IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BELINDA GAIL BROWN, * 

 * 

 Plaintiff, * 

 * 

v. * Case No. 3:06cv00710-MHT 

 * 

LIBERTY MUTUAL INSURANCE* 

COMPANY, et al, * 

 * 

 Defendants. * 

MOTION FOR SUMMARY JUDGMENT

 Comes now Defendant Liberty Mutual Insurance Company pursuant to Rule 56 

of the Federal Rules of Civil Procedure and files this Motion for Summary Judgment, 

moving the Court to grant summary judgment to it and dismiss this case against it. In 

support of this Motion for Summary Judgment, Defendant submits the following: 

 (1) Affidavit of Vacova Berryhill; 

 (2) Excerpts from the deposition of Plaintiff Belinda Brown; 

 (3) Memorandum brief in support of motion; 

 (4) All pleadings and discovery of record to date. 

 In further support of this motion, Defendant would show unto the Court that there 

is no genuine issue of material fact and it is entitled to summary judgment as a matter of 

law. 

 Respectfully submitted, 

 s/Richard B. Garrett

 Richard B. Garrett (ASB-0782-A29R) 

Case 3:06-cv-00710-MHT-TFM Document 10 Filed 05/04/2007 Page 1 of 3
RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A. 

Post Office box 270 

Montgomery, Alabama 36101-0270 

Telephone: 334/206-3100 

Fax: 334/263-4157 

 E-mail: rbg@rsjg.com

 

 Attorney for Defendant 

Case 3:06-cv-00710-MHT-TFM Document 10 Filed 05/04/2007 Page 2 of 3
 I hereby certify that on May 4, 2007, I electronically filed the foregoing with the 

Clerk of the court using CM/ECF system which will send notification of such filing to the 

following: STEPHEN D. HENINGER. 

 s/Richard B. Garrett 

 OF COUNSEL 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BELINDA GAIL BROWN, * 

 * 

 Plaintiff, * 

 * 

v. * Case No. 3:06cv00710-MHT 

 * 

LIBERTY MUTUAL INSURANCE* 

COMPANY, et al, * 

 * 

 Defendants. * 

MEMORANDUM BRIEF IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

 Comes now Defendant Liberty Mutual Insurance Company and submits this 

memorandum brief in support of its Motion for Summary Judgment, filed on even date 

herewith. 

 Plaintiff filed this case in the Circuit Court of Randolph County, Alabama, on July 

11, 2006, alleging bad faith and outrageous conduct by Defendant for its alleged failure 

to provide and pay for certain medical treatment for Plaintiff. Defendant removed this 

case to this court on August 9, 2006. 

 Plaintiff alleges in her Complaint that she suffered an on-the-job injury on 

February 2, 1993, that was covered under the Workers’ Compensation Laws of the 

state of Alabama. Defendant is the insurance carrier that has been paying for medical 

treatment that allegedly arises out of Plaintiff’s injury. 

 Plaintiff further alleges in her Complaint that Defendant has refused to provide 

and pay for an intrathecal pump and a spinal cord stimulator for the Plaintiff. Plaintiff 

alleges that such conduct constitutes bad faith and outrageous conduct. 

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 Contrary to the allegations of Plaintiff, the affidavit of Vacova Berryhill (submitted 

in support of and attached to Defendant’s Motion for Summary Judgment) reflects that 

Defendant Liberty Mutual has provided extensive care and treatment for Ms. Brown, 

including evaluation and treatment by numerous doctors, two back surgeries, epidurals 

and spinal blocks, steroid shots, physical therapy, one-half of the cost of a mattress and 

box springs, two treadmills, a swimsuit, a special cushion and back pillow, numerous 

medications and other treatment for Ms. Brown. [See affidavit of Vacova Berryhill.] 

 Ms. Berryhill’s affidavit further reflects that at one point in 2002, Dr. Moore did 

recommend a morphine (intrathecal) pump for Ms. Brown. Pursuant to recommended 

protocol and internal guidelines, Liberty Mutual had a psychological evaluation done to 

see whether Ms. Brown was an appropriate candidate for an implantable device. The 

psychological evaluation advised that Ms. Brown was not an appropriate candidate. Dr. 

Moore withdrew the request for a morphine pump, saying that it would not help with the 

numbness in Ms. Brown’s legs. [See affidavit of Vacova Berryhill and pages 74-76 of 

deposition excerpts of Belinda Brown.] 

 Ms. Berryhill’s affidavit reflects that Dr. Moore next recommended a spinal cord 

stimulator (SCS) for Ms. Brown. Pursuant to the Alabama Worker’s Compensation Act 

utilization review procedures, Liberty Mutual initiated a utilization review of Ms. Brown’s 

treatment and the request for SCS. A first level review was obtained from a nurse case 

manager and a second level review from a regional medical director, both of whom 

recommended against the SCS. Dr. Moore was advised of these recommendations and 

he disagreed with them. Rather than follow the appeal procedures set out in the statute 

for utilization review, Dr. Moore went outside of the utilization review procedures and 

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3

obtained a second opinion from a Dr. Serrato in Columbus, Georgia, who said that he 

felt that Ms. Brown was an appropriate candidate for an SCS. After considering this 

matter and seeking the advice of counsel, Liberty Mutual agreed to a test of an SCS on 

Ms. Brown. The test was done in the Spring of 2006 and Ms. Brown reported that she 

got 50 percent relief from her pain. Approval was given for the implantation of a 

permanent SCS and this was accomplished in June, 2006. This lawsuit was filed on 

July 11, 2006, shortly after the implantation of the permanent SCS. [See affidavit of 

Vacova Berryhill.] 

 Liberty Mutual has continued to pay for pain medicines Oxycontin and Lorcet, 

Lidoderm patches, sleeping medicine, Ambien, an anti-depressant, and Dr. Moore’s 

office visits. [See pages 92-95 of deposition excerpts of Belinda Brown.] Although 

giving consideration to a possible settlement of Ms. Brown’s future medicals and asking 

her attorney if she would be interested in discussing same, Liberty Mutual has never 

negotiated such a settlement with Ms. Brown or made an offer to her, and, thus, 

certainly has never attempted to coerce her into any settlement, much less a low one. 

[See affidavit of Vacova Berryhill.] 

APPLICABLE LAW

 As noted above, Plaintiff alleges claims of bad faith and outrageous conduct 

(often referred to as the tort of outrage). In regard to the bad faith claim, the Alabama 

Supreme Court has held in a number of cases that bad faith claims are barred by the 

exclusivity of remedy provisions in the Alabama Workers’ Compensation Act. See, e.g., 

Hobbs v. Alabama Power Co., 775 So. 2d 783 (Ala. 2000) (Alabama Supreme Court 

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recognized that Alabama Code Section 25-5-59(b) provides the only remedy for an 

employee when payments are delayed.) 

 The Alabama Supreme Court has allowed tort of outrage cases to proceed in the 

workers’ compensation setting, but only in very limited, fact-specific situations. In order 

to establish a claim for outrage, a plaintiff must prove: “(1) that the defendant’s conduct 

was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it 

caused emotional distress so severe that no reasonable person could be expected to 

endure it.” American Road Service Co. v. Inmon, 624 So. 2d 361, 365 (Ala. 1980). A 

plaintiff must demonstrate that the defendant engaged in conduct “so outrageous in 

character and so extreme in degree as to go beyond all possible bounds of decency 

and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. This 

test is to be applied very strictly. See, e.g., Ex parte Crawford & Co., 693 So. 2d 458 

(Ala. 1997). Alabama courts have made it clear that “the tort of outrage was not 

developed to provide a personal remedy for the trivial emotional distresses that are 

common to each person in his everyday life. Such [distresses are] the price of living 

among people.” U. S. A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1101 (Ala. Civ. App. 1982). 

 The Alabama Supreme Court has only upheld findings of outrageous conduct in 

two workers’ compensation medical benefits cases over the years, and these were very 

extreme and fact-specific situations. These cases are Continental Casualty Insurance 

Company v. McDonald ̧567 So. 2d 1208 (Ala. 1990) and Travelers Indemnity Company 

of Illinois v. Griner, 809 So. 2d 808 (Ala. 2001). In both of these cases, the evidence 

established that the insurance carrier had withheld pain medicine and treatment for over 

five years. This withholding of treatment was done with a knowledge that the plaintiff 

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was suffering from severe pain and it was also done to try to force the plaintiffs to try to 

settle their future medical benefits for an extremely low amount of money, much less 

than the projected future cost of the benefits. In McDonald, the Alabama Supreme 

Court recited numerous delays and denials of treatment extending over several years, 

almost all without any justification or attempt by the insurance carrier to properly 

respond to or resolve the issues. The Court further pointed out that the insurance 

carrier documented that it expected the claimant’s medical bills to total from $71,000 to 

$115,000, yet only offered the claimant $1,000 per year (at a cost of $9,096 for an 

annuity) to settle. 

 In Griner, the Alabama Supreme Court also outlined delays and denials of 

treatment lasting for years and then pointed out that the insurance carrier documented 

that it could reasonably expect to pay $279,400 for the claimant’s benefits over his 

lifetime. In contrast, the carrier offered Griner $5,000 to settle his future medicals. In 

response to a counter-demand from the claimant, the insurance adjuster wrote in 

Griner’s file “I simply chuckled and stated we are not interested in anything near that.” 

809 So. 2d at 812. 

 The facts of this case are distinguishable from McDonald and Griner and are, 

instead, similar to the much more recent case of Soti v. Lowe’s Home Centers, Inc., 906 

So. 2d 916 (Ala. 2005). In Soti, the defendant provided extensive and continuing 

medical treatment for the plaintiff for three years, including three back surgeries. See 

Id. at 920. Stating that the facts “differ[ed] dramatically” from those of McDonald, the 

Soti court held that the Plaintiff had not presented sufficient evidence to support his 

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claim of outrage. Likewise, Liberty Mutual in this case has provided for extensive 

treatment for Plaintiff for more than ten years, and continues to provide treatment. 

 Outside of McDonald and Griner, numerous cases from the Alabama Supreme 

Court have held that the evidence did not support a tort of outrage claim in the context 

of denying medical benefits under the workers’ compensation act. For example, in 

Farley v. CNA Insurance Company, 576 So. 2d 158 (Ala. 1991), an insurance carrier 

failed to timely pay medical bills, sent claimant to various doctors, withheld authorization 

for medical treatment, displayed an unsympathetic attitude to claimant, and gave the 

claimant the runaround. 576 So. 2d at 160. The Alabama Supreme Court held that this 

conduct failed to meet the threshold requirements for outrageous conduct. Id. In a 

similar case, Ex parte Crawford and Company, 693 So. 2d 458 (Ala. 1997), the plaintiff 

claimed that the workers’ compensation carrier deliberately delayed paying his medical 

bills in an attempt to force him to settle his claims for future medical benefits. 693 So. 

2d at 459. In support of his claim, the plaintiff claimed that the conduct of the workers’ 

compensation carrier caused him embarrassment and frustration. Id. at 461. The 

Alabama Supreme Court held that the deliberate conduct of delaying payment of 

medical bills indicated that the workers’ compensation carrier intended to cause the 

plaintiff emotional distress. However, the Supreme Court additionally held that this 

conduct was “far from being beyond all possible bounds of decency and utterly 

intolerable in a civilized society.” Id. In accordance with its holdings, the Supreme 

Court noted that “[a]lthough constant delay may be inconvenient and upsetting at times, 

the workers’ compensation insurance carrier’s alleged conduct still does not meet the 

stringent test of outrageous conduct. . .” Id.

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CONCLUSION

 Plaintiff’s bad faith claim is barred by the exclusivity provisions of the Alabama 

Workers’ Compensation Act. In regard to Plaintiff’s outrage claim, it is clear from the 

evidence that Defendant’s alleged conduct does not rise anywhere near the level 

established as a minimal floor by the Alabama Supreme Court in the McDonald and 

Griner cases. Thus, Defendant is entitled to summary judgment as to both Plaintiff’s 

bad faith and outrage claims and this case against Defendant is due to be dismissed. 

 Respectfully submitted, 

 s/Richard B. Garrett

 Richard B. Garrett (ASB-0782-A29R) 

RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A. 

Post Office box 270 

Montgomery, Alabama 36101-0270 

Telephone: 334/206-3100 

Fax: 334/263-4157 

 E-mail: rbg@rsjg.com

 

 Attorney for Defendant 

 I hereby certify that on May 4, 2007, I electronically filed the foregoing with the 

Clerk of the court using CM/ECF system which will send notification of such filing to the 

following: STEPHEN D. HENINGER. 

 s/Richard B. Garrett 

 OF COUNSEL 

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