Opinion
No. 02-367-P
February 3, 2004
ORDER
Now before the Court is Plaintiff's Motion for Reconsideration (Dkt.#409, filed December 22, 2003) of this Court's Order of October 22, 2003 (Dkt.#378), and Defendant's Response to said motion (Dkt.# 417, filed January 12, 2004). The October 22, 2003 Order denied Plaintiff's Partial Summary Judgment on the Issue of Bad Faith, and granted Defendants' Motion for Summary Judgment on Plaintiff's Contract and Bad Faith Claims.
Motion for Reconsideration
"An improper use of the motion to reconsider can waste judicial resources and obstruct the efficient administration of justice."Gaschler v. Scott County, Kansas, 963 F. Supp. 971, 980 (D.Kan. 1997). It is improper to file a motion to reconsider as a "vehicle for the losing party to rehash arguments previously considered and rejected by the district court." Id. at 981. "In addition, arguments raised for the first time in a motion for reconsideration are not properly before the court and generally need not be addressed." Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D.Kan. 2002). In sum, `a motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed." Sump v. Fingerhut, Inc., 208 F.R.D. at 327.
First, the Court would specifically note, as stated at page 2 of its October 22, 2003 Order (Dkt.# 378) (hereinafter "Court's Order"), "The basic facts of this case are undisputed." See also, Court's Order, Undisputed Facts, pages 2-15. After considering well over 200 pages of combined briefing by the parties with thousands of pages of exhibits, this Court issued its Order. Ultimately the Court ruled in favor of the Defendants and against the Plaintiff. Plaintiff's attempt to misconstrue this Court's recitation of undisputed facts as "conclusions" ignores the standard for summary judgment set forth in Fed.R.Civ.P. 56, and evinces a total disregard for the Court's analysis.
All of the orchestrated issues raised by Plaintiff are ultimately insignificant to this Court's overall conclusions, and some as demonstrated in Defendant's Response Brief, amount to outright false assertions of facts that Plaintiff knew to be otherwise when the Motion to Reconsider was filed, as pointed out in Defendant's Response brief (Dkt.#417, pages 1-2). Plaintiff does not dispute the Court applied the correct legal standards to the contract and bad faith claims. The Court stands by its interpretation of the facts, and is unpersuaded by Plaintiff's arguments to the contrary.
This Court's Order concluded the undisputed evidence in this case provided multiple bases for each of the independent grounds for granting summary judgment: (I) Plaintiff had no valid claim for additional medical and disability benefits; (II) Mustang had a reasonable basis to dispute Plaintiff's claim for such additional benefits; and (III) that Plaintiff's failure to provide information critical to Defendant's evaluation of his claim made it entirely impossible for Defendant to discharge its obligations under the contract, and serves as an absolute defense against liability.
I. Plaintiff had no Valid Basis for Continued Medical and Disability Benefits
In regard to the first basis for relief granted Defendants, this Court found "The more recent decisions of the Oklahoma Supreme Court characterize the bad faith/breach of contract action as a single cause of action with component elements and multiple potential bases for damages." Peters v. American Income Life Insurance Co., 2002 WL 32140122, (Okla.Civ.App. June 4, 2002) cert. denied May 12, 2003, citing Taylor v. State Farm, 981 P.2d 1253, 1257-58 (Okla. 1999). The first element of proving a bad faith cause of action requires Plaintiff to prove he or she has a valid claim. See Christian v. American Home Assurance Co., 577 P.2d 899, 903 (Okla. 1978) ("we find the obligation of an insurer to its insured upon proper presentation of a valid claim under a disability policy, is not limited to the payment of money only"). "Plaintiff obviously must establish that a binding agreement has been breached to invoke bad faith." Expertise Inc. v. Aetna Finance Co., 810 F.2d 968, 972 (10th Cir. 1987). `A determination of liability under the contract is a prerequisite to recovery for bad faith breach of an insurance contract."Davis v. GHS Health, 22 P.3d 1204, 1210 (Okla. 2001). Plaintiff must prove "[The insurer] was required under the insurance policy to pay [Plaintiff's] claim." Oklahoma Uniform Jury Instructions, Bad Faith — First Party Insurance — Failure to Pay Claim of Insured, 22.2. See Court's Order at 20-21).
This Court found Plaintiff failed to prove a binding agreement had been breached due to Plaintiff's failure to comply with at least four (4) separate clauses of the contract.
A. Plaintiff Failed to Submit a Proof of Loss or Supporting Medical Evidence to Support His Claim for Injury to His Hip at Least 60 Days Prior to Plaintiff Pursuing any Legal Action Against Defendants as Required by the Policy
In the instant case, Plaintiff claimed he fractured his foot and injured his hip in an occupational accident on March 31, 2001 (Complaint at 4). Plaintiff further states in the Complaint that initially he received his disability and medical benefits [in regard to his foot injury], but when he "sought treatment for his hip, [ ] the defendants [ ] refused to pay for the treatment." (Complaint at 4).
Essentially, the instant case was pled as a breach of contract/bad faith cause of action due to Defendants' failure to pay medical and disability payments for treatment to Plaintiff's hip. The irony of this case is that the emergency room physician, Dr. Larry Redden, who examined Plaintiff immediately following his occupational injury ordered x-rays of the Plaintiff's lumbar spine and pelvic area. These x-rays did not reveal any injury to Plaintiff in those areas based on the occupational accident. Dr. Redden's written diagnosis was that of a fractured calcaneous, and his written diagnosis did not ultimately diagnose a fracture or injury to the back, hip, or pelvis. In fact, the records indicate Dr. Redden simply noted that during his physical exam of the pelvic area, there was "mild pain on compression." Dr. Redden did not diagnose any permanent or long-term injury. See Court's Order Undisputed Facts, at 4.
The podiatrist who treated Plaintiff's foot injury, Dr. William Jones, released Plaintiff on November 6, 2001. Plaintiff's claim was denied by Defendant on November 13, 2001. Although Plaintiff admits Defendant told him he could see an orthopedist to substantiate his claim of an injured hip, Plaintiff never did so. If there were continuing problems with his hip, Plaintiff had almost 8 months to have those problems addressed prior to Defendant's denial of his claim.
Even more ironic, as addressed later in this Order, is the fact Plaintiff had an intervening automobile accident on August 8, 2001 — after his occupational accident — but before he was released by Dr. Jones on November 6, 2001. Dr. Jones did not note, or chart any complaints by Plaintiff for back, or hip problems until October 2001. Plaintiff claims although he was released from care for his foot by Dr. Jones, Dr. Jones also referred him to an orthopedist for treatment. Plaintiff claims Defendant's denial, in light of the referral, amounted to bad faith despite the fact there was no medical documentation of a hip injury or a proof of loss, and despite the fact Plaintiff admitted Dr. Jones was not qualified to treat any part of the body other than the foot (Plaintiff's Motion for Partial Summary Judgment at 4, Undisputed Facts Nos. 18 and 20).
Finally, as discussed later in this Order, the most troubling factual scenario, to be determined by the jury in this case, is the effect of Plaintiff's representation throughout this litigation that his hip was injured in the occupational accident (despite the lack of medical documentation) and Plaintiff's simultaneous representation to State Farm the same hip was injured in the August 8, 2001 automobile accident. The heart of the counterclaim for fraud will be exposed during the trial of this matter when Counter-Defendant will be forced to choose which representation is true. The Counter-Defendant cannot have it both ways.
Initially, when confronted with the inconsistent positions in discovery, Plaintiff denied the injuries in the automobile accident were related to the same part of the body (the hip) that was injured in the occupational accident. See, Court's Order ft.nt.4, pp. 24-25. When pressed, however, and after discovery in this case revealed Dr. Eaton's diagnosis of a lumbar strain and further revealed the chiropractic records of Dr. Mitchell which state Plaintiff had severe pain in his neck and shoulders; "back pain on both sides with it radiating into his hip," Plaintiff changed his position and said the automobile accident had indeed "aggravated his [occupational] injury."
However, Plaintiff had also represented to State Farm that his hip injury was due to the August 8, 2001 automobile accident. Further, Plaintiff did not even mention the occupational accident in the "history of present pain section" of the intake form when he was admitted to the Claremore Regional Hospital emergency room on August 8, 2001. Dr. Eaton testified that the intake form required information on medical history, and the only thing Plaintiff described was back surgery in 1992. Plaintiff received a settlement check from State Farm for injury to the same hip he claims was injured in the occupational accident. Indeed, the record reveals Plaintiff never disclosed the prior occupational accident to State Farm.
Further, this Court found that not only had Plaintiff not provided the proper documentation required under the contract, he cannot present any proof of loss or supporting medical evidence to establish a continuing and permanent occupational disability to his hip as required under the policy.(Court's Order at 2-15, 20-24). Finally, this Court found Plaintiff's contention that he could not get medical care in order to submit a proof of loss was unfounded in light of the fact Plaintiff was able to and did in fact obtain medical care for his back and hip from Claremore Regional Hospital on August 10, 2001 and from Dr. Mitchell August 24, 2001 through November 23, 2001. (Court's Order at 23-24).
Therefore, the undisputed record revealed Plaintiff never submitted a claim form, any medical bill, expense, or invoice to Mustang indicating he had or has any injury other than a fracture to the right heel. (Court's Order at 20-24). The Court's holding that there was no breach of contract due to Plaintiff's failure to provide a proof of loss or supporting medical evidence at least 60 days prior to Plaintiff pursuing any legal action is supported by the record.
B. Recovery Under the Policy Required Disability Due to an Occupational Accident
This Court also found, based on the undisputed record, that there was no evidence the alleged hip injury of which Plaintiff complained wasa result of the occupational accident. To the contrary, as stated supra at pages 6-8, and in the Court's Order, pages 24-25, Plaintiff and Plaintiff's counsel have affirmatively represented to this court, opposing counsel, and State Farm Insurance Company that Plaintiff's hip injury was due to an August 8, 2001 automobile accident.
Plaintiffs unequivocal position during the discovery phases of this litigation was that the automobile accident for which he obtained the State Farm Settlement "had nothing to do with the occupational accident for which [he is] making the claim against the Defendant." Plaintiff strenuously opposed discovery in this regard as evidenced by several pleadings wrought with similar inconsistent statements:
"The documents requested in the Subpoena are not relevant and not reasonably calculated to lead to the discovery of admissible evidence as a matter of Oklahoma law, because the documents relate to different parts of the body." Objection of J.Todd Willhoite to Subpoena in a Civil Case, at p. 2 (filed March 17, 2003)( Signed by Plaintiffs attorney, J. Todd Willhoite). Mr. Willhoite admitted in his deposition that he did not advise State Farm of Plaintiffs alleged workplace injury, and when pressed, could only state there were no "direct lies" in the demand letter to State Farm.
"It is outrageous for these Defendants to claim that chiropractic treatment for injuries to different areas of the body are relevant when the Defendants . . ." Plaintiffs Response and Objection to Defendants' Motion to Compel Attorney J. Todd Willhoite to Produce Wrongfully Documents in Response to Subpoena and for Sanctions Under Rule 11, at p. 17 (filed April 4, 2003)( Signed by Plaintiffs attorneys in the instant case).
"I never told any officer, director, or employee of the Defendant or of Mustang Claims Service about the August 10, 2001 visit to Claremore Regional Hospital in that it was treatment for an accident which was clearly not an occupational accident, was not treatment for the occupational accident of March, 2001, was not one for which I was making claim against Defendants, and that it had nothing to do with the occupational accident for which I was making claim against the Defendants which preceded my auto accident by some four months. Plaintiffs Response to Defendant National Reinsurance Corporation's First Set of Request to Admit, Response to Request No. 8 (served April 14, 2003)( Signed by Plaintiffs attorneys in the instant case and verified by Plaintiff).
[M]y accident of August 8, 2001, did not involve injuries for which I was making claims against these Defendants arising from the occupational accident of March 31, 2001." Plaintiffs Response to Defendant National Reinsurance Corporation's First Set of Requests to Admit, Response to Request No. 40 (served April 14, 2003)( Signed by Plaintiffs attorneys in the instant matter and verified by Plaintiff). Court's Order, ft.nt.4, pp. 24-25.
The Claremore Hospital emergency room records and those of Dr. Francis Eaton reflect that Plaintiff was diagnosed with a lumbar and cervical strain due to the August 8, 2001 accident. Dr. Eaton testified Plaintiff failed to note the occupational accident at all, but instead indicated any injury to his hip was due to the August 8, 2001 automobile accident.
Further, Plaintiff's counsel, Todd Willhoite, wrote at least 2 letters to State Farm on December 7, 2001, and February 11, 2002, unequivocally stating Plaintiff's hip injury was due to the August 8, 2001 automobile accident. Therefore, this Court found Plaintiff has failed to prove any alleged hip injury was due to the occupational accident.
In the Motion to Reconsider, Plaintiff again argues the records and testimony of Dr. Eaton establish the August 8, 2001 accident is irrelevant and involved different parts of the body. Plaintiff ignores his own "later" admissions — that the August 8, 2001 accident aggravated his hip and low back and Dr. Eaton's explicit testimony wherein he diagnoses a lumbar strain.
Plaintiff's analysis also ignores the fact that on December 7, 2001, his attorney forwarded to State Farm the records from Claremore Regional Hospital and represented that "as a direct result of the impact of the collision, Marvin Garrett suffered injuries to his neck,lumbar back, right hip, and experienced headaches." Further, attached were the medical records of Dr. Mitchell which state Marvin had severe pain in his neck and shoulders; back pain on both sides with it radiating into his hip.
Plaintiff cannot argue on the one hand that he told Dr. Eaton "everything" about his injuries and that the automobile accident "aggravated his hip and back injury," but at the same time accuse this Court of weighing evidence and improperly reaching conclusions inconsistent with Dr. Eaton's subsequent affidavit but wholly consistent with Plaintiff's own story.
This Court did not overlook Dr. Eaton's declaration, but considered it to the extent it was a belated, ex parte affidavit, not subject to cross examination by Defendants, a basic tenet of due process. The declaration did not change Dr. Eaton's testimony in regard to any material fact, but did directly contradict Dr. Eaton's previous sworn testimony and impeached Plaintiffs own sworn testimony.
It is bizarre for Plaintiff to use the inconsistencies in his story to State Farm as opposed to his story to Fairfield as a sword to accuse this Court of reaching inconsistent conclusions. (Reconsideration Motion at 19-20). Plaintiff made the admission to State Farm that his hip and back injuries were the direct result of the August 2001 automobile accident — and Plaintiff must live with that admission. Simply because Dr. Eaton diagnosed Plaintiff with nothing more than cervical and lumbar strains as a result of the automobile accident, checked his hips and did not uncover any problem whatsoever, and gave a prognosis that Plaintiff could resume work and other normal activities within a week or two, does not change the fact that Plaintiff must also live with these facts. If Plaintiff proves the Dr. Eaton version is correct, then he lied to both State Farm and Fairfield. If he proves the State Farm representation is correct, then he lied to Fairfield. This is Plaintiff's dilemma, not the Court's.
C. Plaintiff Must Have Been Under the Care of a Physician
The undisputed record reveals Plaintiff was released from the care of Dr. Jones on November 6, 2001. Plaintiff now asserts Dr. Jones also diagnosed him with an "ankle" injury in November 2001. This argument appears for the first time in Plaintiff's Motion to Reconsider. Plaintiff takes this position based on the "demonstrably false representation" that Dr. Jones referred Plaintiff to Dr. Luessenhop for "hip and ankle" pain based on his November 26, 2001, letter to Mustang, "when Plaintiff well knows that Dr. Jones testified the word "ankle" in that document was an "error" and should have stated "knee" (as had been stated in Dr. Jones' prior discharge note to Mustang sent on November 6, 2001)." Defendant's Response Brief at 1.
Plaintiff also claims "disbelief" at the Court's statement that "Plaintiff filed the instant case based upon a single alleged physical injury — to his `hip'; the Complaint makes no mention of his foot." (Reconsideration Motion at 23 (citing Order at p. 8). This "disbelief" is wholly artificial. The portion of the Complaint cited by Plaintiff leads to no other conclusion than Plaintiff was denied treatment "for his hip" when he "sought treatment for his hip." See, supra at 5.
Plaintiff's final attempt to "dress up his case" must fail. This Court is not required to address ever-changing arguments based on Plaintiff's efforts to save his case. "The court will not construct arguments or theories for the [litigants] in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). As the court so aptly stated in Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 411 (W.D.Okla. 1990), "Plaintiff had the opportunity of an initial brief and a reply. Why they did not include this issue is not the Court's concern, but the Court will not "re-open" the matter now, much as an appellate court will not consider an argument not made at the trial level. Plaintiffs have had more than one shot at this issue, and the Court will not entertain continual new arguments and briefing."
Plaintiff also contends this Court improperly weighed the credibility of witnesses and drew improper inferences. Once again, Plaintiff has characterized undisputed facts as "Court Conclusions." In regard to Ms. Ahlfinger's testimony, this Court cited not only Ms. Ahlfinger's version of the facts, but also Plaintiff's testimony, including his admission that Ms. Ahlfinger authorized him to see an orthopedic physician but that he did not. Plaintiff's deposition reveals the following:
Q. If you could take a look at — there is a letter in the packet, sir, another document or two back, January 23, 2002, bearing the caption Mustang Claim Service, addressed to you. And in the second paragraph it states — the second sentence states: "On 6/5/01 you mentioned hip pain, and I advised you to see an orthopedic specialist if necessary." It's true that Diane Ahlfinger, on or about June 5, 2001, told you could see an orthopedic specialist if necessary, correct, sir?
A. I — I don't remember when she said I could see an orthopedic, but she said I could.D. Plaintiff Must Have Been Unable to Work to Collect Benefits Under the Policy
Finally, the Court found Plaintiff had not demonstrated, as required by the policy, that he either was, unable to work. To the contrary, the undisputed evidence clearly reflects, as stated supra, and in the Court's Order at 7-8, Dr. Jones released Plaintiff from his care November 6, 2001, on a form he sent to Mustang titled "Work Release." Dr. Jones made no indication on the Work Release, or any other form, of any continuing injury to Plaintiff's foot, or that he could do anything further to treat Plaintiff's foot, or that he was referring Plaintiff to someone else for further treatment to the foot. Dr. Jones has not treated Plaintiff since November 6, 2001.
Because the disability policy requires Plaintiff be unable to work, it was reasonable for the adjustor to terminate benefits when Plaintiff was released to work. By all accounts, Plaintiff was able to work as of November 6, 2001 when he was released by Dr. Jones.
Further, as early as August 10, 2001, the records from Claremore emergency room following the August 8, 2001 traffic accident, and Dr. Eaton's records from that date merely diagnose a cervical and lumbar strain due to the August 8, 2001 accident, and predict Plaintiff "should be able to resume normal activities within a week or two." Plaintiff did not make demand for continued benefits from Mustang until November 2001.
Dr. Hayes confirmed that Plaintiff is not presently suffering from any significant pathology or back problems that would require either medical treatment or surgery. In this regard Dr. Hayes testified:
A. Does he have a back problem that needs medical treatment? No, he does not. Has he had surgery? Yes. Does he need any more surgery? No. Does he need to see a physician for his complaints? No.
In short, there was no evidence in the record supporting Plaintiff's claim that he was under a physician's care after November 6, 2001, when he was released by Dr. Jones, or that he should have been under a physician's care after that date. The Court found Defendant had paid all medical and disability benefits Plaintiff was entitled to receive.
II. Mustang had a Reasonable Basis to Dispute Plaintiff's Claim for Additional Benefits
The second basis for relief afforded Defendants was based on the Court's finding the actions of the insurer were reasonable and justified. The Court specifically found it was faced with an opposite factual scenario as that in Christian, wherein it was the insured who attempted to avoid responsibility and conceal facts. The adjustor in this case based her decision on three documented factors: (1) Plaintiff's Initial Claim Report stated he had only an injury to his heel and right foot; (2) if there were continuing problems with his knee or hip, Plaintiff had months to have those problems addressed, and (3) reliance on Dr. Jones's Work Release.
It was undisputed Plaintiff completed the Claim Form request for information by noting "Rt. Foot" in the box titled "Part of Body Injured," and "Fracture Heel" in the box titled "Nature of Injury." It was also undisputed Plaintiff did not identify any other injury or injured part of the body on the Claim Form, even though he admits he could have. The Court found it was reasonable for the adjustor to have relied on Plaintiff's own designation of his injury.
Further, Plaintiff admitted the adjustor told him he could see an orthopedic physician to substantiate his claim of a hip injury, but he did not do so. Finally, Dr. Jones released Plaintiff from his care November 6, 2001, on a form he sent to Mustang titled "Work Release." As noted supra, Dr. Jones made no indication on the Work Release, or any other form, of any continuing injury to Plaintiff's foot, or that he could do anything further to treat Plaintiff's foot, or that he was referring Plaintiff to someone else for further treatment to the foot.
Because the disability policy requires Plaintiff be unable to work, it was reasonable for the adjustor to terminate benefits when Plaintiff was released to work. In short, there was no evidence in the record supporting Plaintiff's claim that he was under a physician's care after November 6, 2001, when he was released by Dr. Jones, or that he should have been under a physician's care after that date. Defendant had paid all medical and disability benefits Plaintiff was entitled to receive in connection with the injury to his foot, which included over $15,000 in payments. Accordingly, the court found there was no bad faith on the part of the insurer because the Defendant's actions were reasonable and justified based on the relevant undisputed record before the court.
III. Plaintiff's Failure to Provide Information Critical to Defendant's Evaluation of the Claim Made it Entirely Impossible for Defendant to Discharge its Obligations Under the Contract, and Serves as an Absolute Defense Against Liability
The third basis for relief was based on Oklahoma law holding insurers are entitled to litigate disputes with their insured if there is a `legitimate dispute' as to coverage or the amount of the claim.Timberlake Construction Co. v. U.S. Fidelity and Guaranty Co., 71 F.3d 335, 343 (10th Cir. 1995). Plaintiff argued, however, Defendant was not entitled to this defense because Defendant was not aware of the dispute "at the time the performance was requested," because Defendant made an inadequate investigation into Plaintiff's claim. See Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105, 1109 (Okla. 1992).
The Court found Plaintiff's position was inconsistent with Oklahoma law and would establish an unrecognized (and unconscionable) public policy — allowing an insured to actively conceal material facts from his insurer "at the time performance is requested" and use that concealment as a sword in a subsequent bad faith lawsuit. Even in cases cited by Plaintiff, such a position had been implicitly, if not overtly, rejected. See Timberlake, 71 F.3d at 345, 347 ("insured must make a showing that material facts were overlooked or that a more thorough investigation would have produced relevant information" and finding insurer's "further investigation would have produced nothing of consequence"); Roberts v. State Farm Mut. Auto Ins. Co., No. 02-7052, 2003 WL 1559155, at *3-4 (10th Cir. (Okla.) March 26, 2003) (affirming grant of partial summary judgment for insurer and rejecting insured's argument that insurer's failure to seek additional information concerning the insured's claim, including a narrative report, constituted bad faith, where medical information received by insurer "gave absolutely no indication that [the insured] was at risk of developing any of the problems his experts now claim are likely to occur"); Willis v. Midland Risk Ins. Co., 42 F.3d 607, 613 (10th Cir. 1994) (reasonableness must be considered "in light of what the insurer knew or should have known").
Therefore, the Court held Plaintiff must prove that material facts were overlooked by Defendant, and that a more thorough investigation would have produced relevant information. Court's Order, pages 31-36. A more thorough investigation in the instant case would not have revealed Plaintiff was disabled or entitled to medical benefits. As noted in the Court's Order at 33-34, a more thorough investigation would have revealed the following:
* At the time performance was requested from Mustang in November 2001 — Plaintiff was actively pursuing another lawsuit in which he was claiming damages for the same injuries he is alleging in this case.
* Plaintiff never informed State Farm either that his injuries were merely an aggravation of injuries he had from the occupational accident, or that he was already totally and permanently disabled (as he now contends) thus eliminating any possible impact from the automobile accident on his occupation.
* In regard to Mustang, Plaintiff first concealed the August 8, 2001, automobile accident, resulting treatment (including the Claremore emergency room records and prognosis), and State Farm recovery, even though in his January 10, 2002 "desperation letter" Plaintiff represented to Mustang that he was unable to get any medical care.
Plaintiff also said nothing in his desperation letter about the bowling league, or that he in fact had received medical evaluations and treatment from the Claremore Regional Hospital emergency room on August 10, 2001, or from Dr. Mitchell from August 24, 2001 through November 23, 2001. In fact, the very evening he wrote the desperation letter, Plaintiff bowled three full games. Nor did Plaintiff tell Mustang that just the day before, January 9, 2002, he had signed a medical authorization for "my [Marvin Garrett's] lawyer: Walter D. Haskins." Nor did Plaintiff tell Mustang that he was being represented by Todd Willhoite, and was pursuing an insurance claim against State Farm involving injuries he represented to State Farm as being the "direct result" of the rear-end collision concerning his "neck, lower back, and right hip."
* Once asked for those records in discovery in this case, Plaintiff and counsel refused and represented to Defendants and the Court that these records were not relevant because they "relate to different parts of the body." Plaintiff then directly contradicted those representations by testifying that the injuries in question concerning the State Farm claim were in fact directly related as an "aggravation" or "agitation" of injuries arising from the occupational accident of March 31, 2001.
* Finally, Plaintiff told neither State Farm nor Mustang that he was able to regularly bowl (right-handed with a 14-15 pound ball) (thus directly impacting his lower back and right hip) with consistently high scores at the same time he was pursuing two separate insurance claims with each of the respective companies for injuries to Plaintiff's right hip.
The Court found Plaintiff has simultaneously pursued two separate insurance claims against two separate insurers based on mutually inconsistent representations and not telling one about the other. Plaintiff thereby violated his obligations to those insurers, failed to comply with Mustang's April 9, 2001 request for information, and violated Oklahoma law, which requires that he provide truthful and complete information in connection with those two insurance claims, and information that was not deceptive or misleading.
Contrary to Plaintiff's contentions, Oklahoma law, the "Warning" in the Fairfield Policy, and the State Farm release he signed establish an affirmative obligation on his part to be truthful, and not misleading or deceptive in connection with his respective and concurrent insurance claims to State Farm and Mustang. See First Bank or Turley v. Fid. Deposit Ins. Co. of Maryland, 928 P.2d 298, 308-09 (Okla. 1996) (recognizing that an insured's failure to provide information critical to the insurer's consideration of the claim may "serve as a defense to defeat liability or . . . to reduce recovery.");United Servs. Auto Ass'n v. McCants, 944 P.2d 298, 301 (Okla. 1997) (finding that "in Oklahoma it is a criminal offense to present a fraudulent claim to an insurer") (citing Okla. Stat. Ann. tit. 21, § 1662). The Court found Plaintiff's failure to provide information critical to Defendant's evaluation of his claim made it "entirely impossible for [Defendant] to discharge its duty under the contract, and served as an absolute defense against liability (i.e., as in toto defense)." Turley, 928 P.2d at 308.
Therefore, this Court finds Plaintiff's Motion to Reconsider not only raises issues previously considered and rejected by the Court, but also raises issues demonstrated by the record to be false, and known to be false by Plaintiff when the motion was filed. Accordingly, the Motion to Reconsider is denied.
It is further ordered, the issue of sanctions in regard to Plaintiff's litigation misconduct pursuant to Federal Rules of Civil Procedure 11 and 37, as well as 28 U.S.C. § 1927 will be deferred until the conclusion of this matter.
IT IS SO ORDERED.