Tilghman v. Allstate Property And Casualty Insurance Co.

          ORDER

         Allstate 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.

         I. BACKGROUND

         While 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. No. 58.

         On 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.

         Tilghman 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.

         Tilghman 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.

         II. LEGAL STANDARD

         Summary 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.

         “If 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).

         III. DISCUSSION

         A. Allstate's Motion for Summary Judgment

         1. Wrongful Action in Performance of the Policy

         The 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.

         2. ...