United States District Court, W.D. Oklahoma
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, Plaintiff/Counterclaim Defendant,
GENE L. MUSE, M.D., Defendant/Counterclaimant; and PATIA PEARSON, Defendant.
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
before the Court is the Motion for Partial Summary Judgment
(Doc. No. 98) filed by Plaintiff/Counterclaim Defendant
Allianz Life Insurance Company of North America
(“Allianz”). Defendant/Counterclaimant Gene L.
Muse, MD (“Muse”) has filed a Response (Doc. No.
112), to which Allianz has replied (Doc. No. 122). As
outlined below, Allianz's Motion is granted in part and
denied in part.
Standard of Review
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a).
that moves for summary judgment has the burden of showing
that the undisputed material facts require judgment as a
matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). To defeat summary
judgment, the nonmovant need not convince the Court that it
will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the
nonmovant's favor-i.e., to show that there is a question
of material fact that must be resolved by the jury. See
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.
2005). The Court must then determine “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
may establish the existence or nonexistence of a material
disputed fact by:
• citing to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). While the Court views the
evidence and the inferences drawn from the record in the
light most favorable to the nonmoving party, see
Pepsi-Cola Bottling Co. of Pittsburg, Inc. v.
PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005),
“[t]he mere existence of a scintilla of evidence in
support of the [nonmovant's] position will be
insufficient; there must be evidence on which the [trier of
fact] could reasonably find for the [nonmovant].”
Liberty Lobby, 477 U.S. at 252.
December 2017, Allianz filed its Complaint (Doc. No. 1)
alleging that a dispute had arisen in connection with a
long-term-care insurance policy (“the
“Policy”) issued in 2000 by Allianz to Muse.
See Compl. ¶¶ 11-41; id. Ex. 1
(“Policy”) (Doc. No. 1-1). The Policy provides
“Daily Benefits” for “Home and Community
Services, ” which include payment for “Home
Care” services provided in connection with the
activities of daily living-or ADLs-of bathing, continence,
dressing, eating, toileting, and transferring. Policy at 10.
To be eligible for such Daily Benefits, the insured must be
certified within the previous 12 months by a licensed health
care practitioner as being “Chronically Ill”-
i.e., (1) being unable to perform, without “Substantial
Assistance, ” at least two ADLs for a period of at
least 90 days due to loss of functional capacity or (2)
having a severe “Cognitive Impairment.”
Id. at 11, 13-14. “Substantial
Assistance” means “hands-on or stand-by
assistance of another person without which you would be
unable to perform [ADLs].” Id. at 13.
Policy provides Muse with unlimited Daily Benefits for Home
and Community Services for the period that Muse meets the
Eligibility for Benefits. See Id. at 5, 13-14. If
eligible for payment of benefits, Muse receives the full
Daily Benefit for covered services, “regardless of
actual charges incurred” by Muse. Id. at 8.
The Policy provides, however, that “[n]o benefits will
be paid for any . . . care . . . or [services]”
“for which [Muse] ha[s] no financial liability or that
[are] provided at no charge in the absence of
insurance.” Id. at 16.
who previously worked as an orthopedic surgeon, alleges that
he suffers from chronic physical ailments, as well as
impairments that arose when he fell from a ladder on June 28,
2014. Def. Muse Answer & Countercls. (Doc. No. 9)
¶¶ 69-70. Muse filed his first claim for Daily
Benefits on July 28, 2015, asserting that he had been paying
for home health-care services for “[a]ll daily
activities” from Adlife HomeCare LLC (“Adlife,
” later known as “Alpha Private Services
LLC”) since September 17, 2014. Defs.' Mot. Ex. 1
(Doc. No. 97-1); see also Compl. ¶ 17.
September 30, 2015, Muse submitted to Allianz: (1) a copy of
Adlife's state license; (2) Adlife's care plan for
Muse; and (3) itemized invoices and Weekly Documentation Logs
from Adlife certifying under penalty of law that Defendant
Patia Pearson (“Pearson”), who is a Home Health
Aide with Adlife, had provided Muse with the identified
home-health services every day from July 1, 2015, through
September 25, 2015. Defs.' Mot. Ex. 12 (Doc. No. 97-12);
Wuensch Dep. 35:5-36:1 (Aug. 27, 2019) (Patty Wuensch
testifying in role as Allianz corporate representative) (Doc.
No. 97-32); see also Compl. ¶ 19; Muse Answer
& Countercls. ¶ 19.
October 26, 2015, a letter from Allianz's long-term-care
benefits administrator, issued on Allianz letterhead,
notified Muse that he was eligible for Daily Benefits and
that Muse's “benefit eligibility period is approved
through January 26, 2016 provided [Muse] continue[s] to
satisfy the policy's benefit eligibility
requirements.” Defs.' Mot. Ex. 3 (Doc. No. 97-3).
On November 9, 2015, Allianz paid the claim for Daily
Benefits of $32, 728.53 to Muse for services provided him
from July 1, 2015, to September 25, 2015. Defs.' Mot. Ex.
26 (Doc. No. 97-26) at 2-4. On January 21, 2016, Allianz paid
$22, 232.84 for Daily Benefits for services provided him from
September 26, 2015, through November 22, 2015. Id.
January 15, 2016, however, Allianz sent a letter to Muse
informing him that “because the level of
impairment” claimed by Muse-i.e., daily assistance with
his ADLs and numerous other tasks-“did not appear to be
consistent with medical information, ” Allianz had
conducted an “activities check, ” the results of
which “conflict[ed] with the documented care needs
described in the Weekly Documentation Logs.” Defs.'
Mot. Ex. 4 (Doc. No. 97-4). The letter concluded, “The
activities we have observed suggest that Dr. Muse is capable
of performing the Activities of Daily Living without
Substantial Assistance of another person. Consequently, we
have concluded that he is not Chronically Ill. beginning on
November 23, 2015, and no further benefits will be approved
for services received on or after this date.”
then appealed this claim denial, submitting a letter from
Michael Winzenread, MD, asserting that Muse needed assistance
with the ADLs of bathing, dressing, and toileting. Defs.'
Mot. Ex. 5 (Doc. No. 97-5); see also Compl. ¶
24. Allianz then advised Muse that it would be seeking
medical records from Dr. Winzenread and requesting an in-home
nursing assessment by a nurse care manager. Defs.' Mot.
(Doc. No. 97-6). The in-home assessment was conducted on or
about July 20, 2016. Comp. ¶ 25. Muse and Pearson both
participated in the assessment and asserted that Muse
required assistance from Pearson with bathing, continence,
dressing, eating, toileting, and transferring. Id.;
see also Muse Answer & Countercls. ¶ 25. On
August 18, 2016, Allianz upheld the denial of benefits for
service dates after November 22, 2015. Defs.' Mot. Ex. 8
(Doc. No. 97-8).
appealed this decision through his attorney, submitting
additional materials for review on October 26, 2016.
Defs.' Mot. Ex. 9 (Doc. No. 97-9). On March 3, 2017,
Allianz notified Muse that it had reconsidered and would pay
the claims submitted for Daily Benefits rendered from
November 23, 2015, through January 1, 2016. Defs.' Mot.
Ex. 10 (Doc. No. 97-10). On March 10, 2017, Allianz paid
Daily Benefits of $15, 800.00 to Muse for services provided
him during that period. Defs.' Mot. Ex. 26, at 26-27.
continued to submit claims with invoices and documentation
logs showing home-health services provided by Pearson during
2016 and 2017. Defs.' Mot. Exs. 18 (Jan. 2, 2016-Apr. 1,
2016) (Doc. No. 97-18), 19 (Apr. 2, 2016-July 31, 2016) (Doc.
No. 97-19), 20 (Aug. 1, 2016-Feb. 3, 2017) (Doc. No. 97-20).
On April 19, 2017, Allianz paid Daily Benefits of $83, 740.00
to Muse for services provided him from January 2, 2016,
through July 31, 2016. Defs.' Mot. Ex. 26, at 28-29. On
May 5, 2017, Allianz paid $75, 741.25 of Daily Benefits to
Muse for services provided him from August 1, 2016, through
February 3, 2017. Id. at 30-31. On June 13, 2017,
Allianz paid $31, 935.75 of Daily Benefits to Muse for
services provided him from February 4, 2017, through April
21, 2017. Id. at 32-33.
29, 2017, Allianz informed Muse it would not approve benefits
beyond April 21, 2017. Defs.' Mot. Ex. 25 (Doc. No.
97-25) (“Based on information on file, we are unable to
determine Dr. Muse requires assistance with at least two ADLs
at this time . . . .”). Muse then submitted more
documentation and invoices for payment of claims beyond that
date. Defs.' Mot. Ex. 22 (Doc. No. 97-22). On July 11,
2017, Muse requested reconsideration of Allianz's denial
and submitted a Chronically Ill. Statement from a physician
who certified that Muse needed stand-by assistance with two
ADLs and hands- on assistance with five ADLs. Defs.' Mot.
Exs. 27 (Doc. No. 97-27), 34 (Doc. No. 97-34). On September
5, 2017, Allianz received logs and invoices for services
rendered through September 2, 2017. Defs.' Mot. Ex. 23
(Doc. No. 97-23).
and Muse's attorney continued to correspond regarding
Allianz's ongoing review of the claims for Daily
Benefits. Defs.' Mot. Exs. 28 (Doc. No. 97-28), 29
(97-29), 30 (Doc. No. 97-30). In November 2017, Allianz
provided the medical records submitted by Muse and gathered
by Allianz, as well as video recordings taken by
Allianz's investigator, to Stephen K. Holland, MD, for
review. Compl. ¶ 39. Dr. Holland is the Medical Director
and Chief Medical Officer of LTCG, a third-party
administrator hired by Allianz to administer
long-term-care-insurance claims. Defs.' Mot. Ex. 35 (Doc.
No. 97-35). Dr. Holland issued a report on November 10, 2017,
stating that he was not able to certify Defendant Muse as a
Chronically Ill. individual under the Policy. Dr. Holland
also opined that Defendant Muse had regained his ability to
perform ADLS no later than September 21, 2016. Holland R.
(Doc. No. 98-6).
has been Muse's primary caregiver since 2014, although
Muse has received some limited assistance from family
members. Muse Dep. 93:12-96:11 (May 21, 2019) (Doc. No.
111-1). Pearson and Muse had a romantic relationship from
2001 through 2007 and intermittently after that for a couple
of years. They considered themselves to be each other's
significant other at various times. During 2008 through 2014,
although Pearson dated other people, she still attended