill Plaintiff presented to Defendant. She amended her petition on October 3, 2014, adding LM General as a party. After the lawsuit was filed, Defendant sent a check on December 23, 2014, for $100,000.00 representing the “unconditional payment of UM limits,” more than one year after Plaintiff incurred the medical expenses.

¶ 9 Defendant offered less than the maximum amount of its evaluations after taking the position the L2 trauma treatment was unwarranted. More than once, it offered the low figure instead of the higher one. The change in the offers also could be seen as arbitrary attempts to close a case. Ultimately, Plaintiff was forced to file a lawsuit, after which Defendant sent a check for $100,-000.00, the UM limits of the policy.

DISCUSSION AND AUTHORITY

¶ 10 In Christian v. American Home Assurance Company, 1977 OK 141, 577 P.2d 899, this Court adopted the rule that an insurer has an implied duty to deal fairly and to act in good faith with its insured. The violation of this duty gives rise to an action in tort for which consequential damages, as well as punitive damages, may be sought. Id., at 904. We did not hold that an insurer breaches this duty merely by litigating a claim or by receiving a judgment against it in an amount larger than it offered its insured. Tort liability is to be imposed only upon a clear showing “that the insurer unreasonably, and in bad faith, withholds payment of the claim of its insured.” Id., at 905. In this case, whether withholding payment for the costs of the trauma center as “compensatory damages” was unreasonable and in bad faith is a fact question for a jury. See Newport v. USAA, 2000 OK 59, 11 P.3d 190; McCorkle v. Great Atlantic Insurance Co., 1981 OK 128, 637 P.2d 583. We have held that medical expenses can constitute “compensatory damages.” Southwestern Greyhound Lines, Inc. v. Rogers, 1954 OK 40, 267 P.2d 572; Denco Bus Lines, Inc. v. Hargis, 1951 OK 11, 204 Okla. 339, 229 P.2d 560. The amount of the bill Plaintiff received for the treatment at the L2 trauma center was completely beyond her control, as was the decision of the ER doctor to send her there in the first place.

¶ 11 While an insurance company may consider the reasonableness of compensatory damages when it questioned whether the L2 trauma center was necessary, we find the trial court erred in granting summary judgment in Defendant’s favor, holding as a matter of law that Defendant did not commit the tort of bad faith. A jury’s determination of the facts is necessary to determine whether a lack of good faith is shown by Defendant’s offers to Plaintiff over the course of one year, which ultimately led to Plaintiffs lawsuit and the offer by Defendant of the policy’s UM limits of $100,000.00. We hold the significance of the undisputed facts, and whether Defendant’s actions over the course of their negotiations constituted bad faith, are questions for the trier of fact. Summary judgment in favor of Defendant was premature and must be reversed.

¶ 12 The trial court’s order denying Plaintiffs motion for new trial is reversed. This case is remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.

¶ 13 REVERSED AND REMANDED.

Combs, C.J., Kauger, Watt, Winchester, Edmondson, and Colbert, JJ., concur; Gurich, V.C.J., (by separate writing), and Reif, J., concur in part, dissent in part.

1 . The trial court's reference to the Oklahoma Uniform Jury Instructions-Civil 4.1 (OUJI-CIV 4.1) recognizes a factual issue was presented. Pursuant to 4.1(K), a jury would decide the amount of damages based on "the reasonable expenses of the necessary medical care, treatment, and services, past and future,” if it decides in Plaintiffs favor.