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Bancroft v. Minnesota Life Insurance Co.

United States District Court, W.D. Washington, Seattle

February 20, 2018





         Before the court is Plaintiff Colin Bancroft's motion for summary judgment on his claims that Defendant Minnesota Life Insurance Company (“Minnesota Life”) breached their insurance contract, acted in bad faith, violated Washington's Insurance Fair Conduct Act (“IFCA”), and violated Washington's Consumer Protection Act. (MSJ (Dkt. # 7).) Minnesota Life opposes Mr. Bancroft's motion on substantive grounds and also on the basis of Federal Rule of Civil Procedure 56(d). (Resp. (Dkt. # 21).) Specifically, with regard to Rule 56(d), Minnesota Life argues that it is entitled to engage in discovery prior to responding to Mr. Bancroft's motion. (Id. at 8 -10.) The court has considered the motion, Minnesota Life's response, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court (1) grants Minnesota Life's request for relief under Rule 56(d), and (2) denies Mr. Bancroft's motion for summary judgment but without prejudice to refiling, if appropriate, following discovery.


         Mr. Bancroft is an employee of King County. (Bancroft Decl. (Dkt. # 8) ¶ 2.) Minnesota Life issued a Group Term Life Insurance Policy (“the Policy”) to King County. (Compl. (Dkt. # 1-1) ¶ 4; Ans. (Dkt. # 4) ¶ 4.) As a part of his benefits package from King County, Mr. Bancroft is covered under this policy. (Compl. ¶ 6; Ans. ¶ 6.) The Policy's Basic Life Insurance pays one year's salary upon acceptance of a claim. (Compl. ¶ 6; Ans. ¶ 6.) Mr. Bancroft also paid for Supplemental Life Insurance which provides for an additional four years of salary as a death benefit. (Id.)

         Included in the Policy is an Accelerated Benefits Policy Rider (“the ABPR”), which provides “for the accelerated payment of . . . the full . . . amount of an insured's death benefit . . . [i]f the insured has a terminal condition as defined in the [ABPR].” (Marisseau Decl. (Dkt. # 16) ¶ 4, Ex. A.) The ABPR defines a “terminal condition” as “a condition caused by sickness or accident which directly results in a life expectancy of twenty-four months or less.” (Id.) The insured must request the accelerated payment and give Minnesota Life “evidence that satisfies [Minnesota Life] that the insured's life expectancy, because of sickness or accident, is twenty-four months or less.” (Id.) The evidence that the insured provides “must include certification by a physician.” (Id.) Minnesota Life also “reserve[s] the right to ask for independent medical verification of a terminal condition.” (Id.) Additionally, it “retain[s] the right to have the insured medically examined at [its] own expense to verify the insured's medical condition.” (Id.) Finally, “[i]n the case of a difference of opinion, the insured has the right to mediation or binding arbitration conducted by a disinterested third party who has no ongoing relationship with either party.” (Id.)

         After undergoing a series of tests in late January 2017, Dr. Sherry Hu diagnosed Mr. Bancroft with stage IV mantle cell lymphoma on February 1, 2017, and recommended immediate treatment. (Bancroft Decl. ¶ 6.) On February 6, 2017, Mr. Bancroft came under the care of Dr. Andrew Cowan. (Id.) Mr. Bancroft chose to see Dr. Cowan because he is an oncologist with expertise in mantle cell lymphoma. (Id.) Dr. Cowan prescribed a treatment regime, and Mr. Bancroft started chemotherapy on February 17, 2017. (Id. ¶ 7.)

         After his diagnosis, Mr. Bancroft completed a Notice of Claim for Accelerated Benefit, which was a form provided by Minnesota Life. (Id. ¶ 11, Ex. C.) Mr. Bancroft submitted this claim form to Minnesota Life on or about May 16, 2017. (Id.) He requested payment of “100%” of the accelerated benefit at that time. (Id.)

         Dr. Cowan filled out the “Attending Physician's Statement, ” which was part of the form Minnesota Life provided. (See Id. at 5-6.) Dr. Cowan stated that Mr. Bancroft was “diagnosed w/Stage IV Mantel Cell Lymphoma high risk leukemia presentation w/elevated LDH.” (Id. at 5.) He also stated that Mr. Bancroft was undergoing VR-CAP treatment, [2] his Mantel Cell Lymphoma International prognostic index (“MIPI”) score was 7.2, [3] and his progress was “[i]mproved.” (Id. at 5-6.) Based on a 2007 “publication in cancer (PMID 17477385), ” Dr. Cowan opined that “the median survival for [Mr. Bancroft] would be 24 months.” (Id. at 6; see also Id. ¶ 16, Ex. G.) The paper on which Dr. Cowan based his conclusion was published before the MIPI score was developed in 2008. (Shapland Decl. ¶ 18.) Dr. Cowan provided his own contact information, as well as the contact information for Dr. Hu. (Bancroft Decl. ¶ 11, Ex. C at 6.) The Attending Physician's Statement included the following request: “Please Attach Medical Records.” (Id.) Dr. Cowan did not attach any medical records. (See id.)

         Upon receipt of Mr. Bancroft's claim, Minnesota Life forwarded it to its medical reviewer, Dr. Maryam Shapland, for an evaluation of Mr. Bancroft's prognosis. (See Shapland Decl. ¶ 7.) The MIPI score is a “well-recognized evidence based prognostic index for patients with mantle cell lymphoma.” (Id. ¶ 8.) A physician can determine an MIPI for any individual diagnosed with mantle cell lymphoma based on four independent factors: age, performance status, lactate dehydrogenase (“LDH”) and leukocyte count. (Id. ¶ 9.) A biologic MIPI includes those same four factors but also includes analysis of Ki-67 positive cells. (Id.) An MIPI score from 6-12 is considered to be a high-risk MIPI score. (Id. ¶ 10.) Mr. Bancroft's attending physician, Dr. Cowan, scored Mr. Bancroft's MIPI at 7.2. (Id.; Bancroft Decl. ¶ 11, Ex. C at 5.) The 2008 report that first identified the MIPI score indicated that patients with a high-risk MIPI score had a median overall survival of 29 months and patients with a high-risk biologic MIPI score had a median overall survival of 37 months. (Shapland Decl. ¶ 11.) The use of the MIPI score to determine overall survival was confirmed in a later 2014 study. (Id. ¶ 12.) In the 2014 study, a younger group with high-risk MIPI scores had a medial overall survival of 46 months. (Id.) The elderly group with a high-risk MIPI score has a median overall survival of 31 months. (Id.) The median overall survival for the entire group was 34 months. (Id.)

         Dr. Shapland considered the information in the Attending Physician's Statement, including Mr. Bancroft's MIPI score, his leukemic presentation, his VR-CAP treatment, as well as Dr. Cowan's assessment that Mr. Bancroft had “[i]mproved” and that Dr. Cowan expected “a fundamental or marked” “[i]mprovement” in Mr. Bancroft's condition. (Id. ¶¶ 13, 17.) In addition, Dr. Shapland considered the fact that VR-CAP treatment is considered superior to the type of treatment that the patients in the 2014 study received; that VR-CAP was not in use when the 2007 paper, upon which Dr. Cowan relied, was written; and that studies published since 2007 demonstrate that life expectancy for patients with mantle cell lymphoma is improving based on the emergence of new treatments, such as VR-CAP. (See Id. ¶¶ 14-20.) Based on all of this information, Dr. Shapland opined that the median survival for Mr. Bancroft was greater than 24 months. (Id. ¶ 21.)

         Dr. Shapland did not contact either Dr. Cowan or Dr. Hu prior to reaching her opinion. (See generally id.; see also Cowan Decl. (Dkt. # 9) ¶¶ 11, 15; Hu Decl. (Dkt # 10) ¶ 9.) Further, Minnesota Life did not seek an independent medical examination of Mr. Bancroft. (Bancroft Decl. ¶ 12.)

         On June 8, 2017, Minnesota Life sent a letter to Mr. Bancroft regarding his claim, stating that “[a]t this time, we are unable to consider this benefit.” (Bancroft Decl. ¶ 16, Ex. D; Marisseay Decl. ¶ 6, Ex. C.) Minnesota Life explained:

With the information we received from your doctor, we are unable to determine, at this time, if your life expectancy will be less than 24 months, which the policy requires. Your doctor did indicate on the claim form that your condition was terminal and provided a life expectancy of 24 months. Per medical literature, median survival for your diagnosis is 37 months. You were diagnosed in January 2017. You are currently undergoing treatment and your physician states that your condition has improved and marked change (improvement) is continued to be expected. We understand that this is a difficult and sensitive issue. Please be assured this is not a permanent denial of benefits. At this time, however, the medical information does not support a life expectancy of 24 months or less, which the ...

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