Opinion
No. CIV. S-03-68 LKK/GGH.
November 6, 2006
ORDER
Plaintiff Marcia Starr-Gordon alleges that she suffered an injury to her right shoulder and lower back that forced her to stop working as a dental hygienist. Defendant Massachusetts Mutual Life Insurance Company ("MassMutual") terminated her claim for disability benefits. In response, plaintiff brought a claim alleging eight causes of action: (1) violation of the California Unfair Competition law, (2) breach of contract, (3) breach of the implied covenant of good faith and fair dealing (bad faith), (4) intentional misrepresentation, (5) negligent misrepresentation, (6) intentional infliction of emotional distress, (7) negligent infliction of emotional distress and (8) declaratory relief. MassMutual now moves for summary judgment with respect to counts one through seven of plaintiff's complaint. The court resolves the matter based on the parties' papers and after oral argument.
I. Facts
The facts are undisputed unless otherwise noted.
Defendant issued a disability insurance policy to plaintiff in 1991. The policy provided plaintiff with monthly income and waiver of premium benefits if plaintiff became disabled. A "disability" was defined in the policy as:
an incapacity of the insured which 1) is due to injury or sickness; and 2) begins while this Policy is in force, and 3) requires care by or at the discretion of a legally qualified physician, unless we are furnished with proof, satisfactory to us, that future care would be of no use; and 4) reduces the insured's ability to work and 5) causes loss of earned income.
Decl. of Robert Pohls ("Pohls Decl.") ¶ 2, Ex. 2.
A. Plaintiff's Alleged Disability
In early December of 2000, plaintiff notified defendant of her disability claim. She claimed that, due to the repetitive nature of her job, she had injured her right shoulder and lower back. At the time, plaintiff was working part-time as a dental hygienist in her husband's dental office. Defendant then sent plaintiff the necessary forms required for processing her claim, including an Occupational Description, a Disability Income Claimant's Statement (the "Statement"), and an Attending Physician Statement ("APS"), which was to be completed by her doctors.
In January of 2001, plaintiff submitted the completed Statement and the Occupational Description. She claimed that she was partially disabled beginning on January 7, 2000, when she reduced her work schedule from three to two days a week, and that she became totally disabled on December 28, 2000, when she stopped working altogether. In her income statement, plaintiff complained that she was unable to lift her right arm for "any length of time." Pohls Decl. ¶ 5, Ex. 4.
In the above-referenced documents, plaintiff specified that her duties at work included: cleaning teeth, scaling, probing, polishing, x-rays, and root planing. She indicated that her duties also required standing, reaching, walking, pushing, balancing, sitting, bending, and lifting ten pounds or less. She described her daily activities since the alleged disability as "[h]ousehold chores not involving right arm and back." Id.
According to the APS submitted by plaintiff's chiropractor, Dr. Patterson, plaintiff suffered from "thoracic subluxation and degenerative shoulder disease." Pohls Decl. ¶ 6, Ex. 5. Dr. Patterson reported that plaintiff's symptoms first appeared on January 22, 1999. He indicated that plaintiff was unable to work from January 7, 2001, and that she had "difficulty lifting her right arm with pain, especially after repetitive motions that preclude[d] right upper extremity movement." Id. Moreover, he determined that the condition was likely to be permanent. Id. In a letter dated March 14, 2001, Dr. Patterson's office sent defendant a letter indicating that there was a typographical error in his original APS and that plaintiff's disability began in January 2000, rather than January 2001, as previously indicated.
Dr. Hughes, plaintiff's treating orthopedist, also submitted an APS to defendant on January 5, 2001. He concluded that plaintiff was able to work with limitations, but was permanently disabled as a dental hygienist. Id. Subsequently, treatment notes received from Dr. Hughes showed that on January 24, 2001, plaintiff "had what appears to be an optimistic result from the steroid injection on her right shoulder." Pohls Decl. ¶ 10, Ex. 9. These notes stated that "[t]he pain in [plaintiff's] shoulder is basically minimal particularly after the steroid injection . . . Back pain is minimal. She stopped taking Celebrex and will be taking Advil." Id.
B. Defendant's Investigation
1. Pre-Termination Activities
On January 30, 2001, defendant wrote plaintiff informing her of the need for additional information since plaintiff sought coverage for partial disability dating back one year prior to the date she submitted her claim. On March 8, 2001, defendant informed plaintiff that, although Dr. Patterson certified plaintiff's disability as of January 2001, additional information was necessary to substantiate her claim for partial disability beginning in January 2000.
At this time, Dr. Patterson's office had not yet sent defendant the letter correcting the start date of plaintiff's partial disability from January 2001 to January 2000. This letter was sent March 14, 2001, six days later.
In March 2001, Dr. Hacker, a chiropractor and member of MassMutual's medical and vocational department, reviewed plaintiff's claim file and concluded that although "Ms. Starr may have incurred some restrictions and limitations on her right shoulder/lower back activity beginning about December 18, 2000," he needed additional information from plaintiff's doctors to better assess plaintiff's injuries. Pohls Decl. ¶ 12, Ex. 11. Dr. Hacker's assessment pointed out that Dr. Patterson had seen plaintiff 55 times between 1999 and 2001, but that none of Dr. Patterson's treatment notes were included in the materials Dr. Hacker had for review.
Defendant subsequently requested treatment notes from Dr. Patterson relating to the period that plaintiff claimed partial disability. Defendant was told that Dr. Patterson did not have treatment notes but that he would provide a narrative, which defendant requested. Dr. Patterson then sent defendant a one-page medical narrative, which plaintiff concedes did not provide specific information regarding his treatment during plaintiff's period of partial disability.
Shortly thereafter, Darci Stevens, defendant's disability claims representative, authorized surveillance of plaintiff to determine the extent of her injuries. However, by letter dated July 10, 2001, defendant accepted plaintiff's disability claim under a reservation of rights, retroactive to December 18, 2000. The letter stated, "you are claiming total disability but it appears as though you may have some capacity to work. . . . [W]e are continuing to investigate your claim." Pohls Decl. ¶ 16, Ex. 15. With regard to plaintiff's alleged partial disability, defendant stated that it was denying the claim because it was unable to verify the condition. Id.
Plaintiff's file was then transferred to Paul Montanari for active claim management. Montanari requested that plaintiff submit to a functional capacity evaluation ("FCE"), which would measure plaintiff's physical capacity in light of her claimed restrictions and limitations. Defendant scheduled an FCE for plaintiff, which was to take place in September 2001. However, plaintiff indicated that she would not submit to an examination unless it was performed by a medical doctor, rather than a physical therapist.
Meanwhile, the surveillance commissioned by defendant captured plaintiff engaging in the following activities:
• sweeping her driveway while using her right arm to sweep and her left arm to hold a dustbin
• jogging up her sidewalk after emptying a dustbin in the lot next door
• reaching above her head with her right hand to lift an ice chest off the top of a refrigerator and bending to place it on the floor
• lifting an ice chest to carry it across her garage
• jumping over her garage door sensor
• running down her driveway
• carrying groceries with both arms, picking them up out of her shopping cart and loading them in and out of her car
• holding a wireless phone between her head and neck, while using both arms to unload groceries from her car
• installing a car seat in her car, bending over to pick up a child, and lifting the child into her car
• strapping the child into a car seat using both arms, while twisting and bending as necessary to talk to a nearby neighbor, and
• carrying the child on her left hip
Montanari Dep., Pohls Decl. ¶ 17, Ex. 16.
On October 8, 2001, Montanari submitted the surveillance reports to Dr. Feingold, a physiatrist hired by defendant as an outside expert consultant. Based on these reports, Dr. Feingold concluded, "The surveillance reviewed fails to document any of the impairments that the insured is reported to have. Overall the visual impression of the patient is of a healthy and physically active woman with no particular limitations in the upper extremity abilities." Pohls Decl. ¶ 20, Ex. 19. Plaintiff argues that the report is misleading, in that it assumes facts not in evidence, and that it "speaks for itself," but offers no further explanation. Pl.'s Response to Def.'s SUF ¶ 38.
2. Post-Termination Activities
On December 14, 2001, defendant sent a letter notifying plaintiff that she would no longer be receiving disability benefits. The letter stated that her policy was being placed back on premium paying status, because defendants' review of plaintiff's activities and her medical records did not support the claimed restrictions and limitations. Plaintiff's counsel notified defendant that plaintiff wished to appeal defendant's decision.
In a letter dated December 28, 2001, defendant communicated to plaintiff's counsel that it would "look forward to receiving any information you may submit that will help us better understand her claimed limitations and restrictions." Pohls Decl. ¶ 27, Ex. 26. Defendant did not receive additional records from plaintiff until October 11, 2002. Upon receipt of additional documents, defendant asked Dr. Feingold to review plaintiff's updated claim file. Dr. Feingold concluded that:
The medical records to date do not show any change in the patient's medical condition. . . . The types of activities that were described as causing her difficulty at work are similar in part to activities she was seen doing in day-to-day activities of daily living, based on her surveillance. It is not clear whether she does or does not have pain in her right shoulder, but it does appear she is not obtaining active medical care for this, nor is she particularly restricted in the daily activities, as documented on her surveillance.
Pohls Decl. ¶ 23, Ex. 22. Plaintiff, however, notes that these additional documents did not include the 2002 medical records from Dr. Hughes and Dr. Patterson. Feingold Tr. at 155:4-12, Aff. of Dean Burnick ("Burnick Aff.") ¶ 7, Ex. 7.
In December 2001, plaintiff claimed that she once again began to experience intense feelings of anxiety, panic, anger, mood swings, helplessness, and depression. Her symptoms increased steadily over time until she found it necessary, in March 2002, to return to her treating psychiatrist. Since that time, plaintiff claims that she has been taking daily dosages of Celexa, an antidepressant. Despite being on notice about plaintiff's psychological condition, Montanari testified that he did not consider the impact that surveillance actions might have on plaintiff. Montanari Tr. at 302:10-303:9, Burnick Aff. ¶ 3, Ex. B.
Finally, on December 12, 2002, plaintiff filed her complaint, giving rise to the present action. Since that time, defendant has obtained an independent medical examination ("IME") of plaintiff. In April 2006, Dr. Schiff conducted a physical examination, which revealed that "there are subjective complaints without objective foundation" with regard to her neck and shoulder, and that her back pain would not prevent her from performing non-heavy labor. Schiff Rep., Pohls Decl. 34, Ex. 33. In May 2006, Dr. O'Brien, a psychiatrist, also examined plaintiff and reported that individuals with plaintiff's profile pattern have an interest in portraying themselves as physically disabled.
II. STANDARDS
Summary adjudication, or partial summary judgment "upon all or any part of a claim," is appropriate where there is no genuine issue of material fact as to that portion of the claim. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 (9th Cir. 1981) ("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim") (citations omitted); Playboy Enters., Inc. v. Welles, Inc., 78 F. Supp. 2d 1066, 1073 (S.D. Cal. 1999), aff'd in part, rev'd in part, on other grounds, 279 F.3d 796 (9th Cir. 2002); E.D. Local Rule 56-260(f). Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file." Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853.
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; See also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see also Cline v. Industrial Maintenance Engineering Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also International Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); See also Headwaters Forest Defense v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
III. ANALYSIS
Defendant has moved for summary judgment with respect to the following claims: (1) violation of the California Unfair Competition Law, (2) breach of contract, (3) breach of the implied covenant of good faith and fair dealing (bad faith), (4) intentional misrepresentation, (5) negligent misrepresentation, (6) intentional infliction of emotional distress, (7) negligent infliction of emotional distress, and (8) punitive damages.
A. California Unfair Competition Law
MassMutual first moves for summary judgment with respect to plaintiff's representative claims under the California Unfair Competition Law ("UCL"). Cal. Bus. and Profs. Code § 17200 et seq. Originally, the UCL permitted plaintiffs to bring causes of action on behalf of the general public without first seeking class certification. In November 2004, however, California voters passed Proposition 64, which requires private parties to obtain class certification prior to bringing a representative action. See Cal. Bus. Prof. Code § 17203; see also Cal. Code Civ. P. § 382 (setting forth the requirements for class action certification).
The court continued MassMutual's initial motion for summary judgment, as this case was pending at the time of Proposition 64's passage, and the California Supreme Court had yet to rule on cases addressing the applicability of Proposition 64 to cases pending during its passage. Since then, the California Supreme Court has decided that Proposition 64 indeed applies to cases pending at the time of its passage. See California for Disability Rights v. Mervyn's LLC, 39 Cal. 4th 223 (2006);Branick v. Downey, Savings and Loan Ass'n, 39 Cal. 4th 235 (2006).
In plaintiff's opposition papers, plaintiff has stated her intent to abandon any representative claims under the UCL, and there is no dispute that plaintiff has not complied with class certification requirements. Nonetheless, as she correctly notes, she is still entitled to pursue her individual action under the UCL. See Cal. Bus. Prof. Code § 17204 ("Actions for relief pursuant to this chapter shall be prosecuted . . . by any person who has suffered injury in fact and has lost money or property as a result of such unfair competition."). Defendant's attempt in its reply brief to address whether MassMutual has engaged in unfair business practices with regard to plaintiff's individual action comes too late.
Pursuant to Federal Rule of Evidence 201, and in response to plaintiff's request, the court takes judicial notice of all papers on file in this case.
MassMutual also contends that disgorgement of profits, which plaintiff seeks in her complaint, is not an available remedy under the UCL. Compl. ¶ 95 ("Mass Mutual is liable to provide restitution to the Plaintiff/insured and is required under law to effect a disgorgement of all profits made from its illicit business practices . . ."). Although the UCL affords a broad range of remedies, non-restitutionary disgorgement of profits is not among them. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003). Typically, when a defendant is ordered to disgorge profits, it must surrender all money obtained through the illegal business practice, including money not obtained from plaintiffs. The UCL does not permit this. Rather, disgorgement is permissible "only to the extent that it constitutes restitution." Id. at 1145. Tellingly, plaintiff does not respond to MassMutual's on this point.
Because plaintiff has abandoned her representative UCL claim, and there is no genuine dispute that non-restitutionary disgorgement is not an available remedy under the UCL, summary judgment is proper as to the claim for disgorgement. Nonetheless, of course, plaintiff may pursue her individual action to the extent she seeks disgorgement of money defendant improperly obtained from her.
B. Breach of Contract
Defendant next argues that plaintiff's claim for breach of contract should fail as a matter of law because she has failed to demonstrate coverage for her claim. The issue of coverage is a question of law that the court may adjudicate on summary judgment. Waller v. Truck Ins. Exchange Co., 11 Cal. 4th 1, 18 (1995). For the reasons set forth below, the court denies defendant's motion on this claim.
As noted earlier, the policy defines disability as "an incapacity of the insured which "(1) is due to injury or sickness; and (2) begins while this policy is in force; and (3) requires care by or at the direction of a legally qualified physician . . . and (4) reduces the insured's ability to work; and (5) causes a loss of earned income." Pohls Decl. ¶ 2, Ex. 2. For purposes here, the issue in dispute is the fourth criterion — that is, whether plaintiff's injury reduces her ability to work.
Defendant maintains that California law provides the controlling definition of disability, whereas plaintiff maintains that, based on the plain language of the policy, plaintiff's injury has reduced her ability to work. Defendant places heavy reliance on Erreca v. Western States Life Ins. Co., 19 Cal. 2d 388 (1942). However, contrary to defendant's assertion, the definition of disability in Erreca does not supplant every definition of disability in all insurance policies. Accordingly, the court finds that Erreca inapplicable to the facts of the present case. "The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it."Waller, 11 Cal. 4th at 18; see also Cal. Civ. Code § 1638 (plain meaning controls where language is unambiguous and does not lead to an absurd result). The policy here is unambiguous, and, as MassMutual points out, any policy accepted and approved by the California Insurance Commissioner is conclusively presumed to be unambiguous. Cal. Ins. Code § 10291.5. Accordingly, the plain meaning of the policy determines whether plaintiff is covered.
There is some dispute as to whether plaintiff changed her position on this issue during the course of litigation. Defendant argues that plaintiff initially took the position that California law supplied the definition of disability in her responses to interrogatories. Pl.'s Supp. Responses to Def.'s Second Set of Interrogatories at 11. However, plaintiff's present position — and the one the court addresses — is that the court should examine the plain language of the contract.
Erreca merely stands for the proposition that California courts should interpret the meaning of total/general disability in a practical rather than literal fashion. Prior to Erreca, some courts had held that under "general disability" policies, an insured could only obtain benefits upon proof that the insured was unable to perform the work of any occupation. Id. at 394. This was in contrast to "occupational disability" policies, which provided benefits so long as the insured was unable to perform the work that was engaged in at the time the policy was written.Id. at 393. Erreca tempered the harshness of "general disability" policies by holding that, where an insured is prevented from pursuing other employment in light of his capabilities and station in life (e.g., level of education). Benefits may be obtained even though other employment is theoretically possible.
Where Erreca applies, the plaintiff is required to prove that these other employment options are effectively foreclosed, which Starr-Gordon has not done here. Erreca does not, however, insert this definition of "total disability" into every policy, as defendant maintains. Tellingly, Erreca's recitation of the language typically employed in a general disability clause does not resemble that found in plaintiff's policy. Id. at 393 ("[A] general disability clause defines total disability to mean `whenever the insured is wholly incapacitated from performing any work whatsoever for remuneration or profit.'").
There is no reason why every insurance policy must fit into the categories of either general disability or occupational disability, and defendant has not cited any authority to the contrary. For example, there are also "disability income" policies that focus on whether an injury that reduces an insured's ability to work also causes a loss of earned income. These policies do not generally identify any specific occupation. Aff. of Mary Fuller, ¶¶ 1-5, 7, Ex. A.
Plaintiff has tendered sufficient evidence to prove that, at a minimum, there is a genuine dispute that she experienced a reduced ability to work as a dental hygienist. On this basis alone, defendant's motion for summary judgment with respect to the breach of contract issue must be denied. Under the plain meaning of the policy, if plaintiff has a reduced ability to perform the job that she was engaged in at the time of her injury, she has satisfied the policy requirement of a reduced "ability to work." The court need not go further than this in order to resolve the present dispute.
The court notes that even if there was an ambiguity in the policy, plaintiff would be entitled to coverage so long she could demonstrate that her interpretation of the policy was objectively reasonable. Bank of the West v. Superior Court of Contra Costa County, 2 Cal. 4th 1254, 1264-65 (1992).
Defendant's contention that only the purchase of a "Regular Occupation Rider" would have provided plaintiff with coverage for occupational disability is unavailing. Its existence does not alter the plain meaning of the policy, and the intentions of contracting parties will generally be discerned from only the written provisions of the contract itself. Waller, 11 Cal. 4th at 19. Moreover, the rider appears to provide the insured with a more generous calculation of benefits; it does not suggest that policies without the rider deny coverage altogether when the insured is only disabled from performing one particular job.
As there is a genuine dispute as to whether plaintiff is disabled within the meaning of the policy, defendant's motion for summary judgment as to the breach of contract claim is denied.
Plaintiff asks that the court sua sponte enter judgment in her favor on the breach of contract claim. While the court has the ability to do so even when there is no cross-motion for summary judgment, Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003), it is inappropriate here. The definition of disability in the policy includes five elements, only one of which defendant has fully briefed in its papers.
C. Breach of the Implied Covenant of Good Faith and Fair Dealing
Defendant maintains that plaintiff's bad faith claim fails because she has not demonstrated that she is entitled to benefits under the policy and that there is a genuine dispute as to coverage. For the reasons set forth below, summary judgment should be granted with respect to plaintiff's bad faith claim.
There is an implied covenant of good faith and fair dealing in every insurance contract. White v. Western Title Ins. Co., 40 Cal. 3d 870, 885 (1985). In order to establish bad faith, or breach of the implied covenant of good faith and fair dealing, a plaintiff must show that benefits due under the policy were withheld, and that the reason for withholding benefits was unreasonable or without proper cause. Love v. Fire Ins. Exchange, 221 Cal. App. 3d 1136, 1151 (4th Dist. 1990);Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2002) (applying California law). "The key to a bad faith claim is whether denial of a claim was unreasonable." Id. Even though bad faith is typically a question of fact for the jury, if a defendant's conduct is objectively reasonable, then its subjective intent is irrelevant. Morris v. Paul Revere Life Ins. Co., 109 Cal. App. 4th 966, 973 (4th Dist. 2003) ("[I]f the conduct of [the insurer] in defending this case was objectively reasonable, its subjective intent is irrelevant.").
A court may dismiss a bad faith claim on summary judgment if the defendant can demonstrate that there was a genuine dispute as to coverage. Guebara, 237 F.3d at 992 (describing the "genuine dispute doctrine"); Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1162 (holding that summary judgment is proper where it is indisputable that the basis for an insurer's denial of benefits was reasonable). It is not unreasonable for an insurer to resolve good faith doubts, whether factual or legal, against the insured. Blake v. Aetna Life Ins. Co., 99 Cal. App. 3d 901, 924 (4th Dist. 1979). Therefore, in the present posture, the court may grant the defendant summary judgment if no reasonable jury could disagree that there is a genuine dispute that plaintiff was entitled to benefits.
Even if defendant was ultimately wrong to terminate benefits — which is the issue in the breach of contract claim — that is a distinct issue from whether defendant acted in bad faith. Chateau Chamberay Homeowners Ass'n v. Associated Intern. Ins. Co., 90 Cal. App. 4th 335, 347 (2d Dist. 2001) (noting that liability for breach of contract and bad faith are not coterminous). To illustrate the difference in standards, if the court finds that there is a reasonable and genuine dispute as to whether plaintiff was disabled within the meaning of the policy, it must grant summary judgment as to the bad faith claims, and deny summary judgment as to the breach of contract claim.
Broadly, defendant's alleged bad faith acts can be divided into two categories: bad faith related to the termination of benefits and bad faith related to the investigation process of plaintiff's claim. The court addresses each in turn.
1. Termination of Benefits
Defendant cites to multiple reasons for why its decision to terminate plaintiff's benefits were reasonable under the circumstances. First, plaintiff waited for over a year to make her claim. Second, the evidence ultimately produced to document plaintiff's claim (e.g., Dr. Patterson's narrative report) was equivocal and suggested that plaintiff's symptoms might improve. Third, video surveillance, and the reports of medical consultants reviewing that footage, reveal that plaintiff's claims of injury were false or exaggerated.
Plaintiff responds in two ways. First, she notes that the reasonableness of an insurer's decisions and actions must be evaluated based on the information that it had at the time the decisions were made — not based on information acquired afterwards. See Chateau Chamberay, 90 Cal. App. 4th at 347; see also Filippo Industries, Inc. v. Sun Ins. Co. of New York, 74 Cal. App. 4th 1429, 1441 (2d Dist. 1999). For example, if an insurer unreasonably denied benefits in the first instance, it could not shield itself from liability by merely conducting medical examinations at some future date when the insured's health condition had improved.
If the court were to permit defendant to rely on information acquired after it decided to terminate benefits, it is highly likely that defendant's decision would be deemed reasonable, particularly in light of the reports from Dr. Schiff and Dr. O'Brien.
Defendant responds that it should not be limited to information in existence at the time plaintiff's benefits were terminated because she has a continuing claim of disability (i.e., if her disability disappears at any time, so too do her benefits). Furthermore, at least some of the subsequently acquired information consisted of evaluations of medical records already in existence at the time benefits were terminated, rather than ones reflecting plaintiff's condition at a future date. However, the court need not rule on defendant's continuing disability argument because, as described below, it finds that defendant had a reasonable basis for terminating benefits based on information available as of the date of termination.
Second, plaintiff disputes the substance of defendant's reasons for termination. As defendant points out, however, the very existence of a reasonable dispute precludes a finding of bad faith. For example, Dr. Hughes' treatment notes indicated that plaintiff was responding well to a steroid injection and that her back might improve with rest. Moreover, the surveillance footage corroborates this, as plaintiff was seen using her right hand and leaning over without any apparent difficulty. In addition, defendant had both Dr. Hughes' APS and the surveillance results at the time it terminated benefits.
To be sure, not all of the activities caught on the surveillance footage would necessarily indicate an ability to perform the fine motor skills required of a dental hygienist, which is the critical issue given the court's construction of the policy. However, plaintiff's apparent ability to engage in gross motor movements contradict her previous statements, calling into doubt the veracity of her claims as a general matter. This doubt remains even if the movements were not analogous to those required of a dental hygienist.
Furthermore, plaintiff stated that the use of her right arm would allow her to return to work. The surveillance video can reasonably be read to show her using her arm. Burnick Aff., Ex. B at 404:16-19. Of course, plaintiff is not a medical professional, and she might have incorrectly assessed her own condition. Nevertheless, plaintiff was also intimately familiar with her job functions and the movements that caused her discomfort; accordingly, her statement is entitled to some weight.
At oral argument, plaintiff's counsel argued that the genuine dispute doctrine is limited to situations where there are serious evidentiary disputes, as when parties offer the conflicting reports of doctors. Certainly, the doctrine has been applied in such circumstances. See, e.g., Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 380 (C.D. Cal. 1995) (finding that dispute between experts as to cause and origin of a fire established genuine dispute and therefore precluded bad faith). However, there is no case law indicating that only conflicting expert reports may give rise to a reasonable factual dispute. Moreover, Dr. Feingold provided defendant with his expert report, which stated that "[t]he surveillance reviewed fails to document any of the impairments that the insured is reported to have." Pohls Decl. ¶ 20, Ex. 19. Although Dr. Feingold did not personally examine plaintiff, his report took as an assumption that the diagnoses of plaintiff's doctors were accurate.
In light of the foregoing reasons, the court cannot find that the defendant acted unreasonably. Mr. Montari summarized the evidence relied upon to terminate plaintiff's benefits:
So all of that together, the occupational description, the inconsistencies in the surveillance tape, the medical reviews, the medical records showing improvement from the injection, no treatment for six months, gaps in treatments from both Dr. Patterson and Dr. Hughes, Dr. Patterson's statement that there are no current limitations and restrictions that rise to a disabling level, Dr. Feingold's, Dr. Hacker's, and Dr. Gordon's reviews all raising question to the extent of disability. Me combining all of that with the specifics of this case came to the conclusion that she was no longer eligible for benefits.Burnick Aff. Ex. B at 412:24-413:11. Viewed collectively, the evidence establishes sufficient justification for defendant's termination of benefits such that it cannot be held liable for bad faith.
2. Investigation
Additionally, an insurer breaches the implied covenant of good faith and fair dealing by failing to investigate thoroughly its insured's claim. Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809 (1979); Guebara, 237 F.3d at 996. An insurer may also be liable for failing to investigate a claim in an unbiased manner.See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1010 (9th Cir. 2004). This is significant because if the "genuine dispute" discussed above is, for example, based upon expert opinions that were the fruit of a biased investigation, the insurer may still be liable for bad faith. Here, plaintiff argues that defendant's investigation of her total disability, partial disability, and psychological disability were all deficient in some respect.
a. Total Disability
First, plaintiff alleges that defendant failed to investigate her total disability claim in a thorough and unbiased manner. Specifically, plaintiff argues that defendant ignored her back condition as a basis for disability, that defendant failed to conduct a timely IME, and that defendant failed to conduct a formal job analysis. I cannot agree.
First, defendant took into consideration plaintiff's back condition. Dr. Feingold's review discussed plaintiff's back and found that the "cervical and lumbar spine diagnoses, if active, could cause decrease in use of upper extremities," which "was not evident from the surveillance." Pohls Decl., ¶ 20, Ex. 19. Moreover, Mr. Montanari testified that in reviewing plaintiff's claim, he took into account the records of Dr. Hacker, a chiropractor, as well as Dr. Hughes' opinions regarding plaintiff's back pain.
Plaintiff's argument with regard to the IME is also unavailing. While it is true that defendant did not schedule an IME of plaintiff until 2006, it is also true that defendant attempted to schedule an FCE as early as 2001. Defendant scheduled the exam, but plaintiff expressed that she would only consent to an examination conducted by a physician rather than a physical therapist. This distinction, while significant, is not sufficient to establish that defendant abnegated its duty to investigate plaintiff's claim.
Plaintiff also argues that defendant's failure to commission a formal analysis of plaintiff's job duties was an act of bad faith. However, plaintiff overlooks the fact that she filled out a detailed form describing her job functions for defendant. Pohls Decl., Ex. 4. This form stated that her duties and activities included teeth cleaning, scaling, root planing, and taking x-rays, and that the maximum weight she was required to lift was ten pounds. The form also contained a fairly comprehensive checklist of physical movements required by a job and corresponding boxes for the frequency of those movements. Plaintiff argues that the form represented her lay opinion on her job duties, but tellingly, does not dispute the accuracy of the tasks listed. In light of this information, it would not be bad faith for defendant to refrain from conducting a formal job analysis.
In general, plaintiff focuses on the investigatory activities that defendant allegedly failed to conduct, but it ignores the activities that defendant in fact ordered. For example, defendant obtained medical reviews from Dr. Feingold and Dr. Hacker, commissioned video surveillance of plaintiff, and reviewed the claim forms submitted by plaintiff as well as what medical records it received from plaintiff's treating doctors. While defendant might have done more to substantiate its ultimate decision, the court cannot find that defendant breached its duty to investigate based on the aforementioned conduct.
b. Partial Disability
Plaintiff further contends that defendant also failed to adequately investigate her claim for partial disability, in which she reduced her work week from three days per week to two days in January 2000. Although, as described above, the duty to investigate typically exists independent of whether there is a reasonable dispute over plaintiff's entitlement to benefits, when the dispute is clearly genuine and non-pretextual, the duty to investigate is correspondingly lower. See Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc., 971 F.2d 272, 283 (9th Cir. 1992) (finding that "an insurer [need] not conduct a more thorough investigation [when] the insurer already has good reason to dispute liability").
Here, defendant's investigation was reasonable in light of plaintiff's one-year delay in submitting the claim, the sporadic treatment that plaintiff sought for her condition during that one year period, and the fact that plaintiff's work duties remained unchanged, even though her hours were reduced. Indeed, even though defendant requested them, Dr. Patterson was unable to provide treatment notes regarding plaintiff's period of partial disability. His narrative report was similarly silent as to the specific dates of plaintiff's treatment. Even viewing the evidence in the light most favorable to the plaintiff, it cannot be said that defendant's investigation of the partial disability claim was unreasonable.
c. Psychological Disability
Plaintiff alleges that defendant failed to investigate her psychological disability. She argues that defendant was on notice of this possibility, as the medical records from Dr. Patterson indicated that she was emotionally fragile, suffered from panic attacks and anxiety, and was taking medication to manage her symptoms. Defendant has stated that its policy is to investigate all possible concurrent causes of disability.
Plaintiff's argument is unavailing. First, there is no explanation as to how plaintiff's psychological condition might have caused the physical disability, and plaintiff does not allege that the psychological condition itself constitutes a disability within the meaning of the policy. Plaintiff stated that she stopped working in 2000 because of her physical condition, not her psychological condition. Second, in response to the question, "Do you have any other health problems that may be contributing to your difficulties or aggravating your condition?", plaintiff responded "No." Pohls Supp. Decl., Ex. 41. Third, the initial claims examiner on plaintiff's file testified that "I didn't see anything significant that would indicate to me there was a possible disability." Pohls. Supp. Decl., Ex. 44 at 369:5-10 (referring to plaintiff's psychological condition). Accordingly, there is no genuine dispute as to the adequacy of defendant's investigation into plaintiff's psychological disability.
d. Other Alleged Acts of Bad Faith
Plaintiff submits that defendant engaged in a litany of bad faith acts, which she recites over the course of twenty-two pages in its fifty-six page brief. The court has addressed plaintiff's more serious arguments and finds that the remainder are without merit.
For example, plaintiff maintains that defendant has failed to "give at least as much consideration" to the interests of its insured as to its own interests. As evidence, she points to defendant's institutional practices of communicating the company's financial plan and performance targets to examiners. The inference is that examiners are pressured to deny claims in order to meet these performance targets. However, by her own admission, plaintiff concedes that it is not improper for an insurance company to maintain and communicate claims handling statistics. Without a more specific nexus to the facts of the present case, this generic information about defendant's "corporate culture and environment," Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 21, cannot support a claim of bad faith. The remainder of plaintiff's arguments are similarly without merit.
First, plaintiff argues that defendant acted in bad faith by failing to reference Erreca in its policy, but, as noted above, that case has no bearing on how to interpret the policy. Second, plaintiff notes that the termination letter failed to identify in detail each activity observed during surveillance and how each observed activity was inconsistent with plaintiff's alleged injuries. However, the insurance code merely requires insurers to provide a reasonable explanation of the basis for termination "in relation to the facts," which the court finds that defendant did here. Cal. Ins. Code § 790.03(h)(13). Third, plaintiff maintains that defendant only gave plaintiff a small window of time after the termination letter was sent in order to prevent the lapse of her policy. However, plaintiff ultimately paid her premium on time, and defendant's conduct is not of the magnitude that typically characterizes bad faith actions.
To summarize, defendant's motion for summary judgment as to bad faith should be granted because its decision to terminate plaintiff's benefits was based on at least reasonable disputes regarding plaintiff's medical condition and whether the condition reduced plaintiff's ability to work as defined in the policy. Furthermore, its investigation of plaintiff's claims (psychological, total, and partial) was reasonable under the circumstances. D. Intentional and Negligent Misrepresentation Defendant also moves for summary judgment on plaintiff's intentional and negligent misrepresentation claims. Plaintiff's primary claim is that defendant promised coverage without the intent to provide such coverage, or without a reasonable basis for believing it would provide such coverage. For the reasons set forth below, summary judgment with respect to these claims should be denied.
In California, a cause of action for intentional misrepresentation or fraud requires that the plaintiff to prove the existence of the following: (1) misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity, (3) intent to deceive or induce reliance, (4) justifiable reliance, and (5) resulting damage. Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996); Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 974 (1997);Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1201 (9th Cir. 2001).
The elements of a cause of action for negligent misrepresentation are similar, except that plaintiff need not prove the element of scienter. Gagne v. Bertran, 43 Cal. 2d 481, 487-88 (1954). Rather, plaintiffs need only prove that the representation was made without a reasonable basis. Glenn K. Jackson Inc., 273 F.3d at 1201 n. 2.
For both claims, plaintiff identifies the same four alleged misrepresentations. First, plaintiff argues that MassMutual represented that it would pay for disability benefits if plaintiff satisfied the terms and conditions of the policy. Second, plaintiff maintains that defendant should have discussedErreca in the policy. Third, plaintiff claims that defendant represented that it would schedule an IME when the claim was pending. Finally, plaintiff avers that defendant misrepresented that her appeal would be timely resolved.
The latter three alleged misrepresentations can be resolved summarily. Plaintiff's contention that defendant should have discussed Erreca is moot, given the interpretation of the policy adopted above. Plaintiff's argument that defendant should have scheduled an earlier IME is also unavailing, because plaintiff indicated that she would consent to an FCE so long as it was conducted by a doctor. Furthermore, there is no explanation as to how plaintiff relied upon or otherwise changed her conduct in response to defendant's alleged representation that it would schedule an FCE. Similarly, even if the court agreed that defendant failed to resolve plaintiff's appeal in a timely fashion, there is no allegation that plaintiff relied upon this representation to her detriment.
Plaintiff's primary claim is that defendant intentionally or negligently promised her benefits that she did not receive, but was entitled to receive. In other words, the representation at issue is the very definition of disability employed in the policy. Whether this representation was false turns on plaintiff's entitlement to benefits, which, as discussed above with regard to the breach of contract claim, is the subject of a genuine dispute. However, defendant may still prevail on summary judgment if it can demonstrate that there is no genuine dispute that it did not know, and should not have known, that plaintiff was entitled to benefits.
Defendant has failed in meeting its burden on summary judgment with regard to the knowledge/scienter element. Intent may be inferred from a defendant's subsequent conduct after making an alleged misrepresentation. Wetherbee v. United Ins. Co. of America, 265 Cal. App. 2d 921, 932 (1st Dist. 1968). Here, defendant argues that intent may not be inferred from the circumstances, but fails to engage the factual record, or even cite to it. One could infer that defendant intentionally terminated plaintiff's benefits, even though it knew that she was entitled to the these benefits. A fortiori, a reasonable jury could also conclude that defendant was negligent in terminating plaintiff's benefits because the weight of the evidence indicated that she was disabled within the meaning of the policy. The issue of scienter is a question reserved for the jury.
Defendant relies on an unpublished case, Brewer, for the proposition that "intent cannot be inferred merely from a defendant's claim processing procedures, even if such procedures result in an interpretation of the policy terms that is unreasonable." Brewer v. Fortis Ins. Co., No. C 03-05150 SI, 2005 WL 645414, at *6 (N.D. Cal. March 21, 2005). However,Brewer says nothing of the sort. Rather, the court in Brewer merely held that the plaintiff, who sued his insurance company, failed to allege a misrepresentation whatsoever, given that the parties never discussed the alleged misrepresentation, and that the misrepresentation was not material. Here, however, the alleged misrepresentation goes to the heart of plaintiff's disability policy.
Moreover, this conclusion would not contradict the court's ruling with respect to the bad faith claim. For example, an insurer may be liable for intentional misrepresentation because it had the subjective intent to defraud the insured but not liable for bad faith because its actions were objectively reasonable. See Morris, 109 Cal. App. 4th at 973 (holding, in the context of a bad faith claim, that "if the conduct of [the insurer] in defending this case was objectively reasonable, its subjective intent is irrelevant."). In addition, while the genuine dispute doctrine may immunize an insurer from liability for bad faith, there is no analogous defense in the context of intentional misrepresentation.
Accordingly, the court denies summary judgment with respect to the intentional and negligent misrepresentation claims.
E. Intentional Infliction of Emotional Distress
Defendant also moves for summary judgment on plaintiff's intentional infliction of emotional distress claim. In California, the elements of a prima facie case for the tort of intentional infliction of emotional distress are (1) outrageous conduct, (2) intent or recklessness, (3) severe emotional distress, and (4) actual and proximate causation. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). As set forth below, the court grants summary judgment with respect to this claim.
Plaintiff's claim fails because she cannot prove the first element. Conduct is outrageous if it exceeds all bounds of that usually tolerated in a civilized society. Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1150 (9th Cir. 1988); see also Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir. 1991) (holding that summary judgment is proper if a claim cannot "reasonably be regarded as so extreme and outrageous as to permit recovery") (internal quotations omitted).
Here, defendant's surveillance of plaintiff does not exceed all bounds of that usually tolerated in a civilized society. To the contrary, surveillance in disability insurance cases is "commonplace." See Teague v. Home Ins. Co., 168 Cal. App. 3d 1148, 1153 (2d Dist. 1985). Barring exceptional circumstances, surveillance is not the kind of conduct that can be deemed outrageous. The facts here are unlike cases in which courts have found that surveillance, in combination with other factors, crosses the line into outrageous conduct. See, e.g., Unruh v. Truck Ins. Exchange, 7 Cal. 3d 616 (1972) (finding outrageousness where investigator tricked plaintiff into romantic relationship and shook rope bridge that plaintiff was standing on in order to obtain pictures of her reaction).
Even if plaintiff had psychological problems such as obsessive-compulsive behavior and paranoia, Pohls Decl. at ¶ 32, Ex. 31, and defendant was on notice about these problems, reasonable surveillance under such circumstances would still not rise to the level of outrageous conduct. See Teague, 168 Cal. App. 3d at 1152 ("The knowledge that surveillance might exacerbate a claimant's psychological or emotional problems does not preclude the use of reasonable surveillance techniques by compensation carriers.").
Accordingly, the court grants summary judgment with respect to the intentional infliction of emotional distress claim.
F. Negligent Infliction of Emotional Distress
Defendant also moves for summary judgment with respect to plaintiff's negligent infliction of emotional distress claim. While defendant's conduct may not have been outrageous, that does not negate the possibility that it was negligent, particularly in light of plaintiff's psychological condition. Because defendant has failed to establish the absence of a genuine issue with respect to any of the element of the negligent infliction of emotional distress claim, summary judgment must be denied.
Under California law, a cause of action for negligent infliction of emotional distress requires that a plaintiff demonstrate (1) serious emotional distress, (2) actual and proximate causation, (3) wrongful conduct by the defendant, and (4) foreseeability. Austin, 367 F.3d at 1172. The claim is not an independent tort but simply a species of negligence. Lawson v. Mgmt. Activities, Inc., 69 Cal. App. 4th 652, 656 (4th Dist. 1999) ("[T]here is no such thing as the independent tort of negligent infliction of emotional distress."). Accordingly, the elements of duty, breach, causation, and damages apply to a claim for negligent infliction of emotional distress. Macy's California, Inc. v. Superior Court, 41 Cal. App. 4th 744, 747 (1st Dist. 1995).
Defendant's only argument against the negligence claim is that plaintiff's emotional distress is not severe. Severe emotional distress exists if the distress is "of such substantial quantity or enduring quality that no reasonable [person] in civilized society should be expected to endure it." Fletcher v. W. Nat'l Life Ins. Co., 10 Cal. App. 3d 376, 397 (4th Dist. 1970). Plaintiff has tendered the psychological evaluation of Dr. Albert Globus, who noted that defendant's surveillance led to "an aggravation of her signs and symptoms of anxiety, obsessive compulsive behaviors, hypervigilance, and mildly paranoid interpretation of her social environment." Globus Aff. at ¶¶ 12-16. Although a close issue, reasonable jurors could disagree as to whether this constitutes "severe" distress, particularly given Dr. Globus' suggestion that her recovery would be significantly prolonged. In response, defendant merely distinguishes cases in which the insured's emotional distress was deemed severe; however, those cases do not indicate the threshold at which emotional distress becomes severe.
Because there is a genuine dispute as to whether plaintiff's emotional distress is severe, summary judgment as to the negligent infliction of emotional distress claim must be denied.
G. Punitive Damages
Finally, defendant moves for summary judgment on the issue of punitive damages. Under California law, a plaintiff may recover punitive damages if it is proven "by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Cal Civ. Code § 3294(a);Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1013 (9th Cir. 2004). Plaintiff must show that defendant "engaged in despicable conduct with a conscious disregard of the rights or safety of others." Kransco v. Am. Empire Surplus Lines Ins. Co., 23 Cal. 4th 390, 398-99 (2000). Given the court's ruling with respect to the intentional misrepresentation claim, defendant's motion must be denied. See, e.g., RB Auto Center v. Farmers Group, Inc., 140 Cal. App. 4th 327, 347 n. 9 (4th Dist. 2006) (permitting punitive damages based on intentional misrepresentation claim). However, the court may not award punitive damages based on any of the other claims, such as the breach of contract claim, the individual UCL claim, or the negligent infliction of emotional distress claim. See Cates Constr. v. Talbot Partners, 21 Cal. 4th 28, 980 P.2d 407, 427 (1999) (holding that punitive damages are not available for breach of contract absent some independent tort). Because punitive damages are available for an intentional misrepresentation claim, summary judgment must be denied.
V. CONCLUSION
1. Defendant's motion for summary judgment as to the representative UCL claim is GRANTED.
2. Defendant's motion for summary judgment as to the breach of contract claim is DENIED.
3. Defendant's motion for summary judgment as to the bad faith claim is GRANTED.
4. Defendant's motion for summary judgment as to the intentional misrepresentation claim is DENIED.
5. Defendant's motion for summary judgment as to the negligent misrepresentation claim is DENIED.
6. Defendant's motion for summary judgment as to plaintiff's intentional infliction of emotional distress claim is GRANTED.
7. Defendant's motion for summary judgment as to plaintiff's negligent infliction of emotional distress claim is DENIED.
8. Defendant's request that the court bar recovery for punitive damages is DENIED.
IT IS SO ORDERED.