United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
L. ROBART UNITED STATES DISTRICT JUDGE.
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,  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,
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.)
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.)
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.)
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.)
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,  his Mantel Cell
Lymphoma International prognostic index (“MIPI”)
score was 7.2,  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.)
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.
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.)
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.)
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
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 ...