United States District Court, S.D. Indiana, Evansville Division
ORDER DENYING DEFENDANT’S PARTIAL MOTION FOR
JUDGMENT ON THE PLEADINGS
EVANS BARKER, JUDGE.
December 20, 2018, Plaintiff Julie Greenbank sued Great
American Assurance Company (“Great American”)
[Dkt. 1-3]. That same day, Ms. Greenbank filed her first
Amended Complaint, alleging breach of contract (Count I); bad
faith (Count II); theft (Count III); statutory conversion
(Count IV); criminal mischief (Count V); statutory, common
law, and constructive fraud (Count VI); and common law
conversion (Count VII) [Dkt. 10]. Now before the Court is
Great American’s Motion for Partial Judgment on the
pleadings for Counts III through VII [Dkt. 14]. Great
American requests the opportunity to orally argue this motion
[Dkt. 21 and Dkt. 25].
reasons detailed below, we DENY Great American’s Motion
for Partial Judgment on the Pleadings. We conclude that oral
argument is not necessary in resolving the motion; therefore,
Great American’s request is DENIED.
September 2017, Ms. Greenbank purchased an American
Saddlebred gelding horse, Thomas, for $500,000 [Am. Compl.
¶ 5]. Per representations from Great American that it
was a leading provider of equine insurance and that it was
staffed with equine experts, Ms. Greenbank executed a
mortality insurance policy (the “Policy”) with
Great American for Thomas, effective September 28, 2017.
[Id. at ¶¶ 7-9, 11]. The Policy’s
mortality coverage was for Thomas’s full purchase price
of $500,000 [Id. at ¶ 17]. The initial one-year
term would have Policy expired on September 29, 2018, but Ms.
Greenbank also purchased a guaranteed renewal endorsement,
which provided that the Policy would be renewed year-to-year.
[Id. at ¶¶ 19-20].
began exhibiting signs of a medical problem in February 2018.
Chuck Herbert, Thomas’s trainer and veterinary
technologist who had over 40 years of horse-training
experience, sought an assessment from Dr. Raymond Stone, also
an experienced licensed veterinarian with an equine practice
[Id. at ¶¶ 21-34]. Within a
“reasonable period of time” and within the Policy
period and its terms, Ms. Greenbank advised Great American of
Thomas’s deteriorating health status, but as a result
of Dr. Stone’s and Mr. Herbert’s medical
treatment and care, Thomas’s condition initially showed
improvement [Id. at ¶¶ 25, 27].
health declined again in May and June 2018, including a
significant weight loss and muscle atrophy [Id. at
¶ 28]. On June 7, 2018, Mr. Herbert advised Ms.
Greenbank that he believed Thomas’s deteriorating
condition necessitated humane euthanization [Id. at
¶ 29]. The following day, Dr. Stone contacted Great
American to inform the company of Thomas’s worsening
status and his belief that Thomas should be humanely
euthanized [Id. at ¶¶ 29-31]. Great
American advised Ms. Greenbank that it would seek a second
opinion as to Thomas’s health condition and would
therefore take possession of Thomas pursuant to a Policy
provision that permitted it to assume control over
Thomas’s medical treatment at its
expense, and allowing Thomas to be immediately
removed from his barn [Id. at ¶ 32].
American contacted Mr. Herbert, informing him that it was
taking possession and control of Thomas and demanding that
Thomas be relocated to Hagyard Equine Medical Institute
(“Hagyard”) in Lexington, Kentucky [Id.
at ¶ 33]. Even though Mr. Herbert and Dr. Stone, who
were most knowledgeable of Thomas’s health, recommended
humane destruction, Great American “began a course of
radical, controversial and enduring medical treatment which
subjected Thomas to excessive suffering so as to avoid
payment of a covered loss under the Policy”
[Id. at ¶ 42]. Once transported to Hagyard,
Thomas’s health continued to decline. He contracted
Staph Aureu, which is indicative of hospital-acquired
Methicillin-Resistant Staph Aureus, and received numerous
lavages for a chest abscess [Id. at
11, 2018, Great American authorized a Hagyard veterinarian to
perform a tenectomy, a controversial and show-career ending
procedure, on Thomas’s right rear leg without Ms.
Greenbank’s consent or authorization [Id. at
¶¶ 46-47]. Dr. Stone called Dr. Nathan Slovis,
Great American’s chosen veterinarian at Hagyard, to
request alternative treatment options to the tenectomy, but
Dr. Slovis never returned Dr. Stone’s call
[Id. at ¶¶ 49-50]. Mr. Herbert voiced a
similar request, but Great American responded that it would
not consider other options and that Ms. Greenbank was
obligated to accept such treatment under the Policy
[Id. at ¶¶ 51-52]. Hagyard performed the
procedure and, consequently, ended Thomas’s career as a
show horse and reduced the value of his investment to $0
[Id. at ¶ 55]. Ms. Greenbank asserts that these
medical actions were contrary to what she had consented to
and what was required under the Policy [Id. at
September 20, 2018, Great American informed Ms. Greenbank
that it would not renew the Policy per the guaranteed renewal
endorsement, claiming that she had failed to provide
immediate notice of Thomas’s health problems
[Id. at ¶ 58]. Great American provided a
short-term renewal of sixty days, allowing Ms. Greenbank
until November 27, 2018 to secure new insurance.
[Id. at ¶ 61]. Although it terminated the
Policy, Great American continued to assert exclusive
oversight, control, possession, and decision-making related
to Thomas’ treatment at Hagyard without Ms.
Greenbank’s consent [Id. at ¶ 65].
the date of the Operative Complaint, Great American had spent
as much as $100,000 on Thomas’s medical treatment
“for the sole purpose of avoiding payment of a covered
mortality loss under the Policy” [Id. at
¶ 56]. This treatment has consistently occurred without
Ms. Greenbank’s consent [Id. at ¶ 57].
Instead, Ms. Greenbank asserts, Great American has approved a
course of inhumane and unreasonable treatment for Thomas to
continue his life, without regard for Thomas’s medical
status or Ms. Greenbank’s investment or authorization,
to avoid paying out on the Policy [Id. at ¶
68]. Ms. Greenbank further asserts that Great American took
all of these actions in bad faith and contrary to the Policy,
Ms. Greenbank’s interests, and Indiana law
[Id. at ¶¶ 79-81].
the time of the Policy’s termination date to the filing
of Ms. Greenbank’s Amended Complaint on December 20,
2018, Great American has maintained exclusive possession and
control of Thomas without Ms. Greenbank’s authorization
[Id. at ¶ 79].