United States District Court, E.D. Arkansas, Jonesboro Division
Property and Casualty Insurance's
(“Allstate”) motion for summary judgment [Doc.
No. 37] is granted, Angelique Tilghman's motion for
partial summary judgment [Doc. No. 46] is denied, and
Tilghman's motion to exclude [Doc. No. 49] is denied.
Further, the trial date is continued until October 7, 2019.
not apparent from the hundreds of pages of briefing and
thousands of pages of documents submitted on summary
judgment, this is a simple case arising out of a car accident
in 2010, which resulted in $406.81 in property damage.
See Def.'s Resp. to Mot. Summ. J. ¶ 2, Doc.
January 21, 2010, an uninsured driver rear-ended
Tilghman's 2007 GMC Yukon. Pl.'s Br. Supp. Resp. to
Mot. Summ. J. at 5, Doc. No. 53. Tilghman went to the
emergency room, where her x-rays were normal. Id. at
6. Tilghman later went to a chiropractor, who disagreed with
the emergency room diagnosis of strains and found a host of
medical problems attributable to the accident. See
Id. Tilghman claims she racked up over $30, 000 in
medical expenses, will need approximately $46, 000 of
chiropractic treatment over the rest of her life, and has
lost $440, 000-$1, 000, 000 in earning capacity. Def.'s
Mot. Summ. J. ¶ 2, Doc. No. 37. The damage to her car
totaled $406.81. Id. ¶ 1.
was insured by Allstate and had $50, 000 of uninsured
motorist coverage. Def.'s Br. Supp. Mot. Summ. J. at 7,
Doc. No. 38. Tilghman did not seek recovery under this policy
until March of 2015. Id. at 16. Allstate initially
offered $32, 000 to settle based on information taken from a
software tool, Colossus, which estimated Tilghman's
damages at $36, 999. Allstate eventually offered to settle
for $40, 000. Id. at 6-7.
has been involved in several other accidents before and since
the January 21, 2010, accident. Id. at 13. She
sustained injuries in at least some of them and filed other
personal injury claims arising out of those accidents.
See Id. at 3, 14. Indeed, Tilghman had been treating
with chiropractors for years before the accident at issue in
this case, and she was considered 100% disabled and unable to
work prior to this accident. Id. at 2-3. The parties
dispute the extent to which Tilghman's past and ongoing
medical problems are related to the January 21, 2010,
accident. See Id. at 4; Pl.'s Br. Supp. Resp.
Mot. Summ. J. at 13.
judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242,
249-50 (1986). Once the moving party demonstrates that there
is no genuine dispute of material fact, the non-moving party
may not rest upon the mere allegations or denials in his
pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th
Cir. 2011). Instead, the non-moving party must produce
admissible evidence demonstrating a genuine factual dispute
requiring a trial. Id.
a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may consider the
fact undisputed for purposes of the motion.”
Fed.R.Civ.P. 56(e)(2). All reasonable inferences must be
drawn in a light most favorable to the non-moving party,
Holland v. Sam's Club, 487 F.3d 641, 643 (8th
Cir. 2007), but a party's own self-serving, conclusory
allegations in an affidavit or deposition, standing alone,
are insufficient to defeat summary judgment. Haas v.
Kelly Services, 409 F.3d 1030, 1034 (8th Cir. 2005).
Finally, the evidence is not weighed, and no credibility
determinations are made. Jenkins v. Winter, 540 F.3d
742, 750 (8th Cir. 2008).
Allstate's Motion for Summary Judgment
Wrongful Action in Performance of the Policy
motion for summary judgment is granted as to the claim for
wrongful action in performance of the insurance policy
because there is no precedent for this tort claim.
“[N]egligent performance of an insurance contract is
not a tort in Arkansas.” Chi. Title Ins. Co. v.
Ark. Riverview Dev., LLC, 573 F.Supp.2d 1152, 1159 (E.D.
Ark. 2008). Tilghman relies on dicta to support her position
that a tort may exist for misfeasance in refusing to perform
on an insurance contract. Pl.'s Br. Supp. Resp. to Mot.
Summ. J. at 51; see Farm Bureau Ins. Co. of
Ark., Inc. v. Running M Farms, Inc., 237 S.W.3d 32 (Ark.
2006). She has failed, however, to identify Arkansas Supreme
Court precedent recognizing this tort or even articulating
the elements of this tort.