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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DONNA L. ISLER, 

Plaintiff,

v. CASE NO. 1:10-cv-00178-MP-GRJ

BANKERS LIFE AND CASUALTY COMPANY, 

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 29, Defendant's Motion for Summary

Judgment and Incorporated Memorandum of Law in Support. The plaintiff failed to

respond in a timely manner under N.D. Fla. Loc. R. 7.1(C), but did provide various

documents and evidentiary materials prior to the advisement date, pursuant to N.D. Fla.

Loc. R.56.1. Thus, the Court has considered these documents and evidentiary

materials but did not consider the arguments contained in the untimely response. For

the reasons set out below, Defendant's Motion for Summary Judgment (Doc. 29) is due

to be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff Donna Isler entered into a long-term care insurance policy with

defendant Bankers Life and Casualty Company in October of 1998. See Exhibit A to

defendant's Statement of Facts, Doc. 30, attach. #1, at p. 1. Among other things, the

policy states that the insurer would pay "the actual charges incurred for ... the Maximum

Weekly Benefit amount for the total of all Part II Home Health Care." Id. at p. 5 (page 8

of the PDF). This duty to pay, however, was subject to certain conditions for benefit

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eligibility. 

The condition that is relevant to this case is the following: "[b]efore benefits will

be payable for a Family Member's Covered Expenses; (1) a Licensed Health Care

Practitioner must certify that expenses for Qualified Long-Term Care Services are

needed because a Family Member is Chronically Ill..." Id. at 4 (p. 7 of pdf). In order to

be "chronically ill," an insured must have been "certified by a Licensed Health Care

Practitioner within the preceding 12 month period as: 

1. being Functionally Incapacitated for a period expected to last at least 90

days; or 

2. having a Cognitive Impairment." 

Id. There is no issue of cognitive impairment in this case, so the insured would have to

satisfy the "functionally incapacitated" prong to be eligible for benefits.

The policy defines "functional incapacity" as follows:

"Functional Incapacity" means one's inability to engage in two or more of the

activities of adult daily living, listed below, without the Hands-on Assistance or

Standby Assistance of another person. Such Functional Incapacity must be

expected to last at least 90 days. The activities of adult daily living used to

measure Functional Incapacity and their definitions are:

 "Bathing" - to wash oneself by sponge bath; or in either a tub or shower,

including the task of getting into or out of the tub or shower. 

"Continence" - the ability to maintain control of bowel and bladder

function: or, when unable to maintain control of bowel or bladder function,

the ability to perform associated personal hygiene (including caring for a

catheter or colostomy bag). 

"Dressing" - putting on and taking off all items of clothing and any

necessary braces, fasteners or artificial limbs.

"Eating" - feeding oneself by getting food into the body from a table, a

plate, cup or other receptacle or by a feeding tube or intravenously. 

"Toileting" - getting to and from the toilet, getting on and off the toilet, and

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performing associated personal hygiene. 

"Transferring" - moving into or out of a bed, chair or wheelchair. 

"Hands-on Assistance" means physical assistance without which one

would be unable to perform an activity of adult daily living. 

"Standby Assistance" means another person must be within arm's reach

of an individual to prevent, by physical intervention if necessary, injury

while performing an activity of adult daily living. 

"Substantial Supervision" means continual supervision (which may include

cuing by verbal prompting, gestures or other demonstrations) by another

person that is necessary to protect a Cognitively Impaired person from

threats to his or her own health or safety.

Id. 

On December 4, 2008, the insurer sent a letter to the insured indicating that her

request for home health care benefits was approved from July 17, 2008, to March 17,

2009. Exhibit B to Complaint, found at Doc. 1, attach. 1, p. 27 of the pdf. However, the

letter also indicated that her eligibility for benefits would be reassessed before

extending benefits beyond March 17, 2009. Id.

During 2009, the insurer found the insured no longer eligible for home health

care benefits. A letter, dated May 27, 2009, seemed to suggest that her health care

provider at the time, Marian Johnson, had not sent proper documentation to the insurer

to certify that the insured was receiving eligible benefits from Ms. Johnson. See Exhibit

C to Complaint, found at Doc. 1, attach. 1, p. 28 of the pdf. Later, in November of

2009, the insured hired Comfort Keepers, who the parties appear to agree is a

Licensed Health Care Practitioner as defined by the policy. Complaint, Doc. 1, attach.

1, ¶ 25. 

At first, Comfort Keepers failed to certify that the expenses for its long-term care

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services were needed by the insured for hands-on or standby assistance with two

activities of adult daily living. Id. at ¶ 27; see also Exhibit G to defendant's Statement of

Facts, Doc. 30, attach. 7, p. 2 of pdf (Plan of Care prepared by Comfort Keepers on

November 10, 2009, including handwritten note, "per conversation with the client,

Comfort Keepers will not be providing personal care!" (underline and exclamation point

in original)). Thus, the insurer continued to deny coverage. See, e.g., Exhibit D to

Complaint, Doc. 1, attach. 1, p. 33 of pdf. (letter from defendant of June 15, 2010,

rejecting coverage because the insured was not considered "functionally incapacitated"

for a period expected to last at least 90 days.) 

However, plaintiff has offered evidentiary material that, starting in January 2010,

the invoices prepared by Comfort Keepers for each week and submitted to defendant,

appear to show that hands-on or standby assistance with two activities of adult daily

living was provided by Comfort Keeper to the insured. See id. at Exhibit E, found at p.

30-31 of pdf. Plaintiff has also offered deposition testimony of Rita Bennett, a corporate

representative of defendant, who examined defendant's file on plaintiff and verified that

defendant had received at least five reports from the licensed health care practitioner

which indicated that the practitioner had provided hands-on or standby assistance with

two activities of daily living on a regular basis. Bennett Depo., Exhibit A to Doc. 36, pp.

6-7 of pdf. Nevertheless, defendant has never resumed providing benefits to the

plaintiff.

The plaintiff filed a five-count complaint in state court, which was removed to

federal court. Doc. 1. In Count 1, the plaintiff asserts that defendant violated Fla. Stat.

§ 626.9541(1)(i)(3)(f) which defines the following as "an unfair method of competition or

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unfair or deceptive act or practice":

(3) Committing or performing with such frequency as to indicate a general

business practice any of the following:...(f) Failing to promptly provide a

reasonable explanation in writing to the insured of the basis in the

insurance policy, in relation to the facts or applicable law, for denial of a

claim or for the offer of a compromise settlement.

In Count 2, the plaintiff claims that defendant violated § 626.9541(1)(i)(3)(d) which

defines the following as "an unfair method of competition or unfair or deceptive act or

practice":

(3) Committing or performing with such frequency as to indicate a general

business practice any of the following:...(d) Denying claims without

conducting reasonable investigations based upon available information.

In Count 3, the plaintiff charges a violation of § 624.155(1)(b)(1), which provides that 1

(1) Any person may bring a civil action against an insurer when such

person is damaged...(b) by the commission of any of the following acts by

the insurer: 1. Not attempting in good faith to settle claims when, under all

the circumstances, it could and should have done so, had it acted fairly

and honestly toward its insured and with due regard for her or his

interests.

Count 4 alleges breach of the insurance contract by defendant, and Count 5 argues

that, by refusing to pay Comfort Keepers despite receiving invoices allegedly justifying

payment, defendant tortiously interfered with the contract between Comfort Keepers

and the plaintiff.

II. STANDARD FOR SUMMARY JUDGMENT 

Pursuant to Federal Rule of Civil Procedure 56(c), the entry of summary

The complaint refers to Fla. Stat. § 624.955(1)(b)(1), which does not exist. The 1

Court assumes that plaintiff was referring to the civil remedy provisions found at Fla. Stat.

§ 624.155(1)(b)(1), which concerns the requirement to exercise good faith in settling

insurance claims.

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judgment is appropriate only when the Court is satisfied that “there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” In applying this standard, the Court must examine the pleadings, depositions,

answers to interrogatories, and admissions on file, together with any affidavits and other

evidence in the record "in the light most favorable to the non-moving party." Samples

on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). As the

Supreme Court held in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the moving party

bears the initial burden of establishing the nonexistence of a triable issue of fact. If the

movant is successful on this score, the burden of production shifts to the non-moving

party who must then come forward with “sufficient evidence of every element that he or

she must prove.” Rollins v. Techsouth, 833 F.2d 1525, 1528 (11th Cir. 1987). The nonmoving party may not simply rest on the pleadings, but must use affidavits, depositions,

answers to interrogatories, or other admissible evidence to demonstrate that a material

fact issue remains to be tried.

III. DISCUSSION

Defendant first argues on summary judgment that it properly denied benefits to

plaintiff because she is not chronically ill under the policy. Since it properly denied

benefits, the defendant concludes, it is not liable under Count 4 alleging breach of

contract, and it is also not liable under Counts 1, 2 and 3, which allege violations of

various Florida Statutes regarding the way in which it settled the plaintiff's claims.

The defendant admits that "[i]ndeed, the Comfort Keeper care notes provided for

the Plaintiff from January 19, 2010 to April 1, 2010 state that Plaintiff received various

levels of assistance with bathing and/or dressing. (Care Notes, Exh. K)", which would

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constitute the required two activities of adult daily living. Doc. 29 p. 5. However, the

defendant still urges the Court to find no genuine issue of material fact as to whether

the plaintiff was eligible, arguing the following:

the notes are inconsistent from day to day and are inconsistent with the

plan of care developed by Comfort Keepers itself. (Id.; 01/14/10 Plan of

Care, Exh. H). This inconsistency serves as further evidence that the

Insured does not “need” services because she is not Chronically Ill.

(Policy, Exh. A, p. 4).

Id. at p. 5. While this may be some evidence of a lack of need, the plaintiff has

countered that evidence with documentary and testimonial evidence that tends to show

the need for hands-on or standby assistance with two activities of adult daily living, in

the form of the care reports and the deposition testimony of Ms. Bennett. Accordingly,

summary judgment is not appropriate on this issue. Therefore, summary judgment is

not appropriate for the reasons offered by defendant on Counts 1,2,3, and 4.

Defendant also seeks summary judgment on Count 5, plaintiff's tortious

interference claim. In order to state a cause of action for tortious interference, a plaintiff

must allege: (1) the existence of a business relationship; (2) knowledge of the

relationship on the part of the defendant; (3) an intentional and unjustified interference

with the relationship by the defendant; and (4) damages to the plaintiff as a result of the

breach of the relationship. Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127

(Fla.1985); Sec. Title Guarantee Corp. of Baltimore v. McDill Columbus Corp., 543

So.2d 852, 854 (Fla. 2d DCA 1989). Here, plaintiff has offered no evidence whatsoever

of an intent by the insurer to interfere with the contractual relationship between Comfort

Keepers and the insured. The failure to provide allegations or evidence of intent is fatal

to this count. McKinney-Green, Inc. v. Davis, 606 So.2d 393, 397-398 (Fla. Ct. App. 1

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Dist. 1992)(“The gravamen of an action for tortious interference with a contractual

relationship is the malicious interference by a third party with a contract between other

persons, whereby one contracting party is induced to breach the contract to the injury of

the other”). Summary judgment is therefore appropriate for the defendant on this claim.

Next, the Court agrees with the defendant that plaintiff's demand for damages for

emotional distress must be rejected under Florida law. First, the plaintiff herself may no

longer even be seeking such damages, having answered the question "Are you

claiming damages for emotional distress?" with "Not at this time." See Exhibit C to

defendant's Statement of Facts, Doc. 30, attach. 3, p. 68 of depo., p. 11 of pdf. 

Additionally, the Florida Supreme Court recently explained the dichotomy of cases in

which plaintiffs can recover emotional distress damages in negligence cases in Willis v.

Gami Golden Glades, LLC, 967 So.2d 846 (Fla.,2007):

In Florida, the prerequisites for recovery for negligent infliction of

emotional distress differ depending on whether the plaintiff has or has not

suffered a physical impact from an external force. If the plaintiff has

suffered an impact, Florida courts permit recovery for emotional distress

stemming from the incident during which the impact occurred, and not

merely the impact itself. If, however, the plaintiff has not suffered an

impact, the complained-of mental distress must be “manifested by

physical injury,” the plaintiff must be “involved” in the incident by seeing,

hearing, or arriving on the scene as the traumatizing event occurs, and the

plaintiff must suffer the complained-of mental distress and accompanying

physical impairment “within a short time” of the incident.

 

Id. at 849 (quoting Eagle Picher Industries, Inc. v. Cox, 481 So. 2d 517, 526 (Fla. 3d

DCA 1985)). Plaintiff has not alleged or provided evidence of any kind of physical

impact or immediate manifestation of physical injury. Likewise, in order to recover

damages for intentional infliction of emotional distress, plaintiff would have to prove that

"the conduct was outrageous...as to go beyond all bounds of decency, and to be

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regarded as odious and utterly intolerable in a civilized community." Stewart v. Walker,

5 So.3d 746, 749 (Fla.App. 4 Dist.,2009). The alleged conduct in this case, even if

proven, does not come close to rising to this level.

Finally, the Court must consider, sua sponte, whether plaintiff is premature in

bringing Count 3, which seeks the statutory civil remedy under Florida Statutes §

624.155 for the insurer's alleged bad faith for failing to properly settle the claim. Under

Florida law, a claim for bad faith against an insurer does not accrue and, therefore, is

premature until insurance coverage has been determined. Vest v. Travelers Insurance

Co., 753 So. 2d 1270, 1276 (Fla. 2000). See also Blanchard v. State Farm Mutual

Automobile Insurance Co., 575 So. 2d 1289, 1291 (Fla. 1991) (“[A]n insured’s

underlying first-party action for insurance benefits against the insurer necessarily must

be resolved favorably to the insured before the cause of action for bad faith in

settlement negotiations can accrue.”); Doan v. John Hancock Mutual Life Insurance

Co., 727 So. 2d 400, 403 (Fla. Dist. Ct. App. 1999) (finding that the holding in

Blanchard was not limited to cases involving uninsured motorist insurance and receding

from a previous decision from the same Florida District Court of Appeal, in which it held

to the contrary). Moreover, this rule has been applied even when recovery under the

policy in the case is not conditioned upon proof of a third-party’s liability. Although both

Vest and Blanchard stemmed from claims against the insured by third-party tortfeasors,

the rule in Vest and Blanchard has not been limited to claims only involving proof of a

third party’s liability. To the contrary, the rule that bad faith claims are premature until

liability under the first-party policy has been determined has been applied to a broad

array of claims against insurers, including claims for failing to pay their insureds under

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long term disability insurance policies, collision benefits under an automobile policy,

2 3

damages to a building from a fire under a builder’s risk policy, and hurricane damages 4

to a property under a property insurance policy.5

Here, Bankers Life claims that it is not required to pay under the policy because

Ms. Isler does not meet the definition of chronically ill under the policy. Until a

determination has been made that the insurer is liable on the subject policy it is simply

premature for the insured to prosecute a claim for bad faith under § 624.155. The

preferred approach for addressing a premature claim for bad faith is to abate the bad

faith claim until the liability of the insurer under the policy has been determined, rather

than dismissing the claim. Accordingly, Count 3 should be abated until such time as 6

the Court has determined whether the insurer is liable to pay under the subject policy

for the claimed loss.

Doan, 727 So.2d 400; see also, Fishkin v. The Guardian Life Insurance Company

2

of America, 22 F.Supp.2d 1365 (S.D. Fla. 1998)(“Plaintiff cannot assert his bad faith claim

based on Guardian’s denial of his claim ... until liability ... [has] been resolved on the

underlying causes of action.”).

 Allstate Insurance Co. v. Baughman, 741 So.2d 624 (Fla. Dist. Ct. App. 1999) 3

Hartford Insurance Company v. Mainstream Construction Group, 864 So.2d 1270, 4

1272 (Fla. Dist. Ct. App. 2004)(“We conclude that these claims [bad faith claims by an

insured who seeks to sue his own insurance company] may only be brought after coverage

and contractual issues between the insured and the insurer are resolved ... “).

Liberty Mutual Insurance Company v. The Farm, Inc., 754 So.2d 865 (Fla. Dist. Ct. 5

App. 2000).

See, Mainstream Construction Group, 864 So.2d at 1273 (“The trial court should 6

either dismiss count IV without prejudice or abate count IV pending resolution of the

coverage issues”); Baughman, 741 So.2d at 626 (directing lower court to dismiss without

prejudice or abate the bad faith claim until the breach of contract claim was resolved.)

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IV. RECOMMENDATION

It is respectfully RECOMMENDED that the defendant's Motion for Summary

Judgment (Doc. 29) be GRANTED IN PART and DENIED IN PART, and this case set

for pretrial conference. Additionally, it is recommended that the bad faith claim in Count

3 be abated until resolution of the issues of liability under the policy.

IN CHAMBERS this 19 day of December, 2011. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections

to the proposed findings and recommendations within 14 days after being served

with a copy of this report and recommendation. A party may respond to another

party’s objections within 14 days after being served with a copy thereof. Failure to

file specific objections limits the scope of review of proposed factual findings and

recommendations.

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