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Defendant states that its true name is “Minnesota Life 1

Insurance Company,” and contends that it has been erroneously

sued as “Minnesota Mutual Life Insurance Company.” (See Def.’s

Objections to Evidence Submitted by Pl. in Opp’n to Mot. for

Summ. J. at 1). Plaintiff does not contest that defendant’s true

name is “Minnesota Life Insurance Company.” The court therefore

refers to defendant as Minnesota Life Insurance Company. 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

ALLEN WALL, 

NO. CIV. S-04-1314 WBS DAD

Plaintiff, 

v. MEMORANDUM AND ORDER

RE: DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

MINNESOTA MUTUAL LIFE

INSURANCE COMPANY,1

Defendant.

----oo0oo----

Plaintiff brings this action alleging state-law claims

for breach of an insurance contract and breach of the implied

covenant of good faith and fair dealing (“bad faith”). 

Jurisdiction is predicated on 28 U.S.C. § 1332 (diversity). 

Pursuant to Federal Rule of Civil Procedure 56, defendant moves

for summary judgment only as to plaintiff’s bad faith claim.

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The court must grant summary judgment to a moving party

“if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). The party adverse to a motion for summary

judgment may not simply deny generally the pleadings of the

movant; the adverse party must designate “specific facts showing

that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e);

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Because this is a diversity action involving only

California state-law claims, the court must apply California law. 

See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). 

The ultimate test of bad faith by an insurer under California law

is whether the insurer’s actions were unreasonable. Gourley v.

State Farm Mut. Auto Ins. Co., 53 Cal. 3d 121, 127 (1991). Even

if an insurer’s denial of benefits is ultimately determined to be

incorrect and a breach of an insurance contract, a bad faith

claim cannot succeed without showing that the denial of benefits

was arbitrary or unreasonable. See Amadeo v. Principal Mut. Life

Ins. Co., 290 F.3d 1152, 1162 (9th Cir. 2002); Love v. Fire Ins.

Exchange, 221 Cal. App. 3d 1136, 1151 (1990)(“[T]he reason for

withholding benefits must have been unreasonable or without

proper cause.”). 

Stated another way, “where there is a genuine issue as

to an insurer’s liability under the policy for the claim asserted

by the insured, there can be no bad faith liability imposed on

the insurer.” Chateau Chamberay Homeowners Ass’n v. Associated

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Int’l Ins. Co., 90 Cal. App. 4th 335, 347 (2001); accord Fraley

v. Allstate Ins. Co., 81 Cal. App. 4th 1282, 1292 (2000); see

also Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir.

2001); Phelps v. Provident Life & Accident Ins. Co., 60 F. Supp.

2d 1014, 1021-24 (C.D. Cal. 1999)(applying California law and

granting summary judgment on bad faith claim for denial of

disability benefits where “dispute regarding its liability

existed at the time” plaintiff’s claim was denied).

The court counts fourteen (14) different physicians who

have examined plaintiff Alan Wall and/or the medical files he

sent to defendant to support his disability claim, many of whom

arrive at different conclusions. The numerous conflicting

medical opinions with regard to plaintiff’s disability claim

suggest that defendant should not be faulted for relying on

independent medical examiners to evaluate the opinions of

plaintiff’s doctors and plaintiff’s own subjective complaints of

disability. 

For example, some of the clinical evidence sent to

defendant by plaintiff covered the years 1990-1995, and Dr.

Dixit’s updated APS stated that plaintiff’s symptoms first

appeared in the year 1990. (Gosse Decl. Ex. H at STND589-00135). 

However, medical records possessed by plaintiff’s own personal

physician, Dr. Zaks, indicated that in 1997 an orthopedic

surgeon, Dr. Rao, concluded that plaintiff was not disabled. 

(Id. Ex. I at STND589-00190). This suggests that plaintiff had

claimed he was disabled before, but a specialist referred by

plaintiff’s own doctor disagreed. Confronted with this

information, it would not appear that defendant acted arbitrarily

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Defendant objects to plaintiff’s opposition on the 2

ground that it was untimely filed. (See Def.’s Reply at 2). 

However, defendant was not prejudiced by plaintiff’s late filing,

as the court finds defendant was able to prepare an adequate

reply that was fully responsive to plaintiff’s opposition. The

court has an interest in deciding cases on their merits and not

on technicalities. Olvera v. Giburbino, 371 F.3d 569, 573 (9th

Cir. 2004). Therefore, this objection is overruled. 

4

or unreasonably in seeking independent medical opinions regarding

plaintiff’s condition. 

Defendant also appears to have been continually willing

to accept new opinions and comments from plaintiff’s doctors on

plaintiff’s condition, and defendant consistently kept plaintiff

aware of the claim evaluation process by letter. (See, e.g., id.

Exs. K, P, S, AA, DD). Through these letters, defendant

repeatedly invited plaintiff to call or write with any questions

and to provide any additional medical information he wished to

submit in support of his claim - even after plaintiff sent an

insulting and threatening letter to defendant’s representative. 

(Id. Ex. CC at STND589-00378 (“You skew/screw w/ my survival,

I’ll skew/screw w/ yours, you corporate ass-kissing portfolio

geeks . . . . Better watch out, corpoRAT jacka$$es.”))(emphasis

in original). Defendant’s solicitous process would not seem to

be the mark of an insurer capriciously denying benefits.

In his opposition to this motion, plaintiff responds

that “fibromyalgia is a medically determinable condition that can

cause disability,” acknowledged by the Ninth Circuit and the

American Medical Association, and that blurred vision can be one

of the symptoms of this condition. (Pl.’s Mem. of P. & A. in

Opp. to Mot. at 16)(“Pl.’s Opp.”). Defendant does not dispute 2

that fibromyalgia is a real medical condition, or that it can

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Dr. Gardner testified that “I just noticed that in the 3

first visit [plaintiff] did also say that he was unable to read

and that the eyes were a change [sic] from the fibromyalgia.” 

(Bianchi Decl. Exs. H, I, Q (Gardner Dep.) at 31:20-23). What

Dr. Gardner fails to state in his deposition, however, is that he

actually determined that plaintiff had blurry vision or any

reading difficulty. The following interchanges from Dr. Gardner’s

deposition highlight this point:

Q What symptoms of fibromyalgia do you consider Mr. Wall

to have?

A He has diffuse pain over a lot of his muscles and low

energy.

Q Anything else?

A No.

Q That was no?

A No -- Yes, that was no.

(Cherne Decl. Ex. B (Gardner Dep.) at 7:22-8:6)(emphasis added).

Q Well, is there something about his condition that would

make it difficult to read?

A I know if a person’s depressed they’ll have trouble

concentrating. If somebody has a neck and spine like

this, it’s conceivable that the –- the physical

position you’d have to be in to read could be painful.

Q Would he have have any trouble seeing the page?

A I don’t see why he would. I’m not –- I’m not aware of

any eye deficit. Doesn’t necessarily rule it out, but

I don’t –- I’m not aware of any.

(Bianchi Decl. Ex. F (Gardner Dep.) at 29:1-29:11)(emphasis

added). 

5

cause disability. Defendant’s motion hinges on the argument that

there was at least a genuine issue as to its liability when the

decision was made to deny plaintiff’s claim. (Def.’s Mem. of P.

& A. in Supp. of Mot. for Summ. J. at 1, 16)(“Def.’s Mot.”)

Plaintiff claims that he suffers from blurred vision

caused by fibromyalgia. In support of that claim, he points to

the deposition of Dr. Gardner stating that plaintiff complained

to him of blurry vision, and his own deposition, in which he

testified that he left his job because he could no longer read

well enough to do the job. (Bianchi Decl. Exs. H, I, Q (Gardner

Dep.) at 31:20-23, Ex. L (Wall Dep.) 14:4-12).3

Defendant, on the other hand, points to the broad

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opinions of numerous medical professionals that plaintiff was not

disabled within the meaning of the policy, and that even if

plaintiff had fibromyalgia, he could still perform his job

functions: Dr. Rao in 1997 (Id. Ex. I at STND589-00190)(“He is

not disabled.”), Dr. Swartz in 1999 (Id. Ex. L at STND589-

00255)(“I do not find any functional impairments . . . Mr. Wall

is capable of performing the substantial and material duties of

his usual occupation.”), Dr. Heisler in 2000 (Id. Ex. M at

STND589-00265)(“[H]is impairment does not appear to be sufficient

to explain his ability to return to his former occupation except

for what appears to be a lack of motivation and energy.”), Dr.

Swartz again in 2000 (Id. Ex. O at STND589-00275)(“If there is

any fibromyalgia existing, it would be mild and would not be of

clinical significance or disabling.”), Dr. Friedberg in 2000 (Id.

Ex. Y)(“I did not find [plaintiff] to be disabled.”), Dr. Fraback

in 2001 (Id. Ex. SS)(“I don’t find evidence that [plaintiff] has

a condition or combination of conditions that should preclude

working full-time as a community college instructor.”). Even if

it ultimately turns out that all of these medical professionals

were unaware of plaintiff’s alleged disabling blurry vision, and

thus their opinions were incomplete and flawed, plaintiff will

ultimately have the burden to show that defendant knew of this

disability claim and unreasonably or arbitrarily ignored it. 

Celotex, 477 U.S. at 323-24. 

Reasonableness of an insurer’s conduct is ordinarily a

question of fact. Carlton v. St. Paul Mercury Ins. Co., 30 Cal.

App. 4th 1450, 1456 (1994). In this case, there has been no

demand for a jury, so this court will be the ultimate trier of

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fact. It will be for this court to determine from the evidence

whether, in the face of the laundry list of physicians who made

direct and broad statements to defendant that plaintiff was not

disabled, it was unreasonable or arbitrary for defendant to deny

coverage. It will also be for this court to determine from the

evidence whether plaintiff properly apprised defendant of his

alleged disabling blurry vision in compliance with the policy,

which requires written proof of loss. Those questions of are

better left for the court to resolve at the time of trial rather

than on summary judgment. At that time, all of the evidence will

be presented, the court will have an opportunity to observe the

witnesses and to weigh any conflicting evidence, and the court

will be in the best position to make the determination as to

whether there is any genuine issue as to defendant’s liability

under the policy for the claim asserted by the plaintiff.

IT IS THEREFORE ORDERED that defendant’s motion for

summary judgment as to plaintiff’s claim for breach of the

implied covenant of good faith and fair dealing be, and the same

hereby is, DENIED, subject to the court making its determination

on the issues raised thereby at the time of trial.

DATED: August 10, 2005

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