MARCELL LEAK, Plaintiff, v. DUANE A. WADSWORTH, individually, and as agent of EAGLE RIDGE TRANSPORTATION, INC., individually, Defendants.

 

Case No. 15 C 3643

 

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

 

2017 U.S. Dist. LEXIS 101394

 

 

June 29, 2017, Decided

June 29, 2017, Filed

 

 

COUNSEL:  [*1] For Marcell Leak, Plaintiff: Sheldon J. Aberman, LEAD ATTORNEY, Michael Alan Hume, Cary J. Wintroub & Associates, Chicago, IL.

 

For Duane A Wadsworth, individually, agent of, Eagle Ridge Transportation, Eagle Ridge Transportation, Inc., Defendants: Kathleen Mary McDonough, LEAD ATTORNEY, Lamis Ghassan Eli, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL.

 

JUDGES: JORGE L. ALONSO, United States District Judge.

 

OPINION BY: JORGE L. ALONSO

 

OPINION

 

MEMORANDUM OPINION AND ORDER

On March 27, 2015, plaintiff, Marcell Leak, filed this negligence action against defendants for injuries he suffered when Duane Wadsworth’s truck collided with Leak’s truck. On April 24, 2015, defendants, Wadsworth and his employer, Eagle Ridge Transportation, Inc., removed the case from the Circuit Court of Cook County. The case proceeded to a bench trial that the Court conducted from November 14 to 16, 2016. The Court heard the parties’ opening and closing arguments and testimony from several witnesses1 and admitted a number of exhibits into evidence. The parties submitted proposed findings of fact and conclusions of law after trial. Plaintiff asks the Court to award him: (1) $170,479.35 for medical expenses; (2) $175,000 for pain and suffering; [*2]  (3) $125,000 for loss of a normal life; and (4) $72,095.50 in lost wages, for a total of $542,574.85. Defendant counters that plaintiff has not proven by a preponderance of the evidence that the May 7, 2013 accident caused his injuries. After considering the evidence and for the reasons set forth below pursuant to Federal Rule of Civil Procedure 52(a), the Court enters judgment in favor of plaintiff and against defendant in the amount of $222,025.83.

 

1   The live witnesses at trial were Adrienne Leak, Marcell Leak, and Duane Wadsworth. The testimony of Paul Czapar, Charles Bodem, Dr. Axel Vargas, Dr. Gunnar Andersson, and Dr. Sean Salehi was presented via videotaped depositions.

 

FINDINGS OF FACT

 

May 7, 2013 Collision

This case arises from a collision that occurred on the evening of May 7, 2013, at a Pilot truck stop in Bloomington, Illinois. (Leak Trial Testimony at 5 ll. 4-10, 23-24.) At the time, Leak was a truck driver for Schneider National and had stopped in Bloomington to take his federally-mandated ten-hour break. (Id. at 3 ll. 5-8, 6 ll. 1-8.) After eating dinner and talking to his wife on the phone, Leak went to sleep in his truck. (Id. at 6 ll. 17-21.) Leak’s truck was parked in the last slot in the row; there was a truck parked immediately to the left, but no truck on the right. (Id. at 7 l. 17-8 l. 5.) Wadsworth, a driver for Eagle Ridge, pulled into the Pilot truck stop later that evening to take his mandated break and, while looking for a parking spot, altered [*3]  course, causing his truck’s trailer to drag across Leak’s trailer.2 (Wadsworth Trial Testimony at 4 ll. 10-16, 6 ll. 4, 7-16, 7 l. 17-8 l. 23.) As soon as Wadsworth realized his truck had made contact with another truck, he backed up. (Id. at 10 ll. 11-12.) While backing up, Wadsworth’s trailer caused Leak’s truck to move sideways about eighteen inches, causing it to come into contact with the mirror of the truck next to it. (Id. at 11 ll. 10-14.)

 

2   The defendants admit liability for the accident [90].

When Wadsworth’s truck collided with Leak’s, Leak was awoken by a loud bang and found the cabin of his truck shaking. (Leak Trial Testimony at 8 ll. 22-23.) He immediately got out of bed and fell backwards because the truck was still shaking. (Id. at 9 ll. 5-6.) Leak got up and made his way to the front of the truck, looked out the driver’s window, and saw that another trailer had hit his truck. (Id. at ll. 9-22.) When Wadsworth put his truck in reverse and dragged Leak’s truck, Leak lost his balance and fell backwards again. (Id. at 10 ll. 9-17.) Leak got up and “felt a sharp pain” in his back and got out of the truck to assess the damage. (Id. at 11 ll. 2-10.) Leak then went back to his truck and called emergency personnel. (Id. at 14 ll. 2-3.) An EMT arrived ten to fifteen minutes later and [*4]  asked whether Leak wanted to go to the hospital. (Id. at ll. 6-17.) Leak told the EMT that he had hit his head and “had a sharp pain” in his back and wanted to be seen by a doctor. (Id. at ll. 12-20.) Leak was taken to BroMenn Advocate Medical Center, where he received a CT scan. (Id. at l. 22-15 l. 6.) When the CT scan came back clear, Leak was discharged. (Id. at 15 ll. 6-15.) Wadsworth testified that the day of the accident, Leak did not speak to him and that the next day, he observed Leak bending or squatting while looking under the trailer as it was being towed away. (Wadsworth Trial Testimony at 11 ll. 15-18, 12 ll. 12-24.)

 

Medical Treatment

 

Paul Czapar

Czapar was the City of Bloomington paramedic who was dispatched to the Pilot truck stop on the day of the collision. (Czapar Dep. at 11 ll. 7-9, 16 ll. 8-21.) Czapar noted that when he arrived on the scene, Leak was “standing up, walking around . . . [and] did not appear to be . . . injured.” (Id. at 26 ll. 1-3.) While Leak indicated that he wanted to be taken to the hospital, he did not tell Czapar that he was having head, neck, or back pain. (Id. at 27 ll. 9-16.) According to Czapar, Leak walked unassisted to the ambulance. (Id. at 33 ll. 8-21.)

 

Charles Bodem

A few [*5]  days after the accident, Leak’s aunt referred him to the Injury Care Network because he told her he was experiencing back pain. (Leak Trial Testimony at 16 ll. 2-17.) The Injury Care Network connected Leak with Charles Bodem, a chiropractor whom he first saw on May 9, 2013. (Id. at ll. 2-3; Bodem Dep. at 12 ll. 20-22.) Bodem’s notes from that appointment indicate that “[w]hen the patient got up to find out what was going on [during the truck collision], he lost his balance and fell backward and landed on his back striking his head on the ground. And then he felt immediate onset of head, neck and lower back pain.” (Bodem Dep. at 13 ll. 10-14.) Bodem’s notes do not indicate that Leak fell twice, and he did not recall Leak so stating. (Id. at 59 ll. 4-7.) Bodem testified that his examination revealed that Leak had “moderate to severe difficulty with his postural transition . . . and reduced active range of motion in his neck . . . and lower back[.]” (Id. at 14 ll. 13-22.) Bodem also noted that Leak had pain in his neck and both sides of his lower back along with muscle spasms in his lower back. (Id. at 15 l. 20-16 l. 1.) Based on Leak’s history and Bodem’s examination, Bodem diagnosed Leak with cervicalgia,3 lumbar radiculitis, [*6] 4 inflammation in the nerve in the lumbar spine, lumbalgia,5 and a head injury. (Id. at 16 ll. 12-14.) That day Leak was treated with electric stem6 and cold packs to reduce inflammation. (Id. at 18 ll. 3-5, 14-15.) Bodem also recommended that Leak have an MRI of his lumbar spine7 and make six chiropractic visits,8 and he referred him to a pain-management doctor. (Id. at 17 ll. 1-5.) Finally, Bodem “took [Leak] off of work for two weeks.” (Id. at 19 ll. 22-23.)

 

3   Bodem defined cervicalgia as neck pain. (Bodem Dep. at 16 ll. 15-16.)

4   Lumbar radiculitis is a term used to describe neurological symptoms for a suspected pinched nerve. (Bodem Dep. at 62 ll. 2-5.)

5   Bodem defined lumbalgia as lower back pain. (Bodem Dep. at 16 ll. 17-18.)

6   Electric stem is an “electrical device that sends electricity into the area that is injured and produces a pain relieving effect.” (Bodem Dep. at 18 ll. 17-19.)

7   Leak had two MRIs on May 15 that were unremarkable, or normal. (Bodem Dep. at 65 ll. 5-18.)

8   Bodem saw Leak 42 times from May 9 to September 5 and accrued approximately $12,000 in costs. (Bodem Dep. at 67 l. 24-68 l. 2, ll. 14-17.)

Leak returned for a follow-up appointment the next day and had electrical stimulation of the lower back, chiropractic manipulation, kinesio taping9 and was also shown lower back and neck exercises. (Id. at 19 ll. 13-16, 21 at ll. 3-5.) Bodem re-examined Leak on May 20, 2013, and reported that the intensity of Leak’s pain had lessened and his ability to move had improved. (Id. at 23 l. 13-24 l. 6.) Bodem’s diagnoses remained the same, and he recommended that Leak continue with another month of chiropractic visits and remain off work. (Id. at 24 ll. 9-15, 25 at ll. 11-13.) Bodem examined Leak again on June 18, 2013, and reported that Leak’s pain was reduced and his mobility had improved. (Id. at 27 ll. 4-20.) Leak experienced the worst pain in his lower back.10 (Id. at l. 24.) Bodem recommended an additional [*7]  month of chiropractic visits and that he remain off work. (Id. at 31 ll. 1-11.) At a third examination on July 24, 2013, Leak’s pain and range of motion had again improved. (Id. at ll. 12-21.) Bodem kept Leak off work for another month and recommended continued chiropractic visits. (Id. at 35 at ll. 11-15, 22, 36 ll. 3-5.)

 

9   Kinesio tape is used on the lower back to improve circulation. (Bodem Dep. at 22 ll. 6-11.)

10   At the May 9 examination, Leak rated his back pain an 8 out of 10. (Bodem Dep. at 28 ll. 21-22.) At the June 18 exam, Leak rated his back pain a 6 out of 10. (Id. at 29 ll. 22-24.)

At a visit on July 29, Leak reported an increase in lower back pain. (Id. at 36 l. 22-37 l. 4.) Both Leak and Bodem attributed the pain to an increase in the intensity of the chiropractic exercises in which Leak was engaging, and Bodem lessened the intensity of the exercises. (Id. at 37 ll. 5-15.) At Leak’s August 29th visit, Bodem referred Leak for a Needle EMG11 and at an exam in September, Leak reported his back pain as the same intensity as the July 29 visit. (Id. at ll. 23-24, 40 l. 14.) Bodem testified that he believed Leak’s injuries, pain, need to stay off work, and the course of treatment he recommended were caused by the accident on May 7, 2013. (Id. at 45 ll. 18-47 l. 24.) Bodem discharged Leak from his care on September 5, 2013. (Id. at 73 ll. 3-6.)

 

11   An EMG (electromyography) is a diagnostic technique for recording the extracellular activity of skeletal muscles at rest, during voluntary contractions, and during electrical stimulation. Dorland’s Illustrated Medical Dictionary (32nd ed. Elsevier Saunders 2012), available at www.dorlands.com (last accessed June 29, 2017).

 

Dr. Axel Vargas

Vargas first saw Leak on May 15, 2013 at the Chicago Pain Orthopedic Institute [*8]  upon a referral from Charles Bodem. (Vargas Dep. at 14 ll. 16-22, 53 ll. 19-23.) At that appointment, Leak reported that he had fallen off the cab bed, hitting his head and lower back when another truck collided with his. (Id. at 16 ll. 5-13.) He also complained of sharp, shooting lower back pain that radiated to his upper legs, as well as non-radiating neck pain. (Id. at 18 ll. 15-23.) Vargas’s impression was that Leak had lumbrosacral and cervical facet12 pain syndrome. (Id. at 22 ll. 11-13.) Vargas recommended a facet joint injection to confirm the diagnosis. (Id. at ll. 17 21.) Leak’s complaints of pain remained the same when he next visited Vargas on June 13, and Vargas again recommended diagnostic facet joint injections. (Id. at 23 ll. 14-21.) Leak finally received the facet joint injection on July 2, 2013. (Id. at 25 ll. 18-23.) When Vargas saw Leak for a follow-up appointment on July 25, Leak reported that he had experienced substantial relief for approximately ten days after the injection. (Id. at 26 ll. 19-20, 27 ll. 2-9.) Vargas stated that this report confirmed his diagnosis, and he then recommended that a medical branch nerve block be administered in two phases. (Id. at 28 ll. 14-22.) Leak received the first medical branch block on [*9]  August 6 and the second on September 5. (Id. at 29 ll. 16-20, 30 ll. 6-11.) The first branch block decreased Leak’s pain for approximately ten days. (Id. at 31 ll. 3-8.) The second branch block, which used a different numbing agent, also decreased Leak’s pain and lasted approximately two days. (Id. at ll. 9-16.) Based on those results, Vargas recommended that Leak undergo radiofrequency ablation.13 (Id. at ll. 20-22.) At a visit on October 25, Leak remained the same, and on November 5 and 26, he underwent the radiofrequency ablation. (Id. at 32 ll. 12-17, 33 ll. 8-10, 34 ll. 6-8.)

 

12   A facet is a type of joint. This particular joint connects the upper and lower back. (Vargas Dep. at 23 ll. 3-11.) It controls some of the motion of the spine. (Andersson Oct. 2016 Dep. at 9 ll. 17-19.)

13   Radiofrequency ablation is a pain-management technique during which high-frequency, low-intensity current is administered to a specific area to stop pain transmission in the nerves. (Vargas Dep. at 29 ll. 6 10.)

Vargas saw Leak next on January 8, 2014, when he reported that a few days after the ablation, he had experienced “clear and sustained” improvement in his back pain. (Id. at 34 ll. 16-24.) Leak further reported that four weeks prior to the visit, most of his initial back pain symptoms had returned because of a near fall. (Id. at 35 ll. 6-10.) Vargas noted that Leak complained of lower back pain shooting into his extremities that was not present at previous visits. (Id. at 35 l. 23-36 l. 15.) Vargas attributed the shooting pain to the near fall and recommended that Leak meet with a neurologist. (Id. at 36 l. 16-37 l. 1.) Leak had an MRI on January 14, which revealed disc [*10]  protrusion that had not been present on prior MRIs. (Id. at 37 ll. 9-11, 83 ll. 6-17.) At a visit on January 30, Vargas performed a diagnostic lumbar discogram.14 (Id. at 38 ll. 5-7.) At a follow-up visit on February 14, Leak again complained of back pain shooting into his extremities, and Vargas repeated his recommendation of neurological treatment. (Id. at 39 ll. 16-24.) Dr. Dickson, a neurosurgeon, evaluated Leak on March 12 and recommended a laminectomy15 of a specific disc, which Leak opted not to undergo. (Id. at 40 ll. 12-16.) Leak saw Vargas again on April 11 and for the last time on June 13 and continued to report back pain shooting into his extremities. (Id. at 40 l. 7, 41 ll. 2-5.) According to Vargas, Leak’s pain and injuries were caused by the May 7, 2013 collision. (Id. at 41 l. 17-42 l. 4.)

 

14   The purpose of this diagnostic test is to correlate the patient’s pain with a specific disc. (Vargas Dep. at 38 ll. 9-12.)

15   A laminectomy is the excision of the posterior arch of a vertebra. Dorland’s Illustrated Medical Dictionary (32nd ed. Elsevier Saunders 2012), available at www.dorlands.com (last accessed June 29, 2017).

 

Dr. Gunner Andersson

Leak first saw Andersson on August 27, 2013, for an independent medical evaluation at the request of Leak’s employer. (Andersson Jan. 2016 Dep. at 10 ll. 4-8, 11 ll. 2-3, 54 ll. 1-10.) Andersson reviewed Leak’s May 2013 MRIs and concluded that they were normal for a twenty-six year old. (Id. at 13 ll. 10-24.) Andersson also testified that based on the MRIs, he [*11]  found no abnormalities in Leak’s facet joints, and he did not agree with the conclusion that Leak needed facet joint injections. (Id. at 22 ll. 8-18.) Andersson’s examination of Leak revealed almost normal flexion, but he could not fully extend his back. (Id. at 26 ll. 3-13.) Part of Andersson’s evaluation noted that “[Leak] still complains of low back pain and has a mild decreased range of motion, but his MRI scans are completely normal.” (Id. at 28 ll. 5-7.) Andersson concluded that the injections were unnecessary,16 but that Leak should have received physical therapy. (Id. at 29 ll. 7-10.) Andersson further testified that the treatment Leak sought after the accident was not unreasonable. (Id. at 60-64.)

 

16   While Andersson testified that he disagreed with the choice of Leak’s treatment, he did not think it was unreasonable to treat him. (Andersson Jan. 2016 Dep. at 64 ll. 15-23.)

Andersson saw Leak again on February 18, 2014. (Id. at 33 ll. 18-21.) At that examination Leak complained of lower back and leg pain, a progression that surprised Andersson. (Id. at 34 ll. 2-11.) Leak reported his near fall to Andersson, stating that his symptoms had increased and that he was back to the level of pain that he had before the radiofrequency ablation. (Id. at 37 ll. 15-18, 38 ll. 3-9; Andersson Oct. 2016 Dep. at 37 ll. 11 18.) Andersson reviewed Leak’s January 2014 MRI and noted the disc protrusion, which he says indicated a mild degenerative [*12]  change. (Andersson Jan. 2016 Dep. at 38 ll. 13-24.) Andersson testified that he did not think that the symptoms Leak was having in February 2014 related to the May 2013 accident because they were different from the symptoms he described at the August 2013 exam.17 (Id. at 46 ll. 5-13; Andersson Oct. 2016 Dep. at 41 l. 22-42 l. 1.) Andersson further testified that Leak did not need surgery or any additional treatment or medication and that he had likely reached “maximum medical improvement” by October 2013 and was well enough to return to work. (Andersson Jan. 2016 Dep. at 48 ll. 5-24; Andersson Oct. 2016 Dep. at 42 ll. 11-18.) Andersson stated that he expected someone like Leak, with a moderate lumbar cervical strain, to recover in six to twelve weeks and that Leak appeared not to have responded well to treatment. (Andersson Jan. 2016 Dep. at 82 ll. 2-23.)

 

17   Andersson also testified that he did not think the near fall resulted in a change of symptoms. (Andersson Jan. 2016 Dep. at 69 ll. 11-13.)

 

Dr. Sean Salehi

Salehi saw Leak on May 27, 2014 for an initial consult as a referral from Dr. Vargas.18 (Salehi Dep. at 9 ll. 12-14, 12 ll. 3-5.) Salehi reviewed Leak’s three MRIs and indicated that the two taken on May 15, 2013 were normal and that the third, taken on January 14, 2014 revealed a bulging disc. (Id. at 23 l. 6-24 l. 11.) Salehi opined that [*13]  it was more likely than not that the disc bulge was caused by the May 7 accident.19 (Id. at 26 l. 24-27 l. 2.) Salehi also noted that at the time of his examination, Leak weighed 309 pounds and had a BMI of 45.8 and that his weight was a contributing factor to the disc bulge and his pain.20 (Id. at 16 ll. 23-24, 28 ll. 10-22.) Salehi did not recommend that Leak undergo surgery, and he did not see Leak again after the initial consult. (Id. at 28 l. 23-29 l. 1, 39 ll. 10-12.)

 

18   At trial, Leak testified that he saw Salehi for a second opinion because Dr. Dickson had recommended “a very serious back surgery, and [he] did not know if that was the path [he] wanted” to take. (Leak Trial Testimony at 21 ll. 2-5.) He also testified that Salehi was not referred by any other physicians. (Id. at 71 ll. 20-24.)

19   Salehi stated that the injury was subtle a week after the accident and so likely did not appear on the initial MRIs. (Salehi Dep. at 33 ll. 15-22.)

20   A BMI of 45.8 indicates that a person is morbidly obese. (Salehi Dep. at 17 ll. 17-19.)

 

2013 Slip

Sometime after the ablations in November 2013, Leak slipped on wet or icy ground. (Leak Trial Testimony at 22 ll. 9-13.) After the slip, Leak testified that the pain “aggressively came back” and that pain lasted three to four months. (Id. at 23 ll. 9-10, 24 ll. 16-20.) After that period of time, Leak testified that his pain returned to the baseline level it had been before the slip. (Id. at 25 ll. 3-11.)

 

Medical Bills

Leak asserts that the following expenses were incurred during the course of his treatment for the injuries he suffered as a result of the May 7, 2013 collision: (1) ambulance services from the Pilot truck stop to Advocate BroMenn Medical Center: $603.25 (Pl.’s Ex. 4); (2) emergency room care and testing at Advocate BroMenn Medical Center: $2,432 [*14]  (Pl.’s Ex. 5); (3) unknown services at Pinnacle Pain Management in January 2015: $475 (Pl.’s Ex. 6); (4) two MRIs on May 15, 2013: $4,207 (Pl.’s Ex. 7); (5) treatment by Charles Bodem: $18,307.3621 (Pl.’s Ex. 8); (6) emergency room care and pain medication at Edward Hospital in Naperville in July 2013:22 1,464 (Pl.’s Ex. 9); (7) physical therapy recommended by Dr. Andersson: $1,917.0723 (Pl.’s Ex. 10); (8) January 2014 MRI: $1,300 (Pl.’s Ex. 11); (9) January 2014 lumbar discogram: $1,715 (Pl.’s Ex. 12); (10) treatments ordered by Dr. Vargas at Chicago Pain and Orthopedic Institute: $17,066.0924 (Pl.’s Ex. 13); (11) pain management treatment ordered by Dr. Vargas at Accredited Ambulatory Care: $90,719.83 (Pl.’s Ex. 14); (12) medical transportation to procedures ordered by Dr. Vargas: $598 (Pl.’s Ex. 15); (13) anesthesia provided by Metro Milwaukee Anesthesia: $8,691.73 (Pl.’s Ex. 17); (14) hot and cold therapy machine rental prescribed by Dr. Vargas: $7,225 (Pl.’s Ex. 18); and (15) medication from February 2014 to October 2014: $13,670.02 (Pl.’s Ex. 19). Leak asserts that the reasonable and necessary medical expenses he incurred total $170,479.35.25 (Pl.’s Post-Trial Br. at 4.) It was established [*15]  at trial that $74,475.19 of that medical care was paid as part of Leak’s workers’ compensation case. (Id. at 5; Pl.’s Ex. 36.)

 

21   By the Court’s calculation, the charges reflected in plaintiff’s Exhibit 8 total $18,361.31.

22   Plaintiff testified that he went to Edward Hospital for a refill of pain medication because he could not get an appointment with Dr. Vargas for a refill. (Leak Trial Testimony at 32 ll. 16-21.)

23   Exhibit 10 indicates that the physical therapy invoice was $1,971.07.

24   By the Court’s calculation, the claim forms submitted as part of plaintiff’s Exhibit 13 total $16,763.08.

25   When the Court tallied the expenses claimed by plaintiff as laid out in his post-trial brief, the total was $170,391.35.

 

Time out of Work

Leak’s employment with Schneider was terminated on May 5, 2014. (Pl.’s Ex. 36.) Leak testified that he missed close to two and a half years of work recovering from the accident. (Leak Trial Testimony at 25 ll. 17-23.) He testified that the pain medications as well as having to be seated for long periods of time made it impossible for him to drive a truck. (Id. at 25 l. 21 26 l. 3.) Leak also testified that after the accident he was no longer able to walk for long periods of time, bowl, or go skating with his family. (Id. at 26 l. 21-27 l. 3.) He further stated that he had difficulties caring for his children and completing household chores. (Id. at 27 ll. 4-10.) Leak and his wife conceived a baby in August 2013, who was born in May 2014. (Id. at 64 ll. 2-9.) Leak cared for the newborn and his young stepdaughter until June 2015 while his wife worked. (Id. at ll. 11-20.) He testified that a neighbor and his aunt occasionally helped him with childcare. (Id. at 77 ll. 1-6.) Leak went back to work as a truck driver for All Access Trucking in August 2015. (Id. at 28 ll. 18-23.) He worked there through August [*16]  2016, when he started working for FAB Express as a truck driver. (Id. at 29 ll. 5-6, 30 ll. 3-10.)

 

Workers’ Compensation Benefits Paid by Schneider

At the time of the accident, Leak testified that he was making about $900 a week, or about $47,000 annually. (Leak Trial Testimony at 61 ll. 6-14.) From his start day with Schneider (August 15, 2012) through the date of the accident (approximately thirty-eight weeks), Leak made $34,140.07. (Pl.’s Ex. 36.) Leak was paid temporary total disability benefits of $616.20 each week from May 8, 2013 through March 10, 2014, for a total of $24,613.43. (Id.; Leak Trial Testimony at 72 ll. 10-14.) Schneider paid an additional $74,475.19 for Leak’s medical care.26 (Leak Trial Testimony at 72 ll. 22-25.) Finally, Leak was paid $54,487.4927 to settle his workers’ compensation claim. (Id. at 73 ll. 4-9; Pl.’s Ex. 36.) In sum, Schneider has a $153,576.11 workers’ compensation lien28 as a result of this accident. (Pl.’s Ex. 36.)

 

26   Based on a review of plaintiff’s Exhibit 36, it appears that Schneider paid some of Leak’s medical bills through his termination in May 2014.

27   Approximately $14,000 of the settlement went to attorney’s fees. (Leak Trial Testimony at 77 ll. 16 20.) Leak kept $40,000 of the settlement. (Id.) Schneider classified this payment as permanent partial disability benefits. (Pl.’s Ex. 36.)

28   “[S]ection 5(b) of the Workers’ Compensation Act (820 ILCS 305) [includes a] provision that an employer who has paid worker’s compensation benefits to its injured employee is entitled to a lien against the employee’s subsequent personal injury award for the injury.” Mitchell v. Atwood Enters. Inc., 253 Ill. App. 3d 475, 624 N.E.2d 878, 882, 191 Ill. Dec. 690 (Ill. App. Ct. 1993).

 

CONCLUSIONS OF LAW AND APPLICATION OF FACTS TO LAW

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1). Plaintiff is an Illinois resident seeking in excess of $75,000 in damages, and defendants are an Idaho citizen and an Idaho corporation. (Notice of [*17]  Removal ¶¶ 6-8.) “To recover damages based upon negligence, a plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff’s injury.” Krywin v. Chi. Transit Auth., 238 Ill. 2d 215, 938 N.E.2d 440, 446, 345 Ill. Dec. 1 (Ill. 2010). Because defendants have admitted liability, the Court need only discuss causation and damages.

Plaintiff must prove by a preponderance of the evidence that defendant’s negligence was the proximate cause of his injuries. See Knights v. United States, 203 F. Supp. 3d 916, 927 (N.D. Ill. 2016) (citing Barnett v. Ludwig & Co., 2011 IL App (2d) 101053, 960 N.E.2d 722, 730, 355 Ill. Dec. 840 (Ill. App. Ct. 2011)). “Proximate cause is ‘that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the results would not have occurred.'” Fowler v. United States, No. 08 C 02785, 2014 U.S. Dist. LEXIS 21742, 2014 WL 683751, at *12 (N.D. Ill. Feb. 21, 2014) (quoting FDIC v. Bierman, 2 F.3d 1424, 1434 (7th Cir. 1993)). The evidence shows that the collision was the proximate cause of Leak’s injuries. Plaintiff testified that immediately after the collision he fell and had a sharp pain in his back. He contacted emergency personnel the day of the accident and two days later sought additional treatment. All of the medical professionals who treated Leak, including Dr. Andersson, concluded that plaintiff’s pain and injuries before the slip were caused by the May 7, 2013 collision. Defendants attempt to discredit plaintiff [*18]  by contradicting his testimony that he fell twice during the collision and had immediate pain, with his treaters’ testimony that plaintiff did not report two falls and the EMT’s testimony that plaintiff did not report head, neck, or back pain at the scene of the accident. (See Defs.’ Post-Trial Br. at 3-8, 12.) While the Court notes the inconsistencies, it finds, particularly in light of the consensus among plaintiff’s treaters, that plaintiff has proven by a preponderance of the evidence that the May 7 collision caused his pain and injuries.

Further, the Court finds that plaintiff’s slip in late 2013 does not serve as an intervening event that breaks the causal chain. “Every natural consequence that flows from an injury . . . is compensable, unless caused by an independent intervening accident that breaks the chain of causation[.]” Vogel v. Indus. Comm’n, 354 Ill. App. 3d 780, 821 N.E.2d 807, 812, 290 Ill. Dec. 495 (Ill. App. Ct. 2005). The Illinois Appellate Court “has recognized repeatedly that, when the [plaintiff’s] condition is weakened by a work-related accident, a subsequent accident that aggravates29 the condition does not break the causal chain.” Id. at 813. Moreover, “[i]t is irrelevant whether other incidents, work-related or not, may have aggravated [the plaintiff’s] condition.” Glister-Mary Lee Corp. v. Ill. Workers’ Comp. Comm’n, 2015 IL App (5th) 140241WC-U, 2015 WL 1816529, at *6 (Ill. App. Ct. 2015). [*19]  “Whether a causal connection exists between the [plaintiff’s] condition and a particular . . . accident is a question of fact.” Nat’l Freight Indus. v. Ill. Workers’ Comp. Comm’n, 2013 IL App (5th) 120043WC, 993 N.E.2d 473, 481, 373 Ill. Dec. 167 (Ill. App. Ct. 2013). The factfinder “determines which medical opinion to accept regarding causation, and it may attach greater weight to the treating physician’s opinion.” Glister-Mary Lee Corp., 2015 IL App (5th) 140241WC-U, 2015 WL 1816529, at *6.

 

29   Defendants characterize the slip as an aggravating event. (Defs.’ Post-Trial Br. at 4.)

When Leak first saw Dr. Vargas after the slip, he complained of increased pain, but testified that after about three or four months, his pain level was the same as it had been before the slip. Even though the MRI taken after the slip indicated a slight disc protrusion where there had not been one before, Dr. Salehi testified the protrusion would likely not have appeared on the initial MRIs because they were taken so soon after the accident. Moreover, Dr. Andersson testified that the difference in the January 2014 MRI was slight and reflected normal degenerative change in someone of Leak’s age. Accordingly, the Court concludes that Leak’s slip in late 2013 was not an intervening event that broke the causal chain. See Steele v. Ill. Workers’ Comp. Comm’n, 2016 IL App (1st) 143665WC-U, 2016 WL 562938, at *8-9 (Ill. App. Ct. 2016) (finding that a subsequent, minor car accident did not break the causal [*20]  chain because plaintiff’s symptoms and pain did not change and a second MRI indicated no material change).

 

Medical Expenses

Plaintiff “is entitled to recover reasonable medical expenses that are causally related to the accident and that are determined to be required to diagnose, relieve, or cure the effects of [the] injury.” F & B Mfg. Co. v. Indus. Comm’n of Ill., 325 Ill. App. 3d 527, 758 N.E.2d 18, 24, 259 Ill. Dec. 173 (Ill. App. Ct. 2001). Plaintiff “has the burden of proving that the medical services were necessary and the expenses incurred were reasonable.” City of Chi. v. Ill. Workers’ Comp. Comm’n, 409 Ill. App. 3d 258, 947 N.E.2d 863, 870, 349 Ill. Dec. 849 (Ill. App. Ct. 2011). “What is reasonable and necessary is a question of fact[.]” F & B Mfg. Co., 758 N.E.2d at 24.

Bodem and Vargas treated plaintiff on a regular basis after the accident. They both testified that the course of Leak’s treatment was reasonable and necessary. Dr. Andersson, who saw Leak on two occasions, testified that while he disagreed with Leak’s course of treatment before the slip, he did not find it unreasonable. Defendants briefly address damages at the end of their post-trial brief and appear to argue that because plaintiff has not proven the accident caused his injuries, that he is not entitled to damages. (See Defs.’ Post-Trial Br. at 16.) The Court relies on the testimony of the medical professionals who treated Leak regularly and finds that his treatment was both reasonable [*21]  and proximately caused by the collision. Accordingly, the Court awards Leak $160,225.83 for the following in medical expenses: (1) $603.25: City of Bloomington ambulance; (2) $2,432: emergency room care and testing at Advocate BroMenn Medical Center; (3) $4,207: May 15, 2013 MRIs; (4) $11,978.23: treatment by Charles Bodem through September 5, 2013;30 (5) $1,971.07: physical therapy; (6) $1,300: January 14, 2014 MRI; (7) $1,715: January 30, 2014 lumbar discogram; (8) $16,763.08: diagnostics ordered by Dr. Vargas; (9) $90,719.83 for pain management ordered by Dr. Vargas; (10) $598: transportation to two medical procedures ordered by Dr. Vargas; (11) $8,691.73: anesthesia administered for procedures through January 30, 2014; (12) $7,225: equipment rental for hot and cold therapy; and (13) $12,021.64 for pain medication from February to May 2014.31

 

30   Bodem testified that he discharged Leak from his care on September 5, 2013. Accordingly, the Court declines to award anything billed by Bodem, after that date.

31   Dr. Vargas testified that he last treated plaintiff in June 2014. Accordingly, the Court declines to award plaintiff for medication billed after that date.

Finally, the Court declines to award plaintiff costs for emergency room care he received at Edward Hospital in July 2013 and pain medication or services he received at Pinnacle Pain Management in January 2015. Plaintiff testified that he went to the hospital in July 2013 for pain medication because he could not get in to see Dr. Vargas for a refill. [*22]  Without more information, the Court finds it unreasonable for plaintiff to have sought a medication refill at the emergency room merely because he could not get an appointment soon enough with Dr. Vargas. The Court also finds it unreasonable to award plaintiff costs for the pain management bill for unknown services in January 2015 when he was last seen by Dr. Vargas in June 2014.

 

Wage Loss

“[T]he duration of TTD (temporary total disability) is controlled by [plaintiff’s] ability to work and her continuation in the healing process[.] . . . [T]o be entitled to TTD, [plaintiff] must prove not only that [he] did not work, but that [he] was unable to work.” F & B Mfg. Co., 758 N.E.2d at 22. “The time during which a [plaintiff] is temporarily totally disabled, is a question of fact[.]” Id. Leak was making approximately $900 a week at the time of the accident and did not work for Schneider from the date of the accident until his termination a year later. While Andersson testified that Leak was able to return to work by October 2013,32 plaintiff argues that he is entitled to wages through November 2014, the last time he visited Chicago Pain.33 (Pl.’s Post-Trial Br. at 12.) Leak became the primary caregiver for his newborn in May 2014, [*23]  and last saw Dr. Vargas in June 2014. Relying on that evidence and testimony, the Court finds that plaintiff was able to return to work approximately a year after the accident. Accordingly, the Court awards plaintiff a year’s salary–$46,800.

 

32   Leak testified that prior to becoming a truck driver, he held many different jobs including one at Sears loading merchandise and another at Fed Ex as a package handler. (Leak Trial Testimony at 60 ll. 13-24.)

33   There is no testimony that Leak was treated after June 2014.

 

Pain and Suffering

“Under Illinois law, the court must award damages that will reasonably and fairly compensate the plaintiff for the injuries sustained as a result of the defendant’s negligence.” Wolkenhauer v. Smith, 822 F.2d 711, 714 (7th Cir. 1987). “When a federal judge is the trier of fact, he, unlike a jury, is required to explain the grounds of his decision.” Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008). “‘This means, when the issue is the amount of damages, that the judge must indicate the reasoning process that connects the evidence to the conclusion.'” Id. (quoting Jutzi-Johnson v. United States, 263 F.3d 753, 758 (7th Cir. 2001)). In order to meet this requirement, the Seventh Circuit has instructed district judges to consider awards in similar cases despite the fact that the Illinois Supreme Court does not require or encourage such comparisons. Id. at 776-77 (explaining that “Illinois’s rule on comparison evidence in damages cases does not bind the federal courts even in cases . . . where the rule of decision is given by Illinois law”).

Plaintiff and his treaters testified that Leak suffered head, neck, and back [*24]  pain as a result of the accident. (See Pl.’s Post-Trial Br. at 7-8.) The only evidence before the Court about plaintiff’s ongoing pain and suffering is his brief trial testimony in which he stated that his back pain has been constant and at times it is sudden and sharp and other times it is dull. (Leak Trial Testimony at 27 ll. 22-25, 28 ll. 9-11.) Based on a review of other awards in similar circumstances, plaintiff’s subjective complaints of pain, and his general testimony about ongoing pain, the Court awards plaintiff $15,000 in damages for pain and suffering. See Wyletal v. United States, 907 F.2d 49, 51 (7th Cir. 1990) (affirming district court’s award of $10,000 in damages for pain and suffering when an elderly woman collided with a postal worker and broke her hip); Jackson v. United States, No. 97 C 1927, 1999 U.S. Dist. LEXIS 6142, 1999 WL 259948, at *2 (N.D. Ill. Apr. 8, 1999) (awarding plaintiff $45,000 in past and future pain and suffering when he was hit by a postal vehicle, causing a permanent limp and pain); Gregory v. Fed Ex Nat’l LTL, Inc., Case No. 14-cv-572-JPG-RJD, 2016 U.S. Dist. LEXIS 137764, 2016 WL 5746265, at *7 (S.D. Ill. Oct. 4, 2016) (awarding $34,000 in damages for pain and suffering to plaintiff who injured his head, neck, and shoulder and suffered ongoing whiplash as a result of motor vehicle accident); Lee v. Chi. Transit Auth., 2016 IL App (1st) 153281-U, 2016 WL 6672078, at *4 (Ill. App. Ct. 2016) (affirming trial court’s denial of plaintiff’s motion for a [*25]  new trial when the jury awarded no damages for pain and suffering based on plaintiff’s subjective complaints of pain).

 

Loss of Normal Life

“Loss of normal life means ‘the temporary or permanent diminished ability to enjoy life . . . [and] includes a person’s inability to pursue the pleasurable aspects of life.'” Smith v. Altman, No. 12 C 4546, 2015 U.S. Dist. LEXIS 126156, 2015 WL 5610670, at *3 (N.D. Ill. Sept. 21, 2015) (quoting Ocampo v. Paper Converting Mach. Co., No. 02 C 4054, 2005 U.S. Dist. LEXIS 17107, 2005 WL 2007144, at *7 (N.D. Ill. Aug. 12, 2005)). Plaintiff presented limited evidence on loss of a normal life. He testified that he could no longer run, bowl,34 or go skating with his family. (Leak Trial Testimony at 26 l. 24-27 l. 3.) On the other hand, Leak testified that he helped conceive and was the primary caregiver for his newborn baby. Leak further testified that as he “progressed,” he was able to go on family outings such as Disney on Ice and to the Shedd Aquarium and take trips to Wisconsin and Missouri. (Id. at 66 ll. 5-9, 69 ll. 14-17.) In the Court’s view, plaintiff has not proven by a preponderance of the evidence that he experienced the loss of a normal life as a result of the accident. Accordingly, the Court declines to award plaintiff damages for loss of a normal life. See Smith, 2015 U.S. Dist. LEXIS 126156, 2015 WL 5610670, at *6 (reducing a jury’s award of $300,000 for loss of a normal life to $30,000 for a plaintiff who required a year of physical therapy, spinal [*26]  fusion surgery, wore a neck brace for six months, and could no longer attend his children’s musical performances); but cf. Clanton v. United States, Case No. 15-CV-124-NJR-RJD, 2017 U.S. Dist. LEXIS 93996, 2017 WL 2637795, at *21-23 (S.D. Ill. June 19, 2017) (awarding $4,000,000 in damages for past and future loss of normal life when thirty-five year old plaintiff’s treatment for hypertension deviated from applicable standard of care, causing kidney failure, dialysis, a kidney transplant, the likelihood of future transplants and dialysis, and a shortened life expectancy).

 

34   Plaintiff testified that he had not tried to bowl since the accident. (Leak Trial Testimony at 68 ll. 67.)

 

CONCLUSION

For the reasons set forth above, the Court finds in favor of plaintiff and against defendant in the amount of $222,025.83.35

 

35   In arriving at this number, the Court has added the damages awarded for medical expenses ($160,225.83), lost earnings ($46,800), and pain and suffering ($15,000).

SO ORDERED.

ENTERED: June 29, 2017

/s/ Jorge L. Alonso

JORGE L. ALONSO

United States District Judge

NATIONAL LIABILITY & FIRE INSURANCE CO., Plaintiff, v. LP TRUCKING, LLC, et al., Defendants.

 

Civil Action No. 15-5449 (JBS/KMW)

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

 

2017 U.S. Dist. LEXIS 101983

 

 

June 30, 2017, Decided

June 30, 2017, Filed

 

 

COUNSEL:  [*1] For Plaintiff: Diana M. Hendry, Esq., John T. Coyne, Esq., MCELROY, DEUTCH, MULVANEY & CARPENTER, LLP, Morristown, NJ.

 

For Defendants: Richard M. Pescatore, Esq., Vineland, NJ.

 

JUDGES: HONORABLE JEROME B. SIMANDLE, United States District Judge.

 

OPINION BY: JEROME B. SIMANDLE

 

OPINION

SIMANDLE, District Judge:

 

1. INTRODUCTION

Presently before the Court are the motions for summary judgment by Plaintiff National Liability & Fire Insurance Co. (hereinafter, “Plaintiff” or “NLF”) [Docket Item 38], as well as Defendants’ LP Trucking, LLC (hereinafter, “LP Trucking”) and Lionel Powell (hereinafter, “Defendant Powell”)(collectively, “Defendants”) motion to dismiss Plaintiff’s Complaint [Docket Item 56.]1 Having considered the parties’ submissions and oral argument, for the reasons set forth below, the Court will grant Defendants’ motion to dismiss because it lacks declaratory judgment jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiff’s motion for summary judgment will therefore be dismissed without prejudice.

 

1   The Court will also address Defendant’s motion “granting leave to defendant to supplement previous opposition.” [Docket Item 64.]

 

1. BACKGROUND2

 

2   For purposes of the pending motion, the Court accepts as true the version of events set forth in Plaintiffs’ Complaint, documents explicitly relied upon in the Complaint, and matters of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

This insurance coverage dispute between NLF and Defendants arose out of a purported cancellation of a truckers insurance policy by Defendants’ agent, Lasting Legacy.3 NLF issued the policy to LP [*2]  Trucking that incepted on May 23, 2014. (Compl. at ¶ 13.) The quoted premium for the policy was $14,380, which was based on Defendant Powell’s representation that he had zero motor vehicle points, but after the policy was issued, NLF determined that Powell actually had seven motor vehicle points, so NLF adjusted the premium to $28,321. (Id. at ¶¶ 15-17.) Lasting Legacy and Defendant Powell requested that NLF reevaluate the magnitude of the premium increase, and NLF then revised the premium amount to $23,194. (Id. at ¶ 19.) Defendants, apparently unwilling to pay the adjusted premium of $23,194, opted to cancel the policy via a cancellation request on June 10, 2014. (Id. at ¶¶ 20, 22.) Lasting Legacy, Defendants’ agent, emailed to the Tuscano Agency, NLF’s agent, a cancellation request purported signed by Powell, and in response, NLF cancelled the policy effective at 12:01 a.m. on June 11, 2014. (Id. at ¶¶ 22-24.) Defendants claim that Lasting Legacy fraudulently signed the cancellation form. [Docket Item 56-1 at ¶ 3.]

 

3   The parties are diverse under 28 U.S.C. § 1332.

On June 11, 2014, at approximately 3:30 a.m., Defendant Powell was involved in a motor vehicle accident with Shawn Virgillo, and on July 3, 2014, Virgillo filed an action [*3]  (hereinafter, “the Underlying Action”) against LP Trucking and Powell, among other parties. (Id. at ¶¶ 25, 27.) NLF offered to defend LP Trucking and Powell subject to a written reservation of rights letter dated December 15, 2014. (Id. at ¶ 30.)

On July 10, 2015, Plaintiff filed a one-count Complaint in this Court requesting a declaratory judgment “that the cancellation of the NLF Policy at LP Trucking’s request became effective on June 11, 2014 at 12:01 a.m. and that, accordingly, NLF has no obligation to defend or indemnify LP Trucking or Powell against the claims asserted in the Underlying Action or any other proceedings that may arise from the Accident.” (Compl. at ¶ 28.) NLF included LP Trucking, Defendant Powell, and Shawn Virgillo as Defendants in the federal action, but did not include Lasting Legacy.4

 

4   NLF also included South State, Inc., Rochdale Insurance Company, Government Employees Insurance Company, and Western United Insurance Company, but all of those parties have since been dismissed from this action.

Then, on November 24, 2015, Powell and LP Trucking filed a complaint in Cumberland County Superior Court against Lasting Legacy, alleging negligence and fraud. Powell and LP Trucking amended their complaint on April 19, 2016, adding Jenna Zeringo as a Defendant. Since neither LP Trucking nor Defendant Powell notified NLF of the underlying action involving Virgillo (Compl. at ¶ [*4]  28), LP Trucking’s initial state court actions did not include NLF. However, On July 22, 2016, Powell and LP Trucking amended their complaint again and filed a properly styled declaratory judgment action against NLF, Jenna Zeringo, Virgillo, AAA Midlantic, GEICO, NJM a/s/o Mary Dampf, Rochdale Ins. Co. and Western Union Ins. Co. (Ex. C. to Def. MTD Br.)

As the federal court case progressed through discovery and through summary judgment motion practice,5 ongoing discovery in the state court matter revealed a possibility of a conflict of interest. NLF’s counsel had participated in the negotiations and mediation of the underlying action with Virgillo by negotiated the terms and conditions of a release agreement which included a payment of nearly $200,000. [Docket Item 56-8 at 26] NLF then filed a counterclaim against Powell for reimbursement of the settlement money “which [NLF counsel] negotiated and . . . had authorized,” despite no language in any of the reservation of rights letters (Ex. G to Def. MTD Br) regarding the reimbursement of indemnity monies. [Docket Item 64-6 at 43.] NLF also filed a motion for summary judgment “based on the theory of apparent authority.” [Docket Item 64-6 [*5]  at 41.] The state court judge held a hearing on Powell’s motion to disqualify counsel and NLF’s motion for summary judgment on January 20, 2017, [Docket Item 64-6 at 39.]

 

5   NLF filed a motion for summary judgment on its declaratory judgment claim in this action on September 9, 2016. [Docket Item 38.]

On February 17, 2017, in light of evidence that a lawyer from NLF’s law firm had represented both Powell and NLF, the state court judge entered an order disqualifying the McElroy Deutch Mulvaney and Carpenter law firm from representing NLF in the state court matter because of this alleged conflict of interest. [Docket Item 54; Docket Item 64-5.]6 The state court judge explained that he “has concerns about how this went down and [he thinks] they need to get out.” [Docket Item 64-5.] NLF appealed this disqualification ruling, and that appeal is currently pending in the Appellate Division. The state court judge also denied NLF’s motion for summary judgment “for several reasons,” given the disqualification of the firm of NLF’s counsel, and that “discovery is still outstanding and ongoing.” [Id.; Ex. B to Docket Item 63.]7 The judge further found that “the issues of apparent authority are fact sensitive and . . . involve issues of intent and credibility which are normally issues to be decided by the fact finder as opposed [*6]  to on a motion for summary judgment.” [Ex. B to Docket Item 63.] Additionally, the judge found that there are issues “with regard to authenticity of a cancellation notice that no premium refund occurred after the purported cancellation,” and there are issues “with regard to whether a cancellation notice was faxed to Powell . . . and back.” [Id.]

 

6   The state court judge explained that this conflict of interest ruling did not affect the federal court action. [Docket Item 64-6 at 75.]

7   Discovery does not end in the state case until October 25, 2017. [Ex. B to Docket Item 63.]

On February 21, 2017, Defendants then requested that this Court hold summary judgment in abeyance given the denial of NLF’s summary judgment in the state declaratory judgment action. [Docket Item 54.] Then, on March 21, 2017, Defendants filed a motion to dismiss Plaintiff’s Complaint based on the Colorado River abstention doctrine. [Docket Item 56.]

 

III. STANDARD OF REVIEW

 

1. Rule 12(b)(1)

As courts of limited jurisdiction, the federal courts may only exercise jurisdiction over cases which the Constitution and Congress expressly grant them power. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010). A motion to dismiss under Fed. R. Civ. P. 12(b)(1) must be granted if the court lacks subject matter jurisdiction to hear a claim. In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). When a defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction for the sake of remaining in federal court. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

Under Rule 12(b)(1), the court’s jurisdiction may be challenged [*7]  either facially (based on the legal sufficiency of the claim) or factually (based on the sufficiency of a jurisdictional fact). Gould, 220 F.3d at 178; see also A.D. v. Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 334 (D.N.J. 2015) (stating same). In considering a factual attack, as here, the Court need not cabin its inquiry to allegations in the complaint. Rather, the Court may “consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction.” Gotha v. U.S., 115 F.3d 176, 179, 36 V.I. 392 (3d Cir. 1997); see also Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891-92 (3d Cir. 1977).

 

1. Rule 56

With respect to Plaintiff’s motion for summary judgment, Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact” such that the movant is “entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact exists where a reasonable jury’s review of the evidence could result in “a verdict for the non-moving party” or where such fact might otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Disputes over irrelevant or unnecessary facts, however, fail to preclude the entry of summary judgment. Id. Conclusory, self-serving submissions cannot alone withstand a motion for summary judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (internal citations omitted).

In evaluating a motion for summary judgment, the Court must view the [*8]  evidence in the light most favorable to the non-moving party, and must provide that party the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). However, any such inferences “must flow directly from admissible evidence [,]” because “‘an inference based upon [] speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment.'” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990); citing Anderson, 477 U.S. at 255).

 

1. DISCUSSION

 

1. Defendants’ Motion to Dismiss

 

1. Colorado River abstention

The Court first addresses Defendants’ motion to dismiss. Defendants argue that Plaintiff’s Complaint should be dismissed under the Colorado River abstention doctrine, see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), as Plaintiff’s claim here is identical to the one presented in New Jersey Superior Court. Plaintiff replies that the Court should not abstain because the suits are not parallel actions, as the state court case was brought a year after the federal case.

In general, “federal courts are obligated to decide cases within the scope of federal jurisdiction.” Sprint Communications, Inc. v. Jacobs,     U.S.    , 134 S. Ct. 584, 588, 187 L. Ed. 2d 505 (2013). However, “in certain circumstances . . . the prospect of undue interference with state proceedings counsels against federal relief.” Id. To prevent such interference, various judge-made doctrines of abstention have [*9]  developed, whereby the federal courts decline to exercise jurisdiction otherwise granted them by the Constitution or federal statute. In Colorado River, the Supreme Court found that abstention might be warranted in some “extraordinary” circumstances where there are parallel state and federal proceedings, under principles of “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Colorado River, 424 U.S. at 817.

First, a court must determine whether the two proceedings are “parallel.” Two proceedings generally are considered parallel when they “involve the same parties and substantially identical claims, raising nearly identical allegations and issues,” Yang v. Tsui, 416 F.3d 199, 204 n. 5 (3d Cir. 2005) (citation and internal quotation marks omitted), and when plaintiffs in each forum seek the same remedies, see Harris v. Pernsley, 755 F.2d 338, 346 (3d Cir. 1985). In the state court declaratory judgment action, LP Trucking and Defendant Powell (as Plaintiffs) “seek[] a determination as to the construction and/or validity of the insurance policy issued by the defendant-National and/or the validity or invalidity of an alleged cancellation notice forwarded to the defendant insurance company and, in particular, confirmation of benefits associated [*10]  with indemnification for a motor vehicle accident.” (Ex. C. to Def. MTD Br. at ¶ 5.) LP Trucking and Powell also alleges that NLF “has breached the terms and conditions of their insurance policy and/or statutory obligations and have failed to honor LP Trucking’s request for coverage, including indemnification from and against any and all claims arising out of the underlying motor vehicle accident. (Id., ¶ 6.)

NLF argues that the proceedings are not parallel because the state court case was originally solely a malpractice action against Lasting Legacy, not a declaratory judgment case, and that the state court case includes additional parties not present in the federal court action. (Opp’n at 4-5.) However, LP Trucking properly amended its complaint to include NLF, and the case has proceeded with NLF as a party since July 22, 2016. Currently, both the state and federal actions involve NLF, LP Trucking, and Defendant Powell. While the state court action includes two additional parties, Lasting Legacy and Ms. Zeringo, given that both cases are declaratory judgment actions seeking to determine whether Defendant Powell’s cancellation was valid, the Court finds that the parties are sufficiently [*11]  parallel.8 See IFC Interconsult AG v. Safeguard Intern. Partners, LLC, 438 F.3d 298, 306 (3d Cir. 2006)(“We have never required complete identity of parties for abstention.”); Perry v. Manor Care, Inc., No. 05-5767, 2006 U.S. Dist. LEXIS 47861, 2006 WL 1997480, at *3 (E.D. Pa. July 14, 2006)(holding that “federal and state cases are sufficiently parallel if all the parties in the federal case are also parties in the state case, even if the state case involves additional parties”).

 

8   NLF also argues that the actions are not parallel because NLF has no claims at all against Lasting Legacy and Zeringo. But a properly styled declaratory judgment action exists between NLF and LP Trucking/Defendant Powell exists in the state court action, and the existence of Lasting Legacy and Zeringo as parties will not affect the Court’s eventual resolution of the apparent authority issue.

Additionally, state and federal claims are parallel when “the state litigation will dispose of all of the claims raised in the federal case.” Spring City Corp v. American Bldgs. Co., 193 F.3d 165, 171 (3d Cir. 1999). There is no question that resolution of the declaratory judgment action in state court would dispose of the declaratory judgment action in this court. Finally, there is an identity of time between the two actions because both lawsuits arise from the question of apparent authority of Lasting Legacy to cancel Defendant Powell’s policy on June 10, 2014, and the resulting reservation of rights from NLF. Given that there are identities of parties, claims and time, the Court finds that the two actions are sufficiently parallel, thereby meeting the first step of Colorado River.

Once a federal court determines that two proceedings are parallel, the Third Circuit instructs the court to consider the following pertinent factors, drawn from the Colorado River case: “(1) in an in [*12]  rem case, which court first assumed jurisdiction over the property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained; (5) whether federal or state law controls; and (6) whether the state court will adequately protect the interests of the parties.” Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 308 (3d Cir. 2009).

On balance, the Court finds that abstention under the Colorado River doctrine is not appropriate in this instance. The first factor is neutral because this is not an in rem case. The second factor, the alleged inconvenience of the federal forum, provides little, if any, support for abstention. The federal courthouse in Camden is only forty miles from the Bridgeton, Cumberland County courthouse where the state proceedings were filed and where the parties are based. Additionally, Bridgeton lies within the vicinage of the federal court in Camden. There is therefore little practical inconvenience for the parties to litigate in Camden; thus, this factor weighs against abstention. See Golden Gate Nat. Sr. Care, LLC v. Minich ex rel. Estate of Shaffer, 629 F. App’x 348, 351 (3d Cir. 2015) (characterizing the seventy-mile distance between the federal and state courthouses as “moderate additional travel time required for the few in-court appearances that [*13]  that the parties may wish to attend”).

The third factor, the desirability of avoiding piecemeal litigation, weighs against abstention. The Third Circuit takes a narrow view of this factor, as “there must be a strongly articulated congressional policy against piecemeal litigation in the specific context of the case under review.” Ryan v. Johnson, 115 F.3d 193, 198 (3d Cir. 1997). Accordingly, “[t]he presence of garden-variety state law issues has not, in this circuit, been considered sufficient evidence of a congressional policy to consolidate multiple lawsuits for unified resolution in the state courts.” Id. The Ryan court emphasized that a broad interpretation of the “avoidance of piecemeal litigation” factor would “swallow[ ] up the century-old principle” that “pendency of an action in state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction ….” Id. at 198 (quoting Colorado River, 424 U.S. at 817). Here, Defendants identify no congressional policy indicating any intended avoidance of piecemeal litigation in this area of the law.

The next factor, the order in which jurisdiction was obtained, also weighs against abstention. This prong is “not a strict first-past-the-post test,” but rather, the Court reviews “both the filing date [*14]  and the advancement of the litigation in each forum.” Golden Gate, 629 F. App’x at 351 (citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983)). Here, the federal action was filed on July 10, 2015, whereas the state court action did not include NLF until July 22, 2016, over a year later. The state court has already denied NLF’s summary judgment motion, while this Court has yet to decide the motion.9 However, discovery is complete in the federal court action, whereas it does not conclude in the state court action until October 2017. Given that both actions are substantially advanced, this factor weighs against abstaining at this point.

 

9   The Court does not fault either party for its delay in resolving Plaintiff’s summary judgment motion.

The fifth factor, whether state or federal law controls, counsels in favor of abstention. While Plaintiff’s action is brought pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, the issues involved are standard ones of agency and contract interpretation arising under state law. While the Third Circuit has noted that “abstention cannot be justified merely because a case arises entirely under state law,” Spring City Corp. v. American Bldgs. Co., 193 F.3d 165, 172 (3d Cir. 1999), here, the state court judge disqualified NLF’s counsel from participating in that action based on a conflict of interest. Resolving that issue, which is currently on appeal, as well as LP Trucking and Defendant Powell’s related estoppel argument, [*15]  calls for a reliance on state law.

Finally, the court considers whether the state court will adequately protect the interest of the parties. This factor serves only to weigh against abstention where a state court is incapable of protecting a party’s interests, see Moses H. Cone, 460 U.S. at 26-27, but here, as Plaintiff concedes, there is no question that the Superior Court can adequately protect the interests of all parties. NLF can file a summary judgment motion on apparent authority grounds in state court after discovery completes in October 2017, and does not suffer any other prejudice by having to litigate in state court only.

Upon balancing the relevant factors, the Court concludes that the “exceptional circumstances” required to abstain under Colorado River are not present in this case. Id. at 16, 19.

 

2. Declaratory Judgment Jurisdiction

The parties, at the Court’s invitation prior to argument, addressed the exercise of discretionary jurisdiction in a dispute of this type under the Declaratory Judgment Act, 28 U.S.C. § 2201.10 The DJA provides that a court “may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). “The Supreme Court has long held that this confers discretionary, rather [*16]  than compulsory, jurisdiction upon federal courts.” Reifer v. Westport Ins. Corp., 751 F.3d 129, 134 (3d Cir. 2014)(quoting Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942)). This is in stark contrast to the general rule that “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Reifer, 751 F.3d at 134 (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996)). Nonetheless, although the DJA confers on district courts a “unique and substantial discretion,” the exercise of that discretion must be “sound and reasoned.” Reifer, 751 F.3d at 139. The DJA is commonly invoked by insurance companies “to seek a declaratory judgment on a purely state law matter” in federal court based on diversity subject matter jurisdiction. Id. at 141. In response to such cases, the Third Circuit has previously observed that “[t]he desire of insurance companies and their insureds to receive declarations in federal court on matters of purely state law has no special call on the federal forum.” State Auto Ins. Cos. v. Summy, 234 F.3d 131, 136 (3d Cir. 2000). Consequently, it became common practice for district courts “to decline to exercise jurisdiction over declaratory judgment actions, involving an insurance company, that are solely brought on diversity, and have no federal question or interest.” Reifer, 751 F.3d at 142. This principle is especially relevant because the interest of a state “in resolving its own law must not be given short shrift simply because [*17]  one party or, indeed, both parties, perceive some advantage in the federal forum.” Summy, 234 F.3d at 136. Where state law is uncertain or undetermined, the proper relationship between federal and state courts counsels district courts to “step back” and be “particularly reluctant” to exercise DJA jurisdiction. Id. at 136. The fact that district courts are limited to predicting–rather than establishing–state law requires “serious consideration” and is “especially important in insurance coverage cases.” Id. at 135.

 

10   While Plaintiff appears to have brought its claim under the New Jersey Declaratory Judgment Act, the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, applies in federal court. Bianchi v. Rutgers, the State Univ. of New Jersey, No. 14-131, 2016 U.S. Dist. LEXIS 12538, 2016 WL 430597, at *11 (D.N.J. Feb. 3, 2016)(explaining that regardless of whether Plaintiff brings the initial claim under the New Jersey Declaratory Judgment Act, the Federal Declaratory Judgment applies in federal court); see also Lilac Dev. Grp., LLC v. Hess Corp., No. 15-7547, 2016 U.S. Dist. LEXIS 73862, 2016 WL 3267325, at *3 (D.N.J. June 7, 2016)(citations omitted)(“However, even in the absence of such specificity, the Erie Doctrine would nevertheless mandate the application of the Federal Declaratory Judgment Act.”).

In Reifer, however, the Third Circuit cautioned against “declining jurisdiction per se” in such cases, because a “wholesale, ‘revolving door’ dismissal of such cases” would evidence neither sound nor reasoned discretion. Id. at 147 (citing Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995) and Bituminous Coal Operators’ Assoc., Inc. v. Int’l Union, United Mine Workers of Am., 585 F.2d 586, 596 (3d Cir. 1978)) (additional citations omitted). Instead, the Third Circuit instructed district courts to consider a non-exhaustive list of factors when determining whether to exercise jurisdiction over such declaratory judgment actions, including:

(1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy;

(2) the convenience of the parties;

(3) the public interest in settlement of the uncertainty of obligation;

(4) the availability [*18]  and relative convenience of other remedies;

(5) a general policy of restraint when the same issues are pending in a state court;

(6) avoidance of duplicative litigation;

(7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata; and

(8) (in the insurance context), an inherent conflict of interest between an insurer’s duty to defend in a state court and its attempt to characterize that suit in federal court as falling within the scope of a policy exclusion.

Reifer, 751 F.3d at 146.11

 

11   The Reifer court also suggested that in insurance cases, “Summy’s additional guidance should also be considered,” as well as the Brillhart factors, if appropriate. Reifer, 751 F.3d at 146-47.

Here, the first and second factors counsel in favor of assuming jurisdiction, as a federal court declaration would resolve the uncertainty regarding the apparent authority of Lasting Legacy to cancel Defendants’ insurance policy, despite the existence of a parallel state court declaratory judgment action. Additionally, as described supra, litigating the dispute in Camden does not materially inconvenience the parties. However, the third, fourth, fifth, and sixth factors all counsel against assuming jurisdiction.12 The public interest in resolving this dispute is minimal, as the case turns on a narrow instance of cancelling (or [*19]  not cancelling) an insurance policy as between private parties. There are other remedies that NLF can pursue, specifically a declaratory judgment under the New Jersey Declaratory Judgment Act. The general policy of restraint applies here since the issues are so similar in state court, and all of the relevant parties are in that action, most notably Lasting Legacy, which is absent here. And as described supra, the Court should avoid duplicative litigation, as the state court has already denied NLF’s summary judgment motion based on similar grounds.13

 

12   There is no indication that the seventh and eighth factors are applicable to the instant matter.

13   The Court notes that for the purposes of DJA jurisdiction, “[i]t is irrelevant that the state declaratory judgment petition was filed after its counterpart in the District Court.” See State Auto Ins. Cos. V. Summy, 234 F.3d at 136.

In addition to the eight-factor test, the Reifer court also endorsed the application of factors from Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 495, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942), which applies where “another proceeding was pending in state court in which all the matters in the controversy between the parties could be fully adjudicated.” Those factors including inquiring “into the scope of the pending state court proceeding . . . the nature of the defenses open there . . . . whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.” Id. Here, the pending state [*20]  court proceeding has a wider scope than the current federal action, and there is no indication that NLF cannot satisfactorily adjudicate its declaratory judgment action in that proceeding. Given the state court’s disqualification of NLF’s law firm and the pending appeal, along with the fact that the liability and coverage issues in state court are broader than the issues before this Court, particularly regarding estoppel, the Court declines DJA jurisdiction in this matter.

 

1. Plaintiff’s Motion for Summary Judgment

Because the Court grants Defendants’ motion to dismiss on abstention grounds, it need not reach Plaintiff’s motion for summary judgment on the issue of whether Plaintiff reasonably relied upon the apparent authority of Lasting Legacy in cancelling the NLF Policy prior to Defendant Powell’s accident on June 11, 2014. The Court heard oral arguments on the merits of Plaintiff’s summary judgment motion from both parties on June 13, 2017, but finds that given the propriety of abstaining from entertaining this declaratory judgment action when a suitable case is pending in state court, Plaintiff’s motion for summary judgment shall be dismissed without prejudice.

 

1. CONCLUSION

An accompanying [*21]  Order will be entered, abstaining from exercising jurisdiction under the Declaratory Judgment Act in this insurance coverage dispute, in favor of the parties proceeding with their ongoing and more comprehensive state court litigation.

June 30, 2017

Date

/s/ Jerome B. Simandle

JEROME B. SIMANDLE

U.S. District Judge