NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0510n.06 No. 12-6276 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SA R A R OG ER S CRUTCHF I EL D , A dm in is t r a t r ix of the Estate of Jeann e F . Crutc hf ield, P laintif f-App ellant,

v. T R A N S A M E R I C A O C C I D E N T A L L I F E INSURANCE CO., nka Transam er i ca Lif e Insu rance C om pany, Defendan t-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E WEST ERN DIST RICT OF KENTUCK

Y O P I N I O N

BEFORE: COLE and McK EAGU E, Circuit Judges; and ZOUHARY, Distr ict Judge. * McK EAGU E, Circuit Ju dge. Sara Roger s C ru t ch field, as administratrix of t he estate of J eanne Crutchfield, appea ls the district court’s g rant of summary judgme nt in favor of Transa merica Occ idental L ife I nsuranc e Company (“Tr ansame rica ”). F or the re asons that foll ow, we aff irm the judgme nt of the district court. I. I n 1992, J eanne Crutchfield (“Crut c h f ie ld ” ) p u r c h a s e d a lo n g - te r

m c a r e in s uranc e policy from defe ndant Transa

merica Occ iden ta l L if

e I n s u r a n c e Co mp a

ny ( “ T r a n s a me r ic a ” )

. T h e p o li cy provides

1

The Honora

ble J ack Z ouhary , United States District J udg e for the Norther n District of Ohio, * sitti ng by desig nation. T ra n sameric a L ife I nsuranc e Company is the succe ssor to Transa merica Occ idental L if

e 1 I nsuranc e Company

.No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co.

cover ag e for Nursing Home Care, Adult Day Care, and Home Hea lth Care, as define d in the policy

. Only Nursing Home cover ag e is at issue in this appea l. The policy define s “Nur sing Home” in this 2 way : A fac ility , or th at part of one, which: (1) is opera ting under a license issued by the appropr iate licensing ag ency ; (2) is eng ag ed in provi ding, in addition to room and board a ccommodations, nursing car e and r elated se rvice s on a continuing inpatient basis to 6 or more individuals; (3) provides, on a formal prea rra ng ed basis, a Nurse who is on duty or on call at all t i m es ; (4 ) h as a planned prog ram of policies and proce dures develope d with the advice of, and periodica lly revie wed by , at least one Phy sician; and (5) maintains a cl inical rec ord of eac h patient. I t may be a distinct part of a hospital or other institution. I t is NOT a place that is primarily used for rest; for the car e and trea tment of mental diseases or disorder s, drug addiction, or alcoholism; f or day car e or for educational car e; or a retire ment home or c ommunity living ce nter. R. 1-2, Pag e I D #11. The policy conditions the rec eipt of Nursing Home Be nefits by stating in part: To rec eive Nur sing H ome B enef its: * * * * (3) The car e or se rvice s must be provided in a Nur sing H ome. Prior approva l of Nursing Home car e is not require d. Howeve r, car e rec eived at a nursing fac ility which is not in full compliance with the definition of a Nursing Home will still meet the require ments of this Policy , but only if Our Personal Care Advisor pre- cer tifies that the fa cility

substantially

complies.

Thoug h the district court’s summary judgme nt decision resolve d Crutchfield’s A dult Day 2 Care and Home Hea lth Care cl ai m s in Transa merica ’s favor , she has not appea led those deter minations. - 2 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. R. 1- 2, Pag e I D #12-13. Acc ording ly , there are two paths for an insured to r ece ive Nursing Home Be nefits. Either the fac ility must strictly meet the definition of “Nur sing Home,” or Transa merica must pre-c ertify

that the fa cility

substantially

complies with the definition of “N ursing Home.” I n 2009, Crutchfield was diag nosed with Alzheimer’s disease, and in April 2009, she beca me

a fu l l -t ime patient at a fac ility called Ba rton House. Ba

rton House specia liz es in trea tin g Alzheimer’s patients and provides an on-duty nurse durin g t h e d ay and on-ca ll nurses at night. Crutchfield c oncede s, it does not provide round-the -cloc k nursing service s. Appellant B r. at 5. After moving to Ba

rton House, Crutchfield made a benef its claim to Transa

merica in order to rec over Nursing Home Be nefits under the policy

. Transa merica investiga ted whether Ba rton 3 House met the policy definition of “Nur sing Home,” and on J une 18 , 2 0 09, Transa merica sent Crutchfield a claims deter mination letter specific ally deny ing the claim on the basis that Ba rton Hous e d i d not satisfy the policy ’s definition of a Nursing Home. R. 42-2, Claim L etter, Pag e I D #351-53. Crutchfie ld a ll e g e s th a t she appea led the adver se deter mination throug h the policy ’s appea l proce ss, and that her

appea l was also denie d. 4

Neither party subm i t t ed C rut chfie ld’s initial notice of her claim or her claim form as part 3 of the rec ord. See Policy , R. 1-2, Pag e I D #19 (“N OTI CE OF CL AI M: You must tell us in writing when You have a claim for benef its

. . . . The notice should include at least: Your name, Your Policy Number, and the addre ss to which the claim form should be sent

. . . .”) (“CL AI M FORMS: When We g et notice of Your claim We will send out a claim form to be u sed to file proof of loss

. . . . Answer all questions and send a ll required inf ormation to the addre ss on the form . . . .”)

. Neither party made Crutchfield’s written appea l or Transa merica ’s denial of that appea l part 4 of the rec ord. See Policy , R.1-2, Pag e I D #21 (“A PPEAL PROCES S: .

. . I f y ou do not a g ree with a claim decision, You may then ask for a revie w. Your reque st must be in writing to Us and include any information y ou think will hel p Yo u r cl ai m. No specia l form is neede d

. . . . Wit hin 30 day s afte r rec eiving Your reque st, We will send You or Your repr esenta tive Our decision. Our decision - 3 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. I n Dec ember 2010, Crutchfield filed this diversity action ag ainst Transa merica

. Her initial Complaint alleg ed that she had a rea sonable expectation that her trea tment in an Alzheimer’s fac ility would be cover ed under the policy , and thus Transa merica was in brea ch of contra ct when it denied her claim for Nursing Home Be nefits. I n October 2011 and Marc h 2012, Crutchfield amende d her Complaint. Her Amended Compl aints rea ffirme d her belief that her ca re at Barton House should be cover ed as Nursing Home Be nefits, and alleg ed that she was entitled to rec over under the Adult Day Care or Home Hea lth Care provisions of the policy

. She further alleg ed that in deny ing her benef its, Transa

merica brea ched its duties of g ood faith and fair dealing , and violated the Kentucky Unfa ir Claims Settlement Practice s Act, the Kentucky Consumer Protection Act, and the Kentucky I nsuranc e C ode. Crutchfield ne v er s p ecif ically alleg ed in any of her three complaints that Ba rton House “substantially complied” with the policy definition of “Nur sing Home.” Nor did she alleg e th a t s h e s o u g h t p r e-c ertifica

tion and was wrong fully denied benef its under the substan ti a l c o mp li a n c e provision of the policy

. Transa merica filed a motion to dismiss under F E D . R. C I V . P. 12(b)( 6). R. 30, Pag e I D #154. Crutchfield opposed the motion, but ag ain did not arg ue the substantial compliance is s u e. R. 34, Pag e I D #174. The district court denied the motion to dismiss , concluding that Crutchfield’s Second Amended Complaint “satisfie[d] her pleading require ments . . . .” R. 40, Pag e I D #238. Transa merica then fil ed a motion for summ ary judgme nt as to all of Crutchfie ld’s claims. R. 42, Pag e I D #243. Crutchfi el d responded to Transa merica ’s motion and reque sted partial

will be in writing w ith Our rea sons stated clea rly . . . .”). - 4 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. summary judgme nt on her claim for Nursing Home Be nefits under the policy

. R. 52-1, Pag e I D #537 n.2. Crutchfield’s response arg ued for the first time that Ba rton House substantially complied with the definition of “Nur sing Home.” Alterna tively , she arg ued that the substantial compliance lang uag e in the policy is ambig uous and thus must be construed in her favor

. R. 52-1, Pag e I D #537, 542, 545. I n response to this new arg ument, Transa merica rec og nized that the subst antial compl iance arg ument had not been pled, “nor was cover ag e on this basis ever reque st ed o f Transa merica .” R. 55, Pag e I D #737-38. Crutchfield countered that she requested such cover ag e “throug h the appea ls proce ss,” but she also arg ued that any reque st for pre- cer tification “would have been f utile.” R. 58, Pag e I D #777. The district court denied Crutchfield’s reque st for partial s ummary judgme nt and g rante d summary judgme nt to Transa merica on all of Crutchfield’s claims. Crutchfield e x rel. Crutchfield

v. Transamerica Occ idental Life Ins. Co. , No. 3:10-cv-777- H, 2012 WL 4212354, at *5 (W.D. Ky

. Sept

. 1 9 , 2 0 1 2). As rele vant to this appea l, the district court conclude d that “the Policy unambig uously states that cover ag e is pr ovided under the substantial compliance provision only if pre- cer tification is soug ht. Plaintiff doe s not dispute that she failed to se ek pre -ce rtification. This makes her ineligible under the Policy ’s unambig uous terms.” Id. at *2. The court further conclude d that beca use t he policy

lang uag e wa s unambig uous, “[t] he reasonable expectation doctrine is thus inapplicable.” Id. at *4. Crutchfield timely appea led the district court’s decision g ranting summary judgme nt to Transame rica . R. 62, Page I D #804. 5

Sara Roge rs Crutchfield was substitut ed as a party afte r J eann e C rutchfie ld died on 5 Dec ember 19, 2012, afte r her notice of a ppeal wa s filed. Crutchfield v. T ransamerica Occidental - 5 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. II. We revie w a district court’s g rant of summary judgme nt de novo . Smith v. W al-Mart Stores, Inc. , 167 F.3d 286, 289 (6th Cir. 1999). Summary judgme nt is proper “if the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(a)

. “[T] he party seeking to avoid summary judgme nt must point to evidenc e in the rec ord demonstrating a g enuine dispute of materia l fac t.” Newell Rubbermaid, Inc.

v. Raymond Corp. , 676 F.3d 521, 533 (6th Cir. 2012). This means the opposing party must “do more than simply show that there is some metaphy sical doubt as to the materia l fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). We revie w the district court’s fac tual finding s for clea

r err or. United States ex rel. W all v. Circle C Const., L.L.C

. , 697 F.3d 345, 350 (6th Cir. 2012). The pa

rties ag ree that Kentucky

law applies in this diversity case . The interpre tation of an insurance policy is a question of law appropr iate for deter mination at the summary

judgme nt stag e. Stone v. Ky. Farm Bureau Mut. Ins. Co. , 34 S.W .3d 809, 810-11 (Ky

. Ct. App. 2000). We g ive the terms of an insurance policy their plain and ordinary meaning , and when the terms of the policy are clea r and unambig uous, we must e nforc e them as draf ted. City of Louisvill e v. McD onald , 819 S.W .2d 319, 320-21 (Ky

. Ct. App. 1991); Osborne v. Uniguard Indem

. Co. , 719 S.W .2d 737, 740 (Ky

. Ct. App. 1986). Under Kentucky ’s rea sonable expectations doctrine, when the terms of an ins uranc e contract are ambiguous, we will interpre t those ter ms “in favor of

Life Ins. Co. , No. 12-6276 (Ma r. 14, 2013 Orde r on Mot. for Substituti on).

- 6 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. the insured’s rea s o n able expectations and construe[] [t hem] as an aver ag e person would construe them.” Hugenbe rg v. W

. Am. Ins. Co. , 249 S.W .3d 174, 185-86 (Ky . Ct. App. 2006).

III. On appea l, Crutchfield conce des that Ba rton House does not meet the policy ’s definition of “Nur sing Home,” and thus she cannot u t i l i z e t h e fi rst path for seeking Nursing Home Be nefits. I nstead, throug h sever al differ ent arg uments, she asser ts that she should rec eive Nurs i n g Home Be nefits beca

use Ba rton House substantially complies with the definition of “Nur sing Home.” First, she arg ues that the phrase s “substantially complies” an d “n u rsi ng fac iliti es” in the policy are ambi gu o u s an d thus should be construed in her favor under the rea sonable expectations doctrine, there by allowing her to r ecove r benef its. Second, she arg ues that Ba rton House should be cover ed beca use it substantially complies with the definition of “Nur sing Home.” Third, she arg ues that even if she failed to seek pre- cer tification befor e she moved to Ba rton House, she should still be entitled to benef its for the period of time afte r she met the pre- cer tification reque st require ment. The district court found that Crutchfield had not met th e p re -c er tification require ment, and that this failure prec luded her other arg uments. We ag ree with the district court that the pre- cer tification re q

u ir e me nt is determinative, a

nd on this basis, also decline to addr ess Crutchfie ld’s other a rg uments. Crutchfield’s policy unambig uously states that while “prior approva l” is not require d for car e in a fac ility meeting the definition of “Nur sing Home,” car e “at a nursing fac ility ” that does not meet the definition of a Nu rs i n g Ho m e may be cover ed by the policy , “ but only if Our Personal Care Advisor pre- cer

tifies that the fac ility substantially complies.” R. 1-2, Pag e I D #12-13 (empha sis added)

. - 7 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. I n seeking summary judgme nt, Transa merica arg ued that Crutchfield never re q uested

co v er age o n the basis that Ba rton House substantially complied. R. 55, Pag e I D #737-38. Crutchfield responde d by alleg ing that she reque sted such cover ag e “throug h the appea ls proce ss,” but also stated that any pre- cer tification reque st “would have been futile.” R. 58, Pag e I D #777. On appea l, she arg ues at various points in her briefing that she “ask[ed] Transa merica to approve Ba

rton House” as substantially complying, Appellant Br

. at 13, that she “soug ht Transa merica ’s appr oval for her ca re at Ba rt on House, and then appea led

. . . ,” Appellant Br

. at 30, that she soug ht precer tification “throug h the ap p ea l s proce ss,” Appellant Reply Br

. at 15, and that Transa merica “dete rmined that Ba

rton House did not substantially comply with the policy ’s definition of ‘nursing home.’” Appellant Reply Br . at 16. But neither in her summary judgme nt briefing nor in her appellate briefing does Crutchfield point to any evidenc e supporting the conclusion that she either (1) reque sted cover ag e on the basis that Ba rton House substantially complied with the definition of “Nur sing Home,” or that (2) Transa merica denied cover ag e on the basis that Ba rton House did not substantially comply

. The only evidenc e she points to is de position testimony g ener ally descr ibing Transa merica ’s claims appea ls proce ss, see Weurdig Dep., Pag e I D # 9 0 3

- 1 1 , a n d deposition testimony descr ibing why Crutchfield’s initial reque st for Nursing Home Be nefits was denied. See Weurdig Dep., Pag e I D # 921-23. None of this testimony discusses whether Crutchf ie ld r e q u e s te d pre- cer

tification, or whether Transa merica denied pre- cer

tificat i o n on the basis that Ba rton House did not substantially comply with the definition of “Nur sing Home.” I n other words, Crutchfield is c halleng ing a deter mination that she has not shown was e ver e ven made

. - 8 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. I n opposing Transa

merica ’s summary judgme nt motion, it was Crutchfield’s burden to produce evidenc e demonst ra t i n g q u estions of fact as to whether she requested pre-c ertifica tion or whether Transa

merica denied such a reque st. Newell Rubbermaid, Inc. , 676 F.3d at 533. Her burden

on this issue was mag nified afte r T ra n s am erica specific ally asser ted that Crutchfield never even

ma d e a p r e - c e r

ti f ication reque st. Whil e Crutchfield alleg es that she soug ht pre- cer tification “throug h the appea ls proce ss,” it is baff ling that she never supported that asser tion by producing her orig inal claim for benef

its, her orig inal claim fo rm , the document appea ling the denial of benef its, or Transa merica ’s letter deny ing the appea l. Simpl y put, the rec ord is void of any evidenc e that a precer tification reque st was made in any form, or that Transa merica denied a pre- cer

tification reque st. The policy unambig uously states that a fac ility like Ba rton House may be approve d, “ but only if ” it is pre- cer tified. R. 1-2, Pag e I D #12-13 (empha sis added)

. Ba sed on the absenc e of rec ord evidenc e showing that such a reque st was even m ade, it was not err or for the d i s t rict court to conclude that Crutchfield fa iled to meet this primary policy require ment. Crutchfield’s brea ch of contra ct claim is based on the premise that Transa merica wrong fully denied her benef

its under the policy ’s substantial compliance provision. But as disc u s s ed above, Crutchfield has failed to show that Transa merica ever made that decision. Crutchfield’s arg uments

on appea l (that benef

its wer e wrong fully denied beca use the policy langua ge i s ambig uous and should be construed i n her favor, and that benef its wer e wrong fully denied be cause Ba rton House substantially complies with the definition of “Nur sing Home”) are based entirely on this same faulty premise. Ac cording ly , we de cline to addr ess those ar g uments.

- 9 -No. 12-6276

Crutchfield v. Transamerica Occ idental Lif e Insuranc e Co. For the fore g oing r easons, we AF F IRM the district court’s gr ant of summary judgme nt in favor of Tra nsameric a.

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