1 2 3 4 5 UNITED STATES DISTRICT COURT 6

NORTHERN DISTRICT OF CALIFORNIA

7

8

9 FRANK EMERSON and MARIA EMERSON, by her guardian ad litem, 10 FRANK EMERSON No. C 23-02158 WHA

11 Plaintiffs,

12 v.

ORDER RE MOTION FOR PARTIAL

SUMMARY JUDGMENT

13 THE PRUDENTIAL INSURANCE

COMPANY OF AMERICA,

14 Defendant. 15

16 INTRODUCTION 17 In this denial-of-coverage case, the insurer concedes that a reasonable jury could 18 conclude the insurer breached its policy. Because a reasonable jury could also conclude that 19 the insurer did so in bad faith, the insurer’s motion for partial summary judgment as to that 20 issue (and punitive damages) must be rejected. That said, the insurer’s motion for partial 21 summary judgment as to the insured’s husband’s emotional distress claim is granted. 22 STATEMENT 23 These facts are undisputed except where stated: 24 1. THE LONG-TERM CARE INSURANCE POLICY. 25 The insured’s husband, Frank Emerson, for decades sold policies for Prudential 26 Insurance Company of America (Dkt. No. 51 (“Emerson Decl.”) ¶ 4). In 2002, he bought one 27 for himself and one for his wife, Maria Emerson, the insured here (id. ¶ 5). Under these long- 1 cover certain care needed to live with them (see, e.g., Dkt. No. 52-1 Exh. 56 (“Guidelines”) 4). 2 Mrs. Emerson’s policy had certain optional benefits and eligibility criteria, as follows: 3 Mrs. Emerson’s premiums accounted for her age: After the policy’s immediate effective 4 date, so long as she suffered from qualifying conditions, it promised to pay benefits regardless 5 of her relative youth when such conditions befell her (see Dkt. No. 46-2 Exh. 1 (“Policy”) 17). 6 Similarly, Mrs. Emerson paid more upfront for the option of cash benefits later: So long 7 as she suffered from qualifying conditions, the policy promised to pay her cash even if she did 8 not “incur charges and submit a bill” (see Policy: Cash Benefit Rider 1). This came at extra 9 cost and would ease care management in the home and from varied providers (Guidelines 126). 10 As for the qualifying conditions, the policy defined two triggers: loss of ability to 11 perform activities of daily living and cognitive impairments threatening health and safety: 12 In order to receive benefits you must FIRST be assessed by an Assessor and confirmed as having a Chronic Illness or Disability. 13 A Chronic Illness or Disability is one in which there is: (1) A loss of the ability to perform, without Substantial Assistance, 14 at least two Activities of Daily Living. This loss must be expected to continue for at least 90 consecutive days. 15 Activities of Daily Living are: Bathing, Continence, Dressing, Eating, Toileting, and Transferring; or 16 (2) A severe Cognitive Impairment, which requires Substantial Supervision to protect you from threats to health and safety. 17 18 (Policy 11 (emphases added)). 19 The first trigger’s “loss of the ability to perform” was not expressly defined in the policy. 20 “Substantial Assistance” was defined as either the “physical assistance” or the “constant 21 presence of another person within arm’s reach that is necessary to prevent, by physical 22 intervention, injury to you while you are performing an Activity of Daily Living” (id. at 8). 23 All agree that the caretaker’s active or standby assistance had to be physical to qualify (like 24 “holding the person and bathing them,” to use Prudential’s example (Tr. 34)). But Prudential 25 further contends that the insured’s “loss of the ability to perform” itself had to stem from a 26 physical condition (not from a mental one) (see ibid.). 27 The second trigger’s “severe Cognitive Impairment” was not fully defined, either. 1 A loss or deterioration in intellectual capacity that is: (1) Comparable to and includes Alzheimer’s disease and similar 2 forms of irreversible dementia; (2) Measured by clinical evidence and standardized tests that 3 reliably measure impairment in the individual’s: (a) short-term or long[-]term memory; 4 (b) orientation as to people, places, or time and (c) deductive or abstract reasoning. 5 6 (Policy 5). The parties disagree, however, as to how “severe” an impairment had to be to 7 qualify. And, Prudential contends that the insured’s “cognitive impairment” had to emerge 8 from a neurological problem (not a psychiatric one). “Substantial Supervision” was defined as 9 “[c]ontinual oversight that may include cueing by verbal prompting, gestures, or other 10 demonstrations by another person, and which is necessary to protect you from threats to your 11 health or safety” (see id. at 8). 12 At oral argument, Prudential conceded that while the limitations could be read in the way 13 Prudential favors, they could also be read against the way Prudential favors: The policy, the 14 insurer said, “doesn’t exclude [an underlying psychiatric condition], but it does not cover it” 15 (Tr. 34). 16 Finally, as to whether the policy’s terms incorporated outside meanings that could clear 17 away ambiguity, all agree that the policy was based on provisions in the tax code. The policy 18 itself stated it “intended to be a federally [tax-]qualified Long Term care insurance contract” 19 (Policy 1, 20 (emphasis added)). The policy’s terms, however, did not perfectly parrot the tax 20 code (compare, e.g., 26 U.S.C. § 7702B(c)(2)(A) (2002) (defining “chronically ill individual” 21 with three triggers), with Policy at 11 (defining “chronic illness” with two triggers)). And, the 22 policy made clear that its terms governed except where “[p]ublic guidance issued by the 23 Internal Revenue Service or Treasury Department [provides] that a provision of this Policy 24 does not comply with the requirements of Code Section 7702B” (see Policy 20). No party 25 points to specific guidance from a tax authority stating that any provision of this policy was or 26 is noncompliant. And, Prudential, which at first said the statute further limited the policy’s 27 terms, now says the parties are “stuck with the wording of the policy” (see Tr. 33). 1 For this order, while each side asserts conflicting views of what Mrs. Emerson’s policy in 2 fact meant, the immediate question is whether Prudential’s reading of the policy was so 3 distorted as to constitute bad faith. 4 2. THE BENEFITS APPROVED AND DENIED UNDER THE POLICY. 5 A. 2012–2019: MRS. EMERSON’S BENEFITS APPROVED. 6 Starting in 2012, Mrs. Emerson submitted claims against her policy (see Emerson Decl. 7 ¶¶ 7–10). Between 2012 and 2019, Prudential annually reassessed her and awarded the 8 relatively youthful Mrs. Emerson cash benefits based on her cognitive impairments (see ibid.; 9 Dkt. No. 46-2 ¶¶ 7–9). The parties now dispute whether Mrs. Emerson ever even qualified 10 under the cognitive-impairment prong. And, they dispute whether she ever even submitted 11 claims seeking approval under the activities-of-daily living prong, or qualified under it, or 12 could be denied benefits because she submitted claims intending to show one trigger when they 13 in fact showed the other. (Her 2015 assessment, for instance, revealed “a need for ADL 14 assistance related to a cognitive impairment” (see Dkt. No. 52 Exh. 38 at -2599).) 15 Those disputes are only indirectly at issue in this action, however: Mrs. Emerson’s 16 medical history may bear on her later medical condition, and Prudential’s past claim 17 processing may inform whether its later claim processing was in bad faith, for instance. But 18 the suit contests only the 2020 reassessment that ended in her claim being denied in 2021. 19 B. 2020: MRS. EMERSON’S BENEFITS DENIED. 20 In 2019, Prudential launched an initiative focused on “fraud, waste, and abuse” in long- 21 term care policies like those the Emersons had bought, which Prudential long ago had decided 22 to stop issuing (see, e.g., Dkt. No. 52 Exh. 26 at 40–41; Dkt. No. 52 Exh. 28 at 44–46). 23 In April 2020, Prudential staff involved in its anti-fraud initiative flagged Mrs. Emerson’s 24 policy for deeper review for three underlying reasons all agree on: Her age, her cash benefits, 25 and her home care (see Br. 6 n.10; Opp. 8 n.6). Prudential further contends that one of its flags 26 concerned not merely that she was receiving cash benefits and home care but that untracked 27 expenses in a home setting were out-of-step with her stated needs, whereas Mrs. Emerson 1 by personalized annotations at the time, and not consistent with the next steps taken (cf. Br. 6 2 n.10; see Dkt. No. 52-1 Exh. 72 (“Spreadsheet”); Dkt. No. 46-1 Exh. E 112–14 (testifying to 3 spreadsheet notes and next steps)). In short, Prudential says it flagged predictors of fraud, 4 waste, and abuse (Br. 5–6), whereas Mrs. Emerson contends it flagged the exact benefits of the 5 bargain struck, predictors only of Prudential’s unwanted costs (Opp. 8 & n.6; Tr. 22–23). 6 Around October 2020, and for the first time since her claim was flagged, Mrs. Emerson’s 7 annual reassessment began (see Dkt. No. 46-2 ¶ 4; Dkt. No. 46-3 Exh. 10 at -5974). 8 Prudential’s third-party claim administrator, CHCS, Inc., saw a “priority” flag in their jointly 9 accessible claims system (see, e.g., Dkt. No. 52 Exh. 25 at 79–80; Dkt. No. 52 Exh. 23 at 142– 10 44; Dkt. No. 46-3 ¶ 4). All agree that the ensuing review was unlike any Mrs. Emerson had 11 experienced before. Prudential contends its fraud team did not influence the investigation nor 12 its outcome, and that the process simply reflected renewed but reasonable rigor; Mrs. Emerson 13 contends the fraud team pushed the CHCS investigation towards just one conclusion — 14 denial — with disregard for her conditions and policy (see Opp. 9–14). 15 The investigative timeline was as follows:

16 • In November 2020, CHCS asked Prudential’s fraud team whether to ask Mrs. Emerson’s psychiatrist to complete a more thorough 17 benefits-eligibility assessment, or instead to have CHCS’s bariatrics-trained medical director review the file without that 18 information; the fraud team advised immediate review (see, e.g., Dkt. No. 46-3 Exh. 10 at -5973; Dkt. No. 52 Exh. 23 at 131–32; 19 Spreadsheet 2; Opp. 9–10 & nn.7–8 (collecting cites));

20 • In December 2020, CHCS’s medical director, Dr. John Nye, concluded from her file that Mrs. Emerson was not eligible 21 because she (1) could perform activities of daily living, disagreeing with her examining physician, and (2) lacked a “neuro-cognitive” 22 disorder, deviating from policy language (compare Dkt. No. 46-2 Exh. 5 (“Nye Reports”) -1257–58, with Dkt. No. 52 Exh. 35 at - 23 1233–34, and Policy 5, 11; see also Opp. 10);

24 • In January 2021, CHCS tasked Dr. Nye with a second review of her file; Dr. Nye newly concluded Mrs. Emerson was not eligible 25 because, again deviating from policy language, (1) her “inability to perform” activities of daily living was “psychiatric-based,” not 26 “functional,” and (2) she required “substantial supervision” due only to a “psychiatric issue,” not “a neurocognitive impairment” 27 (see Nye Reports -1364–65; see also Opp. 10–11); (through a third-party network) to review (1) just four of six 1 activities of daily living for “loss of functional capacity” and (2) cognitive conditions, emphasizing “neurocognitive” as opposed to 2 “psychiatric” conditions (Dkt. No. 46-3 Exh. 12 at -6605–07); even with such instruction, Dr. Yuppa concluded that (1) Mrs. Emerson 3 did have issues performing three activities of daily living (Dkt. No. 46-3 Exh. 13 at -1390–92), but (2) did not have a severe 4 cognitive impairment (see id. at -1390; see also Opp. 11–12);

5 • Regardless, on February 25, 2021, the same day Prudential and CHCS held a “discussion,” Prudential drafted a four-page denial 6 letter by 10:35 a.m. in the morning, and then CHCS’s Dr. Nye conducted in the afternoon his third review, again denying 7 coverage; Dr. Nye dismissed Dr. Yuppa’s findings by sating “there have been no medical records which indicate dysfunction of the 8 arms or lower extremities” (see Dkt. No. 52-1 Exhs. 65–66 (re discussions); Dkt. No. 52-1 Exh. 77 at -3553–57 (draft denial); 9 Nye Reports at -1398);

10 • In March 2021, Prudential conferred with counsel (see Dkt. No. 52-1 Exh. 90), then hired a surveillance team that showed 11 Mrs. Emerson stayed home except to “travel[] to a medical dental building” with “her husband” driving (Dkt. No. 52-1 Exh. 79 at - 12 6619; see also Dkt. No. 46-1 Exh. E at 86–88);

13 • In May 2021, CHCS hired and instructed Dr. Maya Yustis (through a third-party network) to look for, like Dr. Yuppa, “a loss 14 of functional capacity OR . . . severe cognitive impairment” (Dkt. No. 52-1 Exh. 81 at -6639); Dr. Yustis reported in August 2021 15 that (1) her “[r]eview of records more likely than not supported a psychiatrically-based inability (anxiety, psychosis, depression) to 16 perform ADLs,” while (2) her testing “results were more likely than not invalid in describing [Mrs. Emerson’s] overall cognitive 17 functioning level and its impact on functional limitations” (Dkt. No. 46-3 Exh. 16 at -1799, 1802 (emphases added); see also Dkt. 18 No. 52 Exh. 27 at 91–93, 115; Opp. 13);

19 • In September 2021, Prudential’s fraud team discussed Dr. Yustis’s “peculiar” report (Dkt. No. 52 Exh. 23 at 239–40), then drafted 20 “language to be used” to deny benefits (id. at 244–45; see Dkt. No. 52 Exh. 68 at -7360; Opp. 14). 21 22 Finally, in October 2021, Prudential’s fraud team instructed its claims administrator, 23 CHCS: “We drafted a potential closing letter that can be used. If the review disagrees with 24 what is proposed in the letter, please let us know as soon as possible and we can set up time 25 t[o] discuss further” (Dkt. No. 52-1 Exh. 70 at -7375). It attached the letter (see ibid.). After 26 CHCS’s review, Prudential reattached its denial letter and reiterated, “Please advise if you are 27 in agreement, or let me know if you have any issues or changes” (id. at -7374; see also Dkt. 1 unchanged except for its date — to Mrs. Emerson to reject coverage for her claims (see Dkt. 2 No. 46-2 Exh. 7 at -1651–53). 3 From the first CHCS email in the record to final denial, the process lasted one year to the 4 day (compare ibid., with Dkt. No. 46-3 Exh. 10 at -5974). 5 In 2023, the Emersons sued in state court for breach of contract, bad-faith denial of 6 contract benefits, and emotional distress (Dkt. No. 1). Prudential removed for diversity, then 7 answered (Dkt. Nos. 1, 13). With trial approaching, Prudential now moves for partial 8 summary judgment on all claims in the case except breach of contract. 9 ANALYSIS 10 1. THE MOTION AS TO BAD-FAITH DENIAL OF BENEFITS. 11 Prudential first moves for summary judgment on Mrs. Emerson’s tort claim that it denied 12 her policy benefits in bad faith, on Mr. Emerson’s parallel tort claim, and thus on any chance 13 for punitive damages. 14 A. MRS. EMERSON’S CLAIM. 15 At trial, Mrs. Emerson ultimately must show that “(1) benefits due under the [insurance] 16 policy were withheld; and [that] (2) the reason for withholding benefits was unreasonable or 17 without proper cause.” Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) (citing 18 Love v. Fire Ins. Exch., 221 Cal. App. 3d 1136, 1151 (1990)) (emphasis added). 19 For this motion, however, Prudential must only show that one of those prongs cannot be 20 met, see Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000), and 21 here Prudential is further limited to showing only that the second prong cannot be met 22 (unreasonable denial). That limitation is required because Prudential does not move for 23 summary judgment on breach of contract, which underlays the first prong (benefits due) (Br. 1 24 n.1; Reply 8 n.5). This order thus must construe that disputed issue, which entails material 25 facts, to favor the non-moving party for now. See, e.g., Villiarimo v. Aloha Island Air, Inc., 26 281 F.3d 1054, 1061 (9th Cir. 2002). Prudential sometimes says as much (see, e.g., Br. 17; 27 Tr. 3–4). Especially on reply, however, it slips into contending the contract and/or medical 1 postures (e.g., Reply 1, 2–4 (citing, e.g., Benavides v. State Farm Gen. Ins. Co., 136 Cal. App. 2 4th 1241, 1252 (2006) (policy did not cover loss, precluding bad-faith denial); GGIS Ins. Servs. 3 Inc. v. Superior Ct., 168 Cal. App. 4th 1493, 1508 (2008) (similar); Hackethal v. Nat’l Cas. 4 Co., 189 Cal. App. 3d 1102, 1111 (1987) (similar)). This order ignores those contentions, 5 except as they inform the second prong, reasonableness. 6 Here, based on the record, a reasonable jury could find in favor of Mrs. Emerson that 7 Prudential denied her 2020 claim in bad faith, as follows: Prudential reported large losses from 8 its long-term care policies and, in 2019, launched a “fraud, waste, and abuse” initiative focused 9 on them (see, e.g., Dkt. No. 52 Exh. 26 at 39–41; Dkt. No. 52 Exh. 28 at 44–46). That team 10 flagged Mrs. Emerson’s claim because she received cash payments, despite her youth, while 11 being cared for at home, which were all contracted-for benefits of the bargain (compare, e.g., 12 Spreadsheet 6, and Dkt. No. 46-1 Exh. E 112–14, with Policy 17, and Policy: Cash Benefit 13 Rider 1)). Prudential did not find fraud and never referred her file to its corporate-level fraud 14 department nor to law enforcement (Br. 6 n.9 (conceding and citing records)). Instead, 15 Prudential found Mrs. Emerson suffered real impairments of some kind (e.g., Br. 18; Dkt. 16 No. 46-2 Exh. 7 at -1652). But, a reasonable jury could find, it took steps to avoid paying for 17 them: First, Prudential alerted its third-party claim administrator that the file was a “priority” 18 for review and involved itself in that review, periodically drafting denial letters (see, e.g., Dkt. 19 No. 46-1 Exh. E 17–18, 191). Second, Prudential (through its claims administrator) hired 20 doctors and influenced them to assess Mrs. Emerson’s medical conditions as ineligible and, 21 even worse, did so using criteria not in the policy (compare, e.g., Policy 11, with, e.g., Dkt. 22 No. 46-3 Exh. 12 at -6605 (“a loss of functional capacity”)). Still, even these doctors said she 23 met qualifying conditions or said their own testing results were not “valid” (e.g., Dkt. No. 46-3 24 Exh. 13 at -1390–92; Dkt. No. 46-3 Exh. 16 at -1799). Finally, when Prudential still did not 25 have the answer it wanted as the one-year anniversary of the investigation’s start approached, 26 Prudential’s fraud team drafted a denial letter and sent it to the claims administrator, and it was 27 adopted (see Dkt. No. 52-1 Exh. 70 at -7374). The claims administrator then sent the same 1 Prudential makes three main arguments, none persuasive: 2 First, Prudential argues that its investigation was full and fair as a matter of law. No one 3 disputes the review went on for one year. The question is why, and a jury could find that the 4 fraud team kept repeating and repeating reviews until it got the one result it wanted. See 5 Tomaselli v. Transam. Ins. Co., 25 Cal. App. 4th 1269, 1281 (1994). Prudential contends there 6 is no “causal link” between Prudential’s fraud team and the claim’s denial (see Reply 5–6, 12– 7 13; Tr. 9–10). It cites a case where a court found no link: Cardiner v. Provident Life & 8 Accident Ins. Co., 158 F. Supp. 2d 1088 (C.D. Cal. 2001) (Judge Dickran M. Tevrizian, Jr.). 9 There, the insurer also had a business plan to cut payouts. But the payout in question was cut 10 without any participation from a fraud team and not until four years after the plan was 11 generally adopted. Id. at 1097, 1105–06. The district judge thus comfortably ruled as a matter 12 of law that there was no link. Id. at 1105–06. Here, this order cannot do the same because of 13 what a reasonable jury could find: The Prudential team was proximate in time and process, 14 and played a direct role. Prudential spun up its new team to find claimants receiving benefits 15 to deny now (see, e.g., Dkt. No. 46-3 ¶ 3). The team then started or intensified the 16 investigation into Mrs. Emerson by flagging her file (supra). And the team ended that 17 investigation by attaching a “[p]roposed closing letter” and asking its claims administrator to 18 “[p]lease advise if you are in agreement” (see, e.g., Dkt. No. 52-1 Exh. 70 at -7374–75). A 19 jury could thus find a causal link and conclude from these circumstances that Prudential’s 20 investigation was not “full, fair[,] and thorough.” See Bosetti v. U.S. Life Ins. Co. in N.Y.C., 21 175 Cal. App. 4th 1208, 1236–37 (2009); see also Wilson v. 21st Century Ins. Co., 42 Cal. 4th 22 713, 723, 724 n.7 (2007). Such a finding of bias in the investigation would suffice for finding 23 bad faith in the denial. See also Guebara, 237 F.3d at 996. Even if Prudential were right that 24 no reasonable jury could find its investigation unbiased (it’s not), it would not be in the clear: 25 Second, Prudential further argues that its policy interpretation was also reasonable as a 26 matter of law, namely because Prudential did not “interpret” its policy at all: Prudential says 27 that “the Policy coverage language itself[ was] the only relevant language for each expert to 1 language to the doctors (ibid.), then relied upon only the doctors’ determinations made using 2 that “definitive” language to deny Mrs. Emerson her claims (see Tr. 38; Br. 16–17; see also 3 Reply 14 n.9 (“The Policy language controls, not the claims guidelines/matrix.”)). 4 But this argument itself raises factual questions appropriate for resolution at trial. Record 5 evidence supports that Prudential paraphrased the policy, excerpted the policy, and 6 supplemented the policy with new distinguishing terms not in the policy: For example, when 7 Prudential provided instructions for medical experts, record evidence supports that Prudential 8 did not quote the policy’s two “definitive” triggering conditions in full — nor did Prudential 9 quote from its existing interpretative guidelines or forego legalese in favor of something else. 10 Rather, a reasonable jury could find, Prudential instructed doctors to assess whether “the 11 insured need[s] substantial assistance with at least two Activities of Daily Living (ADLs) due 12 to a loss of functional capacity,” using words not in the policy (Dkt. No. 46-3 Exh. 12 at -6605 13 (emphasis added)). Similarly, as to the second trigger, a jury could find Prudential did not 14 include the complete policy language in its referral letter, then editorialized what language it 15 did include: 16 [T]he insured has [been diagnosed by a doctor as having] a severe psychiatric and cognitive disorder that causes her to be 17 permanently disabled and requiring 24/7 supervision. While Ms. Emerson may have a psychiatric condition, it’s unclear if her 18 condition meets the severe cognitive impairment that is covered in the LTC policy. Other records on file . . . are not as clear 19 regarding a neurocognitive condition. 20 (see Dkt. No. 46-3 Exh. 12 at -6606 (emphases added); see also Dkt. No. 46-3 Exh. 15 (other 21 referral letter)). Again, it did so using words not in the policy. Furthermore, a reasonable jury 22 could find that these instructions resulted in conclusions that would not have been formed 23 otherwise. Record evidence supports that doctors parroted back Prudential’s non-policy 24 language in key findings, such as: “Review of records more likely than not supported a 25 psychiatrically-based inability (anxiety, psychosis, depression) to perform ADLs without 26 evidence of a neurocognitive impairment such as dementia and/or functional impairment” 27 (Dkt. No. 46-3 Exh. 16 at -1802). 1 If Prudential’s policy language was clear, why deviate from it? Or, if Prudential’s policy 2 language was unclear, why deviate also from Prudential’s own eligibility guidelines? A jury 3 could instead conclude Prudential made a bad underwriting decision in selling the policies, 4 eventually realized it, ginned up slick new interpretations, and used them to go back on its 5 word and deny benefits. 6 Finally, Prudential says “So what?”: It can prevail on a bad-faith denial claim even if it 7 intended to deny Mrs. Emerson benefits, so long as it denied her by choosing a reasonable 8 policy interpretation amidst a genuine coverage dispute (see Br. 17–18). To repeat, Prudential 9 engages in a contingency, namely, if its interpretation was wrong, it was not so wrong as to be 10 bad faith. Experience has taught this district judge that a contingent argument like this is best 11 evaluated on a full trial record and not in a vacuum, especially when its “interpretation” is such 12 a messy hodge-podge. 13 Prudential’s remaining arguments are contradicted by the insurer’s concessions in this 14 posture and can be ignored: Prudential says there is “no evidence” that Mrs. Emerson meets a 15 trigger (see, e.g., Tr. 5). But as the insurer said in court, “Prudential did not move for summary 16 judgment against Mrs. Emerson’s claim for breach of contract because we recognize that there 17 is a genuine dispute” on the medical evidence (id. at 3). 18 A reasonable jury could find Prudential denied Mrs. Emerson’s benefits in bad faith. 19 Perhaps not all juries will so find, but that is not the standard to survive. Prudential’s motion 20 for summary judgement on Mrs. Emerson’s claim of bad-faith denial of benefits is DENIED. 21 B. PUNITIVE DAMAGES. 22 Prudential also moves for summary judgment to reject the prayer for punitive damages 23 resulting from bad-faith denial (Br. 20). “[B]ad faith does not necessarily indicate the presence 24 of malice, oppression or fraud. ‘There must be substantial evidence of intent to vex, injure and 25 annoy, a conscious disregard of plaintiff’s rights, before punitive damages may be awarded.’” 26 Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375 (9th Cir. 1985) (citation omitted) (quoting 27 Betts v. Allstate Ins. Co., 154 Cal. App. 3d 688, 709 (1984)). 1 For the reasons set forth above, a reasonable jury could find not only bad faith but also 2 the requirements for punitives. This motion is DENIED. 3 C. MR. EMERSON’S CLAIM. 4 Finally, in a footnote, Prudential sought to extend its motion for summary judgment on 5 bad-faith denial of benefits to reach Mr. Emerson’s parallel claim for bad-faith denial of 6 benefits (Br. 19 n.12). Prudential’s footnote did not proffer enough respecting Mr. Emerson’s 7 variant of this claim to merit response. See Nissan Fire, 210 F.3d at 1102–03. Prudential 8 conceded as much when it filed a follow-on motion directed to the same subject (Dkt. No. 59). 9 Thus, to the extent Prudential here moved for summary judgment as to this issue, the motion is 10 DENIED AS MOOT. 11 2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 12 Prudential separately moves for summary judgment as to Mr. Emerson’s claim that 13 Prudential intentionally inflicted emotional distress upon him (Br. 19). Only Mr. Emerson 14 brought this claim (Compl. ¶¶ 40–44). At trial, Mr. Emerson will have to show that 15 (1) Prudential did outrageous acts (2) with at least reckless disregard for Mr. Emerson’s 16 emotional distress that (3) actually and proximately caused (4) Mr. Emerson to suffer severe 17 emotional distress. Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). 18 For this motion, Prudential does not challenge that its conduct caused Mr. Emerson 19 severe emotional distress (see Br. 19). Instead, Prudential argues that it acted reasonably, and 20 so could not have acted outrageously (or recklessly) (see ibid.). But a jury could find 21 Prudential acted unreasonably (supra). Still, Prudential’s larger point about what the record 22 supports is well-taken (cf. Br. 19). And, Prudential next argues that even assuming its denial 23 were unreasonable, this would be far from sufficient to establish outrageous conduct under 24 California law: Insurance denials rarely, if ever, can form the basis for emotional distress 25 claims (see ibid. (citing Coleman v. Rep. Indem. Ins. Co., 132 Cal. App. 4th 403, 417 (2005))). 26 In what is effectively a one-sentence opposition, Mr. Emerson asserts only that the law 27 says the opposite of what Prudential says, citing only the same case (Opp. 20:2–4 (citing 1 decision, but that decision addresses different issues (ibid. (citing Anderson v. State Farm Mut. 2 Auto. Ins. Co., No. 2:06-cv-2843-JAM-KJM, 2008 WL 2441086, at *1 (E.D. Cal. June 13, 3 2008) (Judge John A. Mendez))).). When asked to elaborate at oral argument, counsel for Mr. 4 Emerson responded only by referring the Court to “[t]he case law cited in our opposition” (Tr. 5 3). That case supports Prudential. See Coleman, 132 App. 4th at 417; see also Schlauch v. 6 Hartford Accident & Indem. Co., 146 Cal. App. 3d 926, 936 (1983); cf Beckham v. Safeco Ins. 7 Co. of Am., 691 F.2d 898, 904 (9th Cir. 1982). 8 As □ result, although both sides make abbreviated arguments, Prudential carries its initial 9 burden, and Mr. Emerson points to nothing in return. The motion for summary judgment as to 10 Mr. Emerson’s claim for intentional infliction of emotional distress is thus GRANTED. 1] CONCLUSION 12 Prudential’s motion for summary judgment is thus GRANTED IN PART AND DENIED IN 13 PART. As to Mrs. Emerson’s claim for bad-faith denial of benefits and prayer for punitive 14 damages, the motion is DENIED. As to Mr. Emerson’s parallel bad-faith denial claim and 3 15 punitive damages, the motion is DENIED AS MOOT, given the superseding motion. Those a 16 claims survive for now. As to Mr. Emerson’s intentional infliction of emotional distress claim, 2 17 however, the motion is GRANTED. That claim is out of the case. 18 IT IS SO ORDERED. 19 20 Dated: September 27, 2024. 21 22 Al - Pree

LLIAM ALSUP

23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28