Nationwide keeps MacGuffin in the plot with Opposition to Politz motions

Since needless repetition can suggest mental health issues, could it be that Nationwide’s handling of the Politz claim has caused the Company emotional distress, too?

Maybe so.   Defendant Nationwide’s 18-page Response in Opposition to Plaintiff’s Motion for Review of Magistrate Judge’s Order, of course, has more pages than the 12-page, trimmed-down revised version filed as Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to Designate Mental Health Expert.

With enough similarities in text and exhibits to make a case for stress-related repetition, it takes a while to realize that Nationwide is making the mental health of Mrs. Politz a MacGuffin in the litigation of Politz v Nationwide:

A MacGuffin (sometimes McGuffin) is “a plot element that catches the viewers’ attention or drives the plot of a work of fiction…Commonly, though not always, the MacGuffin is the central focus of the film in the first act, and later declines in importance as the struggles and motivations of characters play out. Sometimes the MacGuffin is all but forgotten by the end of the film.

In making her mental health a MacGuffin, Nationwide employs the classic abuse strategy of blame the victim:

Plaintiff (not Nationwide) had all the relevant information about her treatment and use of antidepressant medications in order to properly retain and disclose a mental-health expert. Moreover, she had all of this information at the time she filed this action and, thus, well in advance of the Court’s original expert deadline.

Opposition to Plaintiff’s Motion to Designate Mental Health Expert

And, then, with this distracting statement in place, Nationwide builds its case with a supporting time line allegedly documenting the record in this case is replete with instances where Nationwide has sought, but Plaintiff has refused access, to relevant, discoverable information.

The only reason the parties have not already gone to trial is because Plaintiff has repeatedly provided late disclosures, refused to cooperate with Defendant’s discovery requests, and sought extensions of the discovery deadline.

Following the related time line, however, moves attention in the wrong direction – away from events important to her claim:

Plaintiffs, John Politz and Helen Politz filed their Complaint in this action on January 17, 2008. Defendant Nationwide answered Plaintiffs’ Complaint on or about February 7, 2008…

Mr. John Politz departed from this life on or about the 22nd day of April, 2008. Plaintiff Helen J. Politz shall continue her pursuit in this litigation.

Politz suggestion of death

July 19, 2007  –  2 years and 3 moves following Hurricane Katrina; 5 months after Mrs. Politz had open heart surgery; and 9 months before the death of Mr. Politz –

a Nationwide Claims Representative sent Plaintiffs’ counsel a letter stating he was sorry an agreeable resolution could not be reached and enclosed a check in the amount of $30,339.57 for damages which Nationwide believes it owes to the Plaintiffs and that they understand Plaintiffs do not agree with the amount.

Politz Complaint

April 4, 2008 – 18 days before the death of Mr. Politz, Judge Senter entered a Memorandum Opinion in Dickinson v Nationwide:

Nationwide contends that because there was flood damage to the insured property the anti-concurrent causation provision of the policy applies and negates the plaintiffs’ claim for wind damage. Nationwide also contends that its prior payments of $9,266.26 fully satisfies the plaintiffs’ claim for additional living expenses. The plaintiffs have acknowledged that there were no additional buildings other than the dwelling on
site, and there is no claim under the “Other Structures” coverage of this policy. Thus the remaining coverages at issue here are for wind damage to the dwelling and the personal property it contained at the time of the storm and for additional living expenses.

Nationwide asserts that the plaintiffs’ claims of negligence, gross negligence, reckless disregard of the rights of the plaintiffs, and bad faith in adjusting the plaintiffs’ claims are groundless and should be disposed of summarily. Thus, the central remaining issues in this case are: 1) whether plaintiffs are entitled to collect additional benefits under their Nationwide policy for wind damage to the insured property, and 2) whether the plaintiffs are entitled to any additional relief for their other claims against Nationwide (negligence, gross negligence, reckless disregard of their rights, and bad faith)…

Based on the passage concerning the anti-concurrent cause provision in the Fifth Circuit’s opinion in Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 4149 (5th Cir. 2007), Nationwide offers a very broad interpretation of this policy language, asserting that any insured property that sustains hurricane damage from the forces of both wind and water falls within this policy exclusion. I am of the opinion that Nationwide’s interpretation is far too broad. It appears to me that Nationwide is attempting to expand the analysis of the Leonard panel beyond any reasonable limit and beyond the holding of that case.

Dickinson v Nationwide

April 2, 2008 –  20 days before the death of Mr. Politz, the docket shows the Scheduling Order setting deadlines for Politz v Nationwide.

04/03/2008  SCHEDULING ORDER: CJRA Track : Standard. Amended Pleadings due by 4/30/2008, Joinder of Parties due by 4/30/2008, Designate Experts Plaintiff Deadline due by 6/16/2008…, Designate Experts for Defendant Deadline due by  Signed by Magistrate Judge Robert H. Walker on April 2, 2008 (JR) (Entered: 4/03/2008)

Docket Report

May 20, 2008 – less than 30 days following the death of Mr. Politz, the Mississippi Supreme Court agrees to hear Corban v USAA , an Interlocutory Appeal of the 5th Circuit’s  August 30, 2007 Opinion in Leonard v Nationwide, an Erie-guess:

Nationwide’s ACC clause is not ambiguous, nor does Mississippi law preempt the causation regime the clause applies to hurricane claims.

FCA Leonard Opinion

June 12, 2008 – 40 days following the death of Mr. Politz  and four (4) days before Plaintiff’s deadline to designate experts , the docket shows:

06/12/2008 TEXT ONLY ORDER granting unopposed Motion for Extension of Time to Complete Discovery. Plaintiffs’ expert designation deadline is extended to 7/16/2008; Defendants’ expert designation deadline is extended to 8/18/2008…  Signed by Magistrate Judge Robert H. Walker on June 12, 2008. (Joffe, Scherry) (Entered: 06/12/2008)

Docket Report

June 18, 2008 – less than 60 days following the death of Mr. Politz, the docket shows:

06/18/2008  NOTICE of Service of Response to Request for Production by John Politz, Helen Politz (Carter, Kristopher) (Entered: 06/18/2008)

06/18/2008  NOTICE of Service of Response to Interrogatories by John Politz, Helen Politz (Carter, Kristopher) (Entered: 06/18/2008)

06/18/2008  NOTICE of Service of Disclosure by John Politz, Helen Politz (Carter, Kristopher) (Entered: 06/18/2008)

Docket Report

July 17, 2008 – less than 90 days following the death of Mr. Politz, the docket shows:

07/16/2008  Designation of Experts by Helen Politz (Carter, Cristopher) (Entered: 07/16/2008)

Docket Report

Mrs. Politz met the extended deadlines of the agreed to motion; Nationwide lawyered up; and a relatively uneventful discovery moved along until November 14, 2008  – the date of the first deposition of Mrs. Politz and the birth of Nationwide’s MacGuffin.

Only on November 14, 2008 — the day discovery was originally set to close in this case — did Plaintiff reveal that she had in fact sought treatment for emotional distress. (See Nov. 20, 2008 Mot. To Strike Pl’s. Claim for Emotional Distress (Dtk. 110).)

Over the next several months, Nationwide worked diligently to secure Mrs. Politz’s medical records and depose her treating physicians. But none of that discovery revealed that Mrs. Politz’s alleged emotional distress was caused by Nationwide. (See Apr. 7, 2008 Nationwide’s Supplemental Mot. For Summ. J. (Dkt. 258).)

Nevertheless, Plaintiff still sought to pursue her claim for emotional-distress damages — without the support of expert testimony and with only her (and potentially her treating physician’s) testimony to support the claim. Nationwide therefore believes that Mrs. Politz will attempt to create the impression that she sought treatment for emotional injuries from her treating physician, Dr. Mark Babo, and that he prescribed her antidepressant medication as a result of Nationwide’s adjustment of her claim.

Opposition to Plaintiff’s Motion to Designate Mental Health Expert

March 24, 2009 – 4 months after her first deposition and 11 months after the death of Mr. Politz, Nationwide’s second deposition of Mrs. Politz gave the Company the  opportunity to grow the MacGuffin:

Plaintiff also has a history of providing “newly discovered” information late into discovery, thereby attempting to prevent Defendant from securing more information about these new disclosures. For example, in her second deposition on March 24, 2009, Plaintiff revealed for the first time that she may have been prescribed antidepressant medications by an OB-GYN who had not been previously disclosed. This revelation was, of course, in direct violation of the Court’s January 27, 2009 Order mandating that “[o]n or before February 2, 2009, Plaintiff shall provide to Nationwide the names and addresses of all treating physicians of plaintiff Helen Politz.” (Jan. 27, 2009 Order at 1.)

Opposition to Plaintiff’s Motion to Designate Mental Health Expert

March 27, 2009 – almost a year after issuing the Memorandum Opinion in Dickinson v Nationwide, Judge Senter affirms Dickinson in a Memorandum Opinion in Politz v Nationwide:

Nationwide asserts that it makes no difference whether the insured property sustained damage from a covered cause (wind or rain that enters through a breach in the walls, windows, or roof of the insured dwelling) before being further damaged by storm surge flooding.

In Dickinson v. Nationwide, 2008 WL 1913957, I addressed Nationwide’s argument on this point at considerable length. Suffice to say, it is still my view that Nationwide’s concurrent cause language does not exclude any covered damage to the insured property that occurs before the damage done by storm surge flooding.

Politz v Nationwide

However, Judge Senter also limited, and later clarified, the admissible testimony on Mrs. Politz’s claim of emotional distress:

While Mrs. Politz may, in good faith, have the subjective belief that Nationwide’s refusal of her claim for storm damage contributed to her heart condition and to her “depression,” I will not permit her to express that belief in the absence of corroborating medical testimony.

Politz v Nationwide

Nonetheless, Nationwide pressed the MacGuffin to the point that Judge Walker granted the Company’s motion and ordered Mrs. Politz to complete a mental health exam – the only way, in light of the history of discovery in this case, Nationwide believes that it will get an accurate and complete picture of Plaintiff’s mental health.

Nationwide’s MacGuffin is driving the plot; yet, no where is it documented that Mrs. Politz alleged Nationwide’s handling of her claim caused her to seek mental health treatment or use antidepressant medications.

What is it then that makes this seemingly irrelevant information relevant to the litigation of Politz v Nationwide?

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