United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.
HEREBY ORDERED that Defendant's Motion for Summary
Judgment (Doc. #58) is GRANTED. Plaintiff's causes of
action related to defendant's denial of Ruth
Welcker's claim for reimbursement for services rendered
by God's Angels Sitting Service, including the associated
bad faith claims, are DISMISSED.
FURTHER ORDERED that Defendant's Motion to Quash Trial
Subpoenas (Doc. #69) is GRANTED as to the subpoenas issued to
Joe Thompson and Cindy Glenn. The motion is DENIED as to the
subpoena issued to Mutual of Omaha Insurance Company.
matter is before the court on a motion for summary judgment
filed by defendant, Mutual of Omaha Insurance Company
("MOIC"). MOIC argues that it is entitled to
summary judgment on plaintiff's claims related to the
payment of God's Angels Sitting Service's bills and
the related bad faith claims because plaintiff never
submitted proof that she is entitled to the benefits she
claims under the insurance policy at issue. It is also before
the court on MOIC's motion to quash trial subpoenas that
plaintiff issued to Joe Thompson, Cindy Glenn and MOIC.
Terry Barthe, was the goddaughter of Ruth Welcker and is the
beneficiary of Welcker's estate. In 2009, Welcker
obtained a long-term care insurance policy from MOIC, and
continued to pay the premiums until her death on January 29,
April 2012, Barthe employed God's Angels to provide
in-home care to Welcker, including homemaking services,
feeding, toileting and bathing. Barthe alleges that God's
Angels' workers completed a home health aide training
course and provided care under the supervision of a
registered nurse. God's Angels has a Private Employment
Service license issued by the Louisiana Workforce Commission.
September 2013, Barthe contacted MOIC to inform it that
Welcker broke her hip and had been a patient at Touro
Infirmary Hospital and Woldenberg Village. Barthe also
informed MOIC that Welker had dementia and could no longer be
left alone. Thus, Welcker would need constant care when she
January 2014, almost two years after God's Angels began
providing services to Welcker, Barthe mailed claim forms to
MOIC seeking reimbursement for God's Angels' bills.
MOIC received the claim packet on January 29, 2014.
February 2014, MOIC asked God's Angels to provide a copy
of its initial assessment of Welcker and its home health care
agency license. In April 2014, MOIC received a copy of
God's Angels' Private Employment Service license
issued by the Louisiana Workforce Commission. In May 2014,
MOIC again requested a copy of God's Angels' initial
assessment of Welcker and its home health care agency
license. Also, in May and June 2014, MOIC informed Welcker
that it needed God's Angels' initial assessment of
Welcker and its home health care agency license to process
August 21, 2014, MOIC wrote to Welcker explaining the
resolution of her claim. MOIC denied Welcker's claim for
God's Angels' bills, explaining that God's
Angels' services were not covered because it is licensed
as a Private Employment Service and does not meet the
insurance policy's definition of "Home Health Care
Agency." The letter also explained that MOIC would pay
Welcker's claim for John Hainkel Adult Day Care's
services. Further, MOIC denied Welcker's claims related
to expenses incurred at Touro and Pulse Home Health Care
because those bills were paid by Medicare and the policy does
not cover care or treatment for which benefits are available
December 6, 2016, Barthe filed this action against MOIC in
the Civil District Court, Parish of Orleans, State of
Louisiana alleging breach of contract and bad faith claims
related to MOIC's failure to pay Welcker's claim for
services rendered by God's Angels, and seeking
reimbursement for the amount Welcker paid God's Angels,
bad faith penalties, punitive damages and attorneys'
removed the action to the United States District Court for
the Eastern District of Louisiana alleging diversity subject
matter jurisdiction under 28 U.S.C. § 1332, because the
parties are citizens of different states and there is more
than $75, 000 in controversy. Barthe filed three supplemental
and amending complaints. The Third Supplemental and Amending
Complaint adds claims that MOIC improperly calculated the
elimination days under the policy and seeks reimbursement for
services provided by Guardian Home Health Care, Lincare
Enteral Services, Lighthouse for the blind, Touro Home Care,
and Angels on Assignment.
filed the instant motion for summary judgment arguing that
Barthe's causes of action related to its denial of
Welcker's claim for reimbursement for services rendered
by God's Angels must be dismissed because the claim was
properly denied as God's Angels does not meet the
insurance policy's definition of home health care agency.
Barthe argues that God's Angels provided Welcker with
maintenance and personal care services and homemaking
services, which are covered under the policy and that the
policy is vague in terms of what is required for a home
health care agency to be considered licensed.
MOIC's Motion for Summary Judgment (Doc. #58)
Summary Judgment Standard
of the Federal Rules of Civil Procedure provides that the
"court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Granting a motion for summary judgment is proper if the
pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits filed in support of the
motion demonstrate that there is no genuine issue as to any
material fact that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, Inc., 106 S.Ct. 2505, 2509-10 (1986). The
court must find "[a] factual dispute . . . [to be]
'genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party . . .
[and a] fact . . . [to be] 'material' if it might
affect the outcome of the suit under the governing
substantive law." Beck v. Somerset Techs.,
Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing
Anderson, 106 S.Ct. at 2510).
moving party meets the initial burden of establishing that
there is no genuine issue, the burden shifts to the
non-moving party to produce evidence of the existence of a
genuine issue for trial. Celeotex Corp. v. Catrett,106 S.Ct. 2548, 2552 (1986). The non-movant cannot satisfy
the summary judgment burden with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.
Little v. Liquid Air Corp.,37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). If the opposing party bears the burden
of proof at trial, the moving party does not have to submit
evidentiary documents properly to support its motion, but
need only point ...