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Barthe v. Mutual of Omaha Insurance Co.

United States District Court, E.D. Louisiana

June 11, 2018

TERRY BARTHE AS THE SUCCESSOR TO THE RIGHTS OF RUTH WELCKER
v.
MUTUAL OF OMAHA INSURANCE COMPANY

         SECTION: "S" (2)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT IS 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.

         IT IS 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.

         BACKGROUND

         This 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.

         Plaintiff, 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, 2016.

         In 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.

         In 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 returned home.

         In 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.

         In 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 her claim.

         On 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 under Medicare.

         On 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' fees.

         MOIC 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.

         MOIC 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.

         ANALYSIS

         I. MOIC's Motion for Summary Judgment (Doc. #58)

         A. Summary Judgment Standard

         Rule 56 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).

         If the 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 ...


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