Feijoo v. GEICO General Insurance

137 F. Supp. 3d 1320, 2015 U.S. Dist. LEXIS 132667, 2015 WL 5786740
District Court, S.D. Florida·Decided September 30, 2015·No. Case No. 1:14-cv-24659-KMM·Published·Cited by 2 cases

Opinion

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court upon Defendant GEICO General Insurance Company’s (“GEICO”) Motion for Summary Judgment (the “Motion”) (ECF No. 50). Plaintiff Norma Feijoo (“Feijoo”) filed a Response in Opposition to Defendant’s Motion (the “Response”) (ECF No. 77), and Defendant filed a Reply (the “Reply”) (ECF No. 88). The Motion is now ripe for review. For the reasons set forth below, Defendant’s Motion for Summary Judgment is GRANTED.

I. BACKGROUND

Upon a review of the record, including the exhibits submitted, the following facts are undisputed and supported by the record before this Court.1

On January 6, 2008, Jose Garcia (“Garcia”) was approaching an intersection in Miami when he failed to stop prior to rear-ending a vehicle driven by Luis Borroto, in which Plaintiff, Norma Feijoo, was a passenger. On the date of the accident, Garcia was insured under an automobile policy issued by GEICO that was effective from January 1, 2008 to-April 9, 2008 (the “Policy”) (ECF No. 51-1). The Policy provided bodily injury (“BI”) liability coverage in the amount of $25,000 per person and $50,000 per accident. Id.

The same day, Garcia’s son reported the accident to GEICO, and GEICO opened a claim and began its investigation. On January 10, 2008, GEICO received an estimate for $809.88 to repair the damage to Fei-joo’s vehicle. As part of its claim processing, GEICO noted in its records that the accident did not result in any damage to glass and there was no air bag deployment.

Also on January 10, 2008, Feijoo underwent X-rays of the cervical, lumbar and [1323] dorsal regions of her spine at a radiology center. The X-rays showed both osteoporosis and mild degenerative changes, inchid-ing disc space - narrowing. The X-rays showed no evidence' of fracture in any of Feijoo’s spinal regions. On January 29, 2008, GEICO learned that Feijoo was seeking treatment at Fast Rehabilitation Center. That same day, GEICO attempted to contact Garcia regarding Feijoo’s claim but was told he was unavailable.

On February 28, 2008, GEICO dispatched field representative Mabelle O’Neal to visit Feijoo. O’Neal was informed that Feijoo was still receiving treatment for her injuries. The following day, GEICO mailed a letter to Teresa Garcia, Garcia’s wife, advising her that Feijoo “may still be treating for injuries from this loss” and that they “will continue to keep [her] informed of any developments on this claim.” (ECF 51-6). Several similar letters were sent to Mrs. Garcia from March 27, 2008 through April 2, 2009 apprising her of the status of Feijoo’s claim. During this period of time, GEICO attempted on multiple occasions to, determine whether Feijoo was still receiving treatment and if she had experienced any out of pocket expenses.

On June 12, 2008, GEICO received a Letter of Representation (“LOR”) from attorney Nicholas Thompson of Reifkind & Thompson, P.A. - advising that his office had been retained to represent Feijoo in relation to the January 6, 2008 accident. On the same date, Thompson’s office advised GEICO that they had not yet obtained any treatment information for Fei-joo. Upon receiving the LOR, GEICO’s claims adjuster, Ms. Hart, forwarded a certified eopy of the Policy to Thompson on June 24, 2008 and advised him that an affidavit of coverage would be provided under separate cover. Following up on these communications, Hart contacted Thompson’s office on June 27, 2008 to request information regarding Feijoo’s treatment status.

Ón July 30, 2008, Garciá contacted GEI-CO regarding Feijoo’s treatment status and was informed she was still receiving treatment and that GEICO would keep him updated. Hart contacted Thompson in August and October to obtain information on Feijoo’s treatment status' and she was advised that Thompson’s office was still collecting medical records and did hot know when a demand would be sent. Hart once again contacted Thompson’s-office on November 10, 2008 to get an update on Feijoo’s treatment' status and was informed that she was no longer in treatment, but that they were still collecting medical records in order to send a demand. On December 19, 2008 and January 10, 2009, Hart attempted to reach ,Thompson again to request information on Fei-joo’s treatment status.

From January through July of 2009, GEICO sent multiple letters to Thompson requesting medical records and documentation relating to Feijoo’s BI claim so that it could be evaluated. In addition to the letters, GEICO contacted Thompson’s office six times between February -10, 2009 and July 5, 2009 to obtain information on Feijoo’s treatment status, request a personal injury protection (“PIP”) logy and find out when a demand could be expected.

On August 31, 2009, GEICO received a letter from Thompson’s office with a. time-limited demand to settle Feijoo’s claim against Garcia for the nominal policy limit of $25,000 by September 28, 2009. (ECF No. 51-1 0). A copy of the police report from the accident and a complete set of Feijoo’s medical records were enclosed [1324] with the letter as part of the demand package. Records from Feijoo’s treatment by Dr. Ralph Miniet of Fast Rehabilitation Center showed that he diagnosed her with a sprain/strain in three regions of her spine and assigned her a 5% permanent impairment rating. The records also indicated that Feijoo was under Miniet’s care from January 10, 2008 through March 21, 2008 with a total cost of treatment of $13,073. Also included in the demand package was the medical opinion of Dr. Barry Schapiro, a board certified orthopedic surgeon, who evaluated and treated Feijoo from June 4, 2009 until July 30, 2009. According to Dr. Schapiro, Feijoo sustained a 10% permanent physical impairment and possibly would need surgery in the future if her injuries did not improve.

On September 9, 2009, GEICO sent correspondence to Garcia regarding the status of Feijoo’s' claim. The letter stated, “The automobile insurance policy you have ... provides you with personal Bodily Injury liability limits of $25,000 for any one person injured in the accident.” (ECF No. 51-12). It further stated that Feijoo’s current demand to settle the claim was for the policy limit. Id. The letter also stated that if ■ GEICO ■ was “unable to resolve this claim, it is possible that, a law suit may be filed against” Garcia. Id. The. letter advised that GEICO would provide counsel to Garcia in the event of a lawsuit and that Garcia had the right to retain independent counsel. Id. Finally, the.letter noted that “the possibility exists of a judgment that exceeds your policy limits” and that Garcia would be responsible for any excess. Id.

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Feijoo v. GEICO General Insurance, 137 F. Supp. 3d 1320, 2015 U.S. Dist. LEXIS 132667, 2015 WL 5786740 (S.D. Fla. 2015).

137 F. Supp. 3d 1320 (Feijoo v. GEICO General Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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