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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Manuel Roman, 

Plaintiff, 

v. 

Berkshire Hathaway Homestate Insurance 

Co., 

Defendant. 

No. CV-15-02447-PHX-NVW

ORDER 

 Before the Court is Defendant’s Motion for Summary Judgment. (Doc. 55). For 

the following reasons, the Motion will be granted. 

I. LEGAL STANDARD

 Summary judgment should be granted if the evidence reveals no genuine dispute 

of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. 

Civ. P. 56(a). A material fact is one that might affect the outcome of the suit under the 

governing law, and a factual dispute is genuine “if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). It is the moving party’s burden to show there are no genuine 

disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon such a 

showing, however, the burden shifts to the non-moving party, who must then “set forth 

specific facts showing that there is a genuine issue for trial” without simply resting on the 

pleadings. Anderson, 477 U.S. at 256. To carry this burden, the non-moving party must 
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do more than simply show there is “some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

Where the record, taken as a whole, could not lead a rational trier of fact to find for the 

non-moving party, there is no genuine issue for trial. Id. at 587. 

II. UNDISPUTED MATERIAL FACTS

 Plaintiff Manuel Roman (“Roman”) worked as a truck driver for Shipper’s West 

Truckline, Inc. On September 3, 2013, he fell from the company truck as he exited the 

cab and suffered a head injury. A few days later, on September 7, 2013, Roman went to 

the emergency room at Wheaton Franciscan Healthcare (“Wheaton”) in Wisconsin. At 

Wheaton, he was diagnosed with systolic hypertension and a concussion. 

 Roman next sought medical care on October 11, 2013, at Arrowhead Regional 

Medical Center (“Arrowhead”) in California. At Arrowhead, a CT scan and examination 

revealed a subdural hematoma. Roman received a subdural drain to dispel blood and 

relieve pressure and was discharged on October 15, 2013. The discharge instructions 

noted that Roman should “Resume Normal Activity and Return to work” the next day. 

Roman returned to Arrowhead on October 31, 2013. The physician’s notes from that 

appointment concluded: “Today the patient is doing well, with no symptoms, no 

complaints, including denies pain or any neurological deficit.” 

 Roman filed a Worker’s Report of Injury with the Industrial Commission of 

Arizona (“ICA”) on or around November 8, 2013. In the report, Roman noted he 

suffered a “brain injury” described as a “blood clot in brain.” The report also included 

contact information for Roman’s employer and limited information about medical 

treatment Roman received. 

 Neither Roman nor his employer notified Berkshire Hathaway Homestate 

Insurance Co. (“Berkshire”) of Roman’s injury after the incident. Berkshire first learned 

of Roman’s claim when it received a “Notification of Claim” from the ICA, dated 

November 14, 2013. The notification is a one-page document. It does not provide any 

contact information for Roman, specify the nature or extent of any injury, or indicate 
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whether Roman sought or received any medical treatment. Although the notification is 

dated November 14, 2013, the record does not reveal when Berkshire actually received it. 

 On November 22, 2013, Berkshire opened a claim file based on the notification, 

and by November 25, it had assigned an adjuster to handle the claim. The assignment 

directed the adjuster to “verify [Roman’s] correct mailing address” and “obtain other 

missing info,” explaining the file was set up based on limited information. It also stated 

that Berkshire unsuccessfully attempted to find Roman’s address before assigning the file 

to the adjuster. 

 The adjuster began evaluating the claim on the same day he received it. His first 

contact was a phone call with the employer on November 25, 2013. The employer 

informed the adjuster that Roman had not reported an injury and that his final day with 

the company was on September 13, 2013. The adjuster called again two days later, on 

November 27, to request Roman’s correct contact information, but was unable to reach 

the employer or leave a message. The adjuster called again on December 2 and emailed 

on December 4 to request Roman’s correct contact information. Finally, on December 5, 

after obtaining Roman’s phone number, the adjuster contacted Roman to discuss his 

claim. He described the conversation in his notes as follows: 

I was able to speak with [Roman], but he did not go into specifics of the 

claim or his injury. He informed me that he needs medical treatment and 

that he has suffered brain hemorrhaging. He also informed me that he did 

report the injury to his employer and that his injury is due to his employer’s 

negligence. When I asked [Roman] to provide more information about the 

claim and injury, he indicated that he would prefer to have an attorney 

speak with me; [Roman] was not willing to continue the conversation. I 

provided my contact information and instructed [Roman] to have his 

attorney contact me as soon as possible.” 

That same day, the claims adjuster called the employer. The employer again informed 

him it “never received any report of injury from [Roman]” and that Roman drove an 

additional ten days after his injury. 

 Based on this preliminary investigation, the adjuster concluded he needed more 

information to determine the compensability of Roman’s claim. He noted in the claims 
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diary: “As neither the claimant nor the employer were able to provide any information 

about the alleged injury, the compensability of said injury is in question.” Accordingly, 

on December 6, 2013, Berkshire submitted a “Notice of Claim Status” to the ICA, which 

indicated Roman’s claim was denied pending further investigation. 

 The claims adjuster called Roman again on December 6. In that call, he obtained 

more information about the incident and medical care Roman received, including phone 

numbers for both Wheaton and Arrowhead. He called both facilities that same day and 

requested Roman’s medical records. The Wheaton records arrived on December 19, 

2013, and indicated two diagnoses: systolic hypertension and a concussion. The records 

also showed a neurosurgeon reviewed the medical findings, including a CT scan, and 

concluded they were “not consistent with traumatic injury.” 

 The adjuster made multiple efforts to procure the records from Arrowhead. He 

sent a faxed request for records, as Arrowhead required, on December 6. The request 

was not processed, however, and in a follow-up call with the hospital on January 3, 2014, 

the hospital required another faxed request. The adjuster sent another request that same 

day and then another on January 7, 2014. On January 17, 2014, he called Arrowhead to 

check on the request. The hospital said it was more than two weeks behind on processing 

such requests and suggested he call back the following week. He did so on January 24, 

2014. In that call, Arrowhead confirmed it had processed the request and that the records 

would be mailed either that same day or the next business day. Berkshire received the 

Arrowhead records on January 30, 2014. The records indicated Roman suffered a 

subdural hematoma and received a subdural drain to dispel blood and relieve pressure. 

They made no finding of a concussion. 

 On February 3, 2014, within days of receiving and reviewing the Arrowhead 

records, the adjuster sought to schedule an independent medical examination (“IME”). 

The appointment was scheduled for February 27, 2014, with an independent neurologist, 

Dr. Leo Kahn. Dr. Kahn concluded, in a report received no earlier than March 3, 2014, 

that Roman’s “subdural hematoma is directly related to the 09/03/13 industrial injury” 
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and that his treatment at Arrowhead was “in essence life-saving.” Based on this report, 

Berkshire accepted Roman’s claim on March 6, 2014. Berkshire has paid all of Roman’s 

medical bills submitted to it for related medical treatment since that time. 

 Roman filed this action on December 2, 2015. The lawsuit alleges Berkshire 

breached its duty of good faith and fair dealing in handling Roman’s workers’ 

compensation claim and seeks compensatory and punitive damages. Berkshire moves for 

summary judgment on all claims. 

III. ANALYSIS

 Berkshire argues it is entitled to judgment as a matter of law on Roman’s bad faith 

claim because (1) there is no evidence of a causal link between the alleged injury and 

Berkshire’s “repeated delays” in processing Roman’s claim and (2) Roman’s claim was 

fairly debatable. Berkshire further argues (3) the evidence does not support a claim for 

punitive damages. Each argument is addressed in turn. 

 A. Proximate Causation 

 “An insurer’s bad faith handling of an insurance claim, like any other tort, is 

analyzed according to the principles of duty, breach, and proximately caused damages.” 

Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 900 (9th Cir. 2012). “Proximate 

cause is found where, without any intervening cause and without the defendant’s act, the 

injury would not have occurred.” Ferguson v. Cash, Sullivan & Cross Ins. Agency, Inc., 

171 Ariz. 381, 386, 831 P.2d 380, 385 (App. 1991). 

 Roman alleges Berkshire’s “repeated delays” in processing his claim resulted in 

compensable injury. But Roman was injured on September 3, 2013, and Berkshire had 

no notice of his claim until receiving the “Notification of Claim,” dated November 14, 

2013, from the ICA. Thus, the relevant period for which Berkshire may be liable for any 

aggravation of his medical condition is from the time it first received the November 14, 

2013 notification and when it later accepted the claim on March 6, 2014. 

 In his deposition, Roman’s treating neurologist, Dr. Michael A. Epstein, testified 

Roman probably would have had a better outcome had he been treated in a more timely 
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fashion. He testified the overall delay in treatment affected Roman, but could not say 

“with any degree of medical certainty” whether (1) the delay between Roman’s injury 

and Berkshire’s notification of his claim or (2) the delay between Berkshire’s notification 

and when it later accepted the claim made more of a difference. Indeed, he testified, “I 

can’t say which delay absolutely made the critical difference at all.” Thus, the testimony 

of Dr. Epstein does not establish with any degree of medical certainty that Berkshire 

proximately caused Roman’s aggravation of injury. Roman’s failure to present any 

expert testimony to establish this causal link is fatal to his claim. See Gentry v. 

Daugherity, CV-13-02136-PHX-ESW, 2015 WL 1346097, at *3 (D. Ariz. Mar. 24, 2015) 

(“Unless an injury is obvious to the jury, expert medical testimony is required to establish 

the nature and extent of the injury as well as its relationship to the accident.”); Rasor v. 

Nw. Hosp., LLC, 239 Ariz. 546, 550, 373 P.3d 563, 566 (App. 2016) (“Expert medical 

testimony is . . . generally required to establish proximate cause unless a causal 

relationship is readily apparent to the trier of fact.”). Therefore, Berkshire is entitled to 

summary judgment on that component of damages. 

 Roman does not directly address the causation argument in his response. He does 

argue, however, that he is entitled to damages for mental anguish, pain and suffering, 

financial damage, and loss of enjoyment of life. See Mendoza v. McDonald’s Corp., 222 

Ariz. 139, 149, 213 P.3d 288, 298 (App. 2009). Roman prayed for such damages in the 

complaint (Doc. 1, at 10-11.) and expert medical testimony is not needed to establish 

such damages. Accordingly, Berkshire is not entitled to summary judgment on this 

component of damages for lack of evidence of causation. 

 B. Bad Faith

 Summary judgment must be granted against Roman’s bad faith claim for lack of 

bad faith. Bad faith arises when an insurer “intentionally denies, fails to process, or pay a 

claim without a reasonable basis.” Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 

234, 237, 995 P.2d 276, 279 (2000) (quotation omitted). The tort of bad faith has two 

elements: (1) that the insurer acted unreasonably toward the insured and (2) that the 
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insurer acted knowingly or with reckless disregard of the unreasonableness of its actions. 

See id. at 238. Unreasonable actions include failure to “immediately conduct an adequate 

investigation,” failure to “act promptly in paying a legitimate claim,” “forc[ing] an 

insured to go through needless adversarial hoops to achieve its rights under the policy,” 

and “lowball[ing] claims.” Id. An insurer may challenge claims which, after adequate 

investigation, are “fairly debatable.” Id. at 237. “But . . . while fair debatability is a 

necessary condition to avoid a claim of bad faith, it is not always a sufficient condition.” 

Id. at 238. 

 Roman points to three separate actions by Berkshire which he argues constitutes 

bad faith. First, Berkshire failed to provide equal consideration to Roman because it 

instructed its adjusters to target and deny claims, as opposed to honestly investigate the 

facts and evidence. Second, Berkshire failed to adequately investigate the claim because 

it delayed initiating its claims process for eight days, failed to contact Roman for 20 days, 

and failed to contact medical providers for 21 days. Third, Berkshire required an IME, 

which was not necessary for a compensability determination related to Roman’s 

concussion and subdural hematoma. None of these arguments has merit. 

 1. Policy or Practice of Berkshire 

 The first argument – that Berkshire instructed its adjusters to target and deny 

claims – is unsupported by the record. Roman hinges this argument on a single quote 

within a three-page “Claims Bulletin” of the insurer, which states: “The majority of 

delays and investigate denials are issued to gather information needed to support a 

denial.” As an initial matter, it is perfectly proper for an insurer to seek information to 

support a denial. The insured must also seek out the information that would support a 

claim. In any event, the quote is misleading when read in isolation. As the Bulletin 

explains, there are four “strategic tracks” when evaluating the compensability of a claim, 

including the initial “Investigate” track, which is where the quote is found. The 

Investigate track is used when “[t]he Claims Professional does not have enough 

information to make a compensability determination.” The track is merely one of several 
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stages in evaluating a claim. As the Bulletin makes clear, additional action will always 

follow the completion of an investigation, including accepting a claim: “The Investigate 

strategic track will always result in additional action to be taken once the investigation 

has been completed. In some instances it will mean accepting the claim . . . .” In short, 

the very document on which Roman relies says all investigation will be done. Moreover, 

there is no evidence here that the adjuster failed to investigate or give equal consideration 

to all of the facts and circumstances favorable to Roman. The investigation was prompt 

and earnest. Berkshire sought out the evidence favorable to Roman. 

 2. Adequacy of Investigation 

 The second argument regarding Berkshire’s investigation similarly fails because 

the investigation indisputably was adequate. As discussed above, neither Roman nor 

Roman’s employer notified Berkshire of the injury he suffered on September 3, 2013. 

Ten weeks passed before Roman filed a worker’s compensation claim with the ICA and 

more than another week passed before Berkshire first learned the claim. The 

“Notification of Claim” is a one-page document that does not include information about 

the nature or extent of Roman’s injury, the medical treatment he received, or Roman’s 

address or phone number. 

 Roman complains about the adequacy of the investigation from when Berkshire 

received the ICA notification and when it submitted a response on December 6, 2013. 

The record does not indicate when Berkshire received the notification. However, even 

assuming it was received on the earliest possible date, November 14, 2013, the record 

shows Berkshire opened a case file within seven business days, on November 22. By 

November 25, Berkshire assigned a claims adjuster to evaluate the claim and had 

attempted at least once to verify Roman’s contact information. 

 On the same day the adjuster received the file, November 25, he started 

investigating the claim. He contacted the employer at least four times from November 25 

to December 4 to discuss the claim and to try to obtain Roman’s correct contact 

information. When he finally received Roman’s contact information, the adjuster 
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promptly called Roman on December 5. In that call, Roman “did not go into specifics of 

the claim or his injury.” As the adjuster noted, “When I asked [Roman] to provide more 

information about the claim and injury, he indicated that he would prefer to have an 

attorney speak with me; [Roman] was not willing to continue the conversation. I 

provided my contact information and instructed [Roman] to have his attorney contact me 

as soon as possible.” 

 Neither Roman nor his attorney called the adjuster back by the next day, 

December 6, 2013, the deadline for Berkshire to file its notice of claim status with the 

ICA. However, the adjuster did reach Roman by phone again that day and learned more 

about Roman’s injury and medical treatment he received, including phone numbers for 

both Wheaton and Arrowhead. Berkshire was in no way at fault for not reaching Roman 

earlier and not contacting the then-unknown medical providers earlier. 

 Roman complains that “[e]ven after Defendant finally contacted Mr. Roman, 

Defendant continued to delay its investigation,” citing the length of time it took to receive 

the medical records. But on the same day the adjuster received the contact information 

for both Wheaton and Arrowhead, December 6, he called both facilities to request 

Roman’s medical records and sent faxed requests as well. The Wheaton records arrived 

within two weeks, on December 19. The Arrowhead records arrived several weeks later, 

on January 30, 2014. The adjuster’s efforts in the interim were far from unreasonable: 

between December 6, 2013, and January 24, 2014 (when Arrowhead confirmed it had 

processed the request), the adjuster called or faxed Arrowhead on at least six separate 

occasions to try to obtain the records. Berkshire is not responsible for the medical 

providers’ delays in sending medical records despite Berkshire’s repeated requests. 

 Moreover, on February 3, 2014, within days of receiving the Arrowhead records 

on January 30, 2014, the adjuster sought to schedule an IME. The IME occurred on 

February 27, 2014, which was prompt. Based on the IME report, which Berkshire 

received no earlier than March 3, 2014, Roman’s claim was accepted on March 6, 2014. 
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 In sum, the record reveals the investigation was adequate.1 

 3. Independent Medical Examination 

 Finally, Roman attacks Berkshire’s decision to schedule an IME, asserting it was 

not necessary for making a compensability determination. An insurer is entitled to seek 

an independent medical examination not only to determine a claimant’s need for 

treatment, Mendoza, 222 Ariz. at 159, 213 P.3d at 308, but also “to ensure further 

medical treatment is necessary.” Demetrulias v. Wal-Mart Stores Inc., 917 F. Supp. 2d 

993, 1007 (D. Ariz. 2013). In addition, an insurer may reasonably schedule an IME to 

determine the cause and extent of an injury. See, e.g., Bronick v. State Farm Mut. Auto. 

Ins. Co., CV-11-01442-PHX-JAT, 2013 WL 3716600, at *9-12 (D. Ariz. July 15, 2013) 

(granting insurer’s motion for summary judgment on bad faith claim even though insurer 

required plaintiff to attend an IME to determine the cause of plaintiff’s injury). 

 Here the medical records gave a focused need for an IME. The Wheaton records 

indicate Roman went to the emergency room a few days after the fall reporting a 

headache that would not resolve. Roman reported a history of hypertension and not 

being complaint with his medications. As was later explained, the headaches Roman 

complained of “may . . . have been amplified by uncontrolled hypertension.” The 

Wheaton records unclearly presented the nature of Roman’s injury and were divergent in 

that they indicated a concussion yet concluded Roman’s symptoms were “not consistent 

with traumatic injury.” The Arrowhead records identified a subdural hematoma, which 

required a subdural drain to dispel the blood, but not a concussion. The Arrowhead 

discharge report noted Roman could return to work the next day and the notes from his 

 

1

 There was no slack in Berkshire’s investigation. But even if there was, that 

would not make a case of bad faith. See Rawlings v. Apodaca, 151 Ariz. 149, 157, 726 

P.2d 565, 573 (1986) (“Insurance companies . . . are far from perfect. Papers get lost, telephone messages misplaced and claims ignored because paperwork was misfiled or improperly processed. Such isolated mischances may result in a claim being unpaid or delayed. None of these mistakes will ordinarily constitute a breach of the implied covenant of good faith and fair dealing, even though the company may render itself liable for at least nominal damages for breach of contract in failing to pay the claim.”); Miel v. 

State Farm Mut. Auto. Ins. Co., 185 Ariz. 104, 110, 912 P.2d 1333, 1339 (App. 1995) (“Mere mistake and inadvertence are not sufficient to establish a claim for bad faith.”). 
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follow-up appointment stated: “Today the patient is doing well, with no symptoms, no 

complaints, including denies pain or any neurological deficit. The patient did not need all 

of his pain medicines per his report.” 

 The medical records thus raised questions regarding the nature, cause and extent 

of Roman’s injury. For example, the records did not establish whether or when Roman’s 

subdural hematoma resolved; the extent to which Roman’s uncontrolled hypertension 

played a role; whether Roman’s delay in seeking treatment impacted his condition; and 

whether the treatment Roman received was reasonable and necessary. In light of the 

conflicting records and unresolved questions, the insurer reasonably sought an IME to 

assess the compensability of Roman’s claim. Berkshire asked the IME physician to 

answer the following questions: 

1. Please advise Mr. Roman’s diagnosis from both Wheaton Franciscan 

Healthcare and Arrowhead Regional Medical Center. Please explain the 

diagnosis in relation to his method of injury. 

2. Please address whether assuming there is some injury attributable to the 

fall on 09/03/13 his delay in seeking treatment or reporting to his 

employer made or makes [it] more difficult to investigate. 

3. Do you feel the recommended surgical treatment was reasonable and 

necessary? Please explain. 

4. Has Mr. Roman reached maximum medical improvement in relation to 

the 09/03/13 injury, and if so on what date? 

5. If Mr. Roman has not reached maximum medical improvement, what 

type of medical treatment would you recommend? 

6. Has Mr. Roman sustained any permanent impairment in relation to the 

09/03/13 injury? 

7. Please address work capabilities in relation to the 09/03/13 injury. 

(Doc. 61, Ex. 14 at 4-6.) 

 Based on the assessment of the IME physician, Berkshire promptly accepted 

Roman’s claim. Thus, contrary to Roman’s characterization, the IME was not “an 
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unnecessary hoop,” but rather a reasonable part of the investigation. As there is no 

evidence of bad faith, summary judgment on this claim will be granted. 

C. Punitive Damages

 To receive punitive damages, a defendant must be liable for bad faith and “a 

plaintiff must prove by clear and convincing evidence that the defendant’s conduct was 

undertaken with an evil mind.” Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 517, 144 

P.3d 519, 532 (App. 2006) (quotation omitted). As discussed above, Berkshire is not 

liable for bad faith; therefore, punitive damages are not available. But even if Berkshire 

were liable on the tort claim, there would still be an insufficient basis for punitive 

damages. An “evil mind” requires either that the “defendant intended to injure the 

plaintiff” or that the “defendant consciously pursued a course of conduct knowing that it 

created a substantial risk of significant harm to others.” Rawlings, 151 Ariz. at 162, 726 

P.2d at 578. Here the undisputed evidence does not allow an inference of either. 

Summary judgment will be granted against Roman’s claim for punitive damages. 

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment 

(Doc. 55) is granted. 

 IT IS FURTHER ORDERED that the Clerk enter judgment against Plaintiff on his 

complaint and in favor of Defendant, and that Plaintiff take nothing. 

 The Clerk shall terminate this case. 

Dated this 6th day of September, 2017.