The opinion of the court was delivered by: LEE
WILLIAM C. LEE, UNITED STATES DISTRICT JUDGE
This matter is before the court on defendants' motion for summary judgment and motion to strike portions of plaintiffs' submitted affidavits. Oral arguments were heard on September 11, 1989. For the following reasons, defendants' motion for summary judgment will be denied and defendants' motion to strike will be denied in part and deemed to be moot in part.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; Valentine v. Joliet Tp. High School Dist. No. 204, 802 F.2d 981, 986 (7th Cir. 1986).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact," Celotex, 106 S. Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392, (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S. Ct. at 2511.
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed. R. Civ. P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S. Ct. at 2512.
The facts, construed in the light most favorable to plaintiffs, are as follows. The plaintiff, Leland Stump (Lee) is a resident of the state of Indiana and was an employee of Hitzfield Excavating Company (Hitzfield). The plaintiff, Sue Carol Stump (Sue), Lee's wife, is also a resident of the state of Indiana and was an employee of Target Stores. Sue is legally blind and cannot drive. The defendant, Commercial Union (Commercial) is a corporation incorporated under the laws of the state of Delaware with its principal place of business in Delaware. Defendant, Crawford & Company (Crawford), is a corporation organized under the laws of the state of Georgia with its principal place of business in Georgia.
On August 13, 1986, Lee was injured in an industrial accident which resulted in the amputation of both of his legs. At the time of Lee's accident, Hitzfield was insured under a policy of workmen's compensation insurance issued by Commercial. After Lee filed a workmen's compensation claim, Commercial hired Crawford to coordinate any medical services and benefits due and owing Lee under Hitzfield's policy. Crawford's employees made monthly status reports to Commercial regarding Lee's progress. Lee's amputation and subsequent treatment were primarily conducted by Dr. Ronald G. Caldwell.
Lee was released from the hospital on August 27, 1986, after being assured by one of Crawford's representatives, Peggy Hippenhammer, that he would receive medical care, out-patient therapy and occupational therapy, medical supplies, transportation, ramps, grab bars, and home health care provided by Sue. Russell Miller, a representative of Commercial, also had made arrangements for a hospital bed, a hoyer lift, and other necessary equipment to be in Lee's home upon his release from the hospital. Lee was also told before he left the hospital that he needed special care, exercise and therapy to avoid a condition called "flexion constricture." Stump shrinkers were supposed to be kept on his legs to aid in avoiding this condition.
Upon Lee's release from the hospital, he and Sue accepted payment for domestic nursing care for eight hours a day of services at a rate of $ 6.00 per hour. Sue quit her job at Target to provide the full-time home health care that Lee needed. However, due to Sue's blindness and the fact that she is not a nurse, she could not perform all of the medically necessary procedures. She could not keep the stump shrinkers on Lee as required and she had to be with him 24 hours a day for his protection because Lee had not been taught how to balance or move prior to his hospital release. Lee requested additional nursing services and special Jobst shrinkers which were ordered by Dr. Caldwell. Hippenhammer told Lee that no additional nursing services would be provided and refused to approve purchase of the Jobst stump shrinkers.
Despite the promise of continued therapy on an out-patient basis, and the medical necessity of such therapy, Lee's therapy was stopped for two months after his release from the hospital. The therapy was stopped due to the fact that Lee had no means of transportation from his home to the hospital. Lee contends that before he left the hospital, he was promised a van for transportation purposes. After he went home, Hippenhammer and Russell Miller told him that he misunderstood and would be furnished transportation by "taxi van" to and from medical appointments only. Lee explained the need for accessible transportation to conduct everyday affairs, including going to therapy, since Sue could not drive. Lee was told that he would be provided once a week grocery shopping but he was on his own to resolve any other transportation problems he had. Only after Lee's repeated efforts and complaints did Crawford consent to transport him to the therapeutic appointments which were ordered by Dr. Caldwell and required by the prosthetist.
Lee stated in his affidavit
that he was also told that wheelchair ramps would be provided and that his bathroom would be altered to accommodate his daily needs, including installation of grab bars for ease of transfer. Defendants moved to strike these statements on the basis that they would be inadmissible hearsay evidence. Defendants apparently misconceive the purpose for which these statements were made. Lee's affidavit was submitted in opposition to the summary judgment motion which claimed that Lee could not prove fraud because no false representations were made to him upon which he could justifiably rely. The statements in the affidavit were not made for the purpose of proving the matters asserted therein. They were made to show the reliance element which defendants contend is missing. Therefore, defendants' motion to strike these statements is denied.
Defendants had not made any provisions for ramps of the steps which lead into Lee's home by the time of his release from the hospital. Every entrance to Lee's house involved at least one step which he had not been trained to maneuver by wheelchair before he came home. Since Lee weighed approximately 280 pounds, Sue could not lift him and the wheelchair up and over these steps. Lee called a company on his own initiative to have ramps installed. He was chastised by Hippenhammer for ordering the installation without prior approval. By November or early December 1986, Lee's bathroom still had not been altered to accommodate his wheelchair. During this three month period, Lee relied on "butt-walking" to get in and out of his bathroom to maintain his personal hygiene. He again contracted to finally have the promised work done on his own initiative. Despite defendants' promises, Hippenhammer stated in a report issued to Commercial an entire month after Lee's release from the hospital and after problems associated with being at home became obvious, that it was "too early" to make the promised modifications.
In June 1987, defendants received a letter they solicited from Dr. Caldwell in which he answered the question, "what is the permanent partial impairment sustained by Mr. Stump?", as follows:
Question #8: Permanent Partial Impairment: As defined in the "Evaluation of Permanent Impairment" by the AMA, amputation above the knee joint with functional stump gives the percentage impairment of the lower extremity of 90% or 36% of the whole person. Below knee amputation with functional stump has a 70% impairment of the lower extremity with a 28% of the whole person. Using the Combined Values chart, this would work out to be 54% permanent partial impairment of the entire person.
Although Dr. Caldwell's answer concerning Lee's permanent partial impairment clearly refers only to an AMA definition for the type of injuries suffered by Lee, Commercial construed Dr. Caldwell's response as his professional evaluation that Lee had reached a "permanent and quiescent" state. To be "permanent and quiescent" means that a permanent impairment has been medically determined and that the person is not going to get any worse or any better.
At the time that defendants received Dr. Caldwell's letter, they were aware that Lee was suffering from a rash and ulcers on his stumps caused by an allergic reaction to his temporary prostheses. Defendants also knew that Lee had only recently begun fittings for his permanent prostheses and that he was having difficulty with that process due to the condition of his stumps. Furthermore, Theodore Nonte, claims manager for Commercial, changed the rating in Dr. Caldwell's letter to 100% for purposes of computing a settlement offer to Lee, stating that the AMA guidelines were an insufficient basis for Dr. Caldwell's rating. Nonetheless, based solely on Dr. Caldwell's June 15, 1987 letter, Commercial terminated Lee's temporary total disability benefits in June 1987. Commercial also terminated Lee's physical therapy and home health care benefits despite the response in Dr. Caldwell's June 15, 1987 letter, which stated: