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. 97) filed by Defendant/Counterclaimant Gene L.
Muse, MD (“Muse”) and Defendant Patia Pearson
“Defendants”), seeking judgment on the
fraud-and-deceit and conspiracy claims alleged by
Plaintiff/Counterclaim Defendant Allianz Life Insurance
Company of North America (“Allianz”). Allianz has
filed a Response (Doc. No. 111), to which Defendants have
replied (Doc. No. 120). For the reasons outlined below,
Defendants' Motion is denied.
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 is eligible.
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. ¶¶ 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.
about September 17, 2015, Donald Adams, MD, examined Muse and
certified that Muse needed continuous assistance with ADLs.
Defs.' Mot. Ex. 2 (Doc. No. 97-2); see also
Compl. ¶ 18. On September 16-18, 2015, Allianz retained
an investigator to record video surveillance of Muse. Wuensch
Dep. 162:1-11 (Apr. 10, 2019) (Patty Wuensch testifying in
role as Allianz Principal Claims Consultant) (Doc. No.
97-36); see also Compl. ¶ 18. The investigator
recorded Muse ambulating without assistance and driving a
vehicle and also walking with the use of crutches when going
to an appointment. See Video of Sept. 16-18, 2015
(Doc. No. 98-14 (conventionally filed)); see also
Compl. ¶ 18.
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 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; see also Compl.
¶ 19 (“Muse submitted or caused the . . . Weekly
Documentation Logs to be submitted to Allianz for the purpose
of securing payment of the [Daily Benefits] from Allianz
under the Policy.”); Muse Answer & Countercls.
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 based
upon his Chronically Ill. certification-i.e., the report from
Dr. Adams regarding Muse's ADLs-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 for $32, 728.53 to
Muse for dates of service 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 rendered September 26, 2015, through November
22, 2015. Id. at 5-6.
November 23-25, 2015, Allianz again retained an investigator
to record video surveillance of Muse. Wuensch Dep. 207:15-18
(Doc. No. 97-36); see also Compl. ¶ 22. This
surveillance reflected Muse ambulating without assistance,
opening and closing a vehicle door, entering and exiting a
vehicle, driving to and from a local bank, and walking into
and out of the bank without any visible use of braces or
crutches. See Video of Nov. 23-25, 2015 (Doc. No.
98-15 (conventionally filed)). The investigator also observed
Pearson leaving Muse's residence at 9:45 a.m. on November
25, 2015, and not returning before 4:00 p.m. when the
surveillance ended. See id.
January 15, 2016, 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 then summarized the events
recorded on the video of November 23-25, 2015, described
above and 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.” Id.
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.
When Pearson attempted to show how she assists Muse with
showering, she appeared unfamiliar with the process and did
not open the correct door. Video of July 20, 2016 (Doc. No.
98-17 (conventionally filed)); Wuensch Dep. 70:25-71:18 (Doc.
No. 97-32). 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