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Michael Patrick Doyle (# 029400)
Patrick M. Dennis (# 029533) Kevin Wein (#022752)
DOYLE RAIZNER LLP 2929 East Camelback Rd., Suite 126 Phoenix, Arizona 85016 Phone: (480) 447-2494 Fax: (480) 685-5005 [email protected] [email protected] [email protected] Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF ARIZONA
DAVID CLARK,
Plaintiff, v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; GALLAGHER BASSETT CLAIMS, INC.; MICHELLE TRESSLER;
Defendants.
Case No. ___________ COMPLAINT
The Plaintiff, DAVID CLARK, by and through his attorney undersigned, and for his
complaint against the Defendants, does hereby state, aver, and allege as follows:
1. All acts out of which this complaint arises occurred or were committed in
the State of Arizona.
I. PARTIES
2. Plaintiff DAVID CLARK (“Mr. Clark”) is a resident and citizen of the State
of Arizona.
3. Defendant INDEMNITY INSURANCE COMPANY OF NORTH
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AMERICA (“INDEMNITY INSURANCE”) upon information and belief, is a corporation
insuring Arizona employees for coverage under the Arizona Workers’ Compensation Act,
A.R.S. § 23-901, et seq. INDEMNITY INSURANCE conducts business in the District of
Arizona.
a. Service of process may be effected on INDEMNITY INSURANCE by
certified mail, return receipt requested, through the Arizona Department of Insurance,
its statutory agent, Director of Insurance, 2910 North 44th St., Second Floor,
Phoenix, Arizona 85018.
b. All acts complained of INDEMNITY INSURANCE herein were committed
by INDEMNITY INSURANCE directly, or under its supervision and direction.
c. All acts complained of INDEMNITY INSURANCE herein that were
committed by and through its authorized servants, employees, and agents, were
committed while acting within the scope of their employment, service agreement, and
agency, in concert with Defendant INDEMNITY INSURANCE.
d. All acts complained of INDEMNITY INSURANCE herein that were
committed through any of its servants, employees, or agents, were also ratified by
INDEMNITY INSURANCE.
e. INDEMNITY INSURANCE is vicariously liable for all acts complained of
herein that were committed by or through any authorized servants, employees, or
agents of INDEMNITY INSURANCE.
f. INDEMNITY INSURANCE is directly liable for breaches of its non-
delegable duty of good faith and fair dealing committed by any its servants,
employees, or agents.
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4. Defendant GALLAGHER BASSETT CLAIMS INC., upon information and belief, is
a corporation adjusting insurance claims made by Arizona employees on behalf of Indemnity
Insurance for coverage under the Arizona Workers’ Compensation Act, A.R.S. § 23-901, et
seq. GALLAGHER BASSETT conducts business in the district of Arizona.
Service of process may be effected on GALLAGHER BASSETT by certified mail,
return receipt requested, to its registered agent THE PRENTICE-HALL
CORPORATION, 2338 W ROYAL PALM RD STE J PHOENIX, AZ 85021.
b. GALLAGHER BASSETT is directly liable for its own acts and omissions and
because GALLAGHER BASSETT aided and abetted Defendant INDEMNITY
INSURANCE in its violations of the Arizona Worker’ Compensation Act and the
duties of good faith and fair dealing owed to Mr. Clark. Wells Fargo Bank v. Arizona
Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust, 38 P.3d, 12
(Ariz. 2002).
c. All acts complained of GALLAGHER BASSETT herein were committed by
GALLAGHER BASSETT directly, or under its supervision and direction.
d. All acts complained of GALLAGHER BASSETT herein that were committed
by and through its authorized servants, employees, and agents, were committed while
acting within the scope of their employment, service agreement, and agency, in
concert with Defendant GALLAGHER BASSETT.
e. All acts complained of GALLAGHER BASSETT herein that were committed
through any of its servants, employees, or agents, were also ratified by
GALLAGHER BASSETT.
f. GALLAGHER BASSETT is vicariously liable for all acts complained of
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herein that were committed by or through any authorized servants, employees, or
agents of GALLAGHER BASSETT.
5. Defendant Michelle Tressler (“Ms. Tressler”), upon information and belief, is
a natural person, working and residing in Idaho. Ms. Tressler may be served by service upon
her to Michelle Tressler, 4400 S Quebec St Apt F206 Denver, CO 80237-2668.
a. Ms. Tressler is personally liable for her own acts and omissions insofar as she
aided and abetted Defendants Indemnity Insurance in its violations of the Arizona
Worker’ Compensation Act and the duties of good faith and fair dealing owed to Mr.
Clark. Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local
No. 395 Pension Trust, 38 P.3d, 12 (Ariz. 2002).
II. VENUE & JURISDICTION
6. Diversity jurisdiction herein is conferred by 28 USC §1332 (plaintiff is a
citizen of Arizona, Indemnity Insurance is a citizen of Pennsylvania (Incorporation and
Principal Place of Business), GALLAGHER BASSETT is a citizen of Delaware
(Incorporation) and Illinois (Principal Place of Business) and Michelle Tressler is a citizen
of Colorado. In addition, the amount in controversy exceed $75,000).
7. Venue is properly laid in the Federal District Court for the District of
Arizona, as a substantial part of the events or omissions giving rise to the cause of action
herein occurred in Maricopa County. Defendants Indemnity Insurance and GALLAGHER
BASSETT also maintain representatives and conduct business in Maricopa County,
Arizona.
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III. FACTUAL BACKGROUND
8. This suit is necessary to collect a legal debt and damages due and owing Mr.
Clark because of Defendants’ wrongful acts in handling of his claim for an on-the-job
injury. The Defendants, individually and/or collectively, have engaged in conduct that
wrongfully denied and/or unreasonably delayed payment of workers’ compensation
benefits for workplace injuries sustained by Mr. Clark.
9. Mr. Clark, a loyal and hard-working employee of Waste Management Inc.,
was injured in the course and scope of his employment on or about November 21, 2012
and January 26, 2013.
10. Upon receiving Mr. Clark’s workers’ compensation claim, INDEMNITY
INSURANCE and GALLAGHER BASSETT placed Ms. Tressler as the adjuster in
charge of processing Mr. Clark’s workers’ compensation claim. In processing Mr.
Clark’s claim, Ms. Tressler caused to be filed a Notice of Claim Status form with the
Industrial Commission of Arizona, Claims Division, which created the direct result of
ceasing and denying medical and income benefits to Mr. Clark. See Exhibit “A,” Notice of
Claim Status, dated February 25, 2013. In all, GALLAGHER BASSETT and Ms. Tressler
failed to conduct a reasonable investigation and adjust Mr. Clark’s workers’ compensation
claim to ensure Mr. Clark would receive the medical, financial, and other benefits to
which he was entitled as a beneficiary of the workers’ compensation promised to the
employees of Waste Management, and without a reasonable basis or adequate investigation,
INDEMNITY INSURANCE chose to continue to deny timely payment of the insurance
benefits to which Mr. Clark was entitled.
11. Because of the unreasonable and inadequate investigation, INDEMNITY
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INSURANCE, instead refused to issue payments and benefits owed to Mr. Clark. See
Exhibit “A,” Notice of Claim Status Denying Benefits dated February 25, 2013 see also
A.R.S. § 23-963.01 (B) (“Any compensable claim for benefits shall be paid by the
carrier.”). As a direct result, Mr. Clark was forced to hire and pay a lawyer to help him
secure the workers’ compensation benefits to which he was entitled. After proceeding
through all preliminary proceedings before the Industrial Commission of Arizona, Mr. Clark
was able to secure the long overdue benefits by Indemnity Insurance. See Exhibit “B,”
Notice of Claim Status dated April 2, 2014. This Award exhausted all available
administrative remedies for Mr. Clark. Yet, even after the ICA found the injury
compensable, Defendants have continued to fail to pay for Clark’s medical bills.
12. The Defendants’ wrongful conduct includes the following acts or omissions:
a. Failure to conduct a reasonable investigation of the events and facts
relating to Mr. Clark’s claim;
b. Failure to timely recognize and acknowledge the nature and extent of
Mr. Clark’s compensable injury;
c. Failure to accept the undisputed evidence regarding Mr. Clark’s claim;
d. Denial of the existence and/or extent of injury without the input of
competent individuals with appropriate medical training;
e. Creation of pretextual reasons to deny and/or delay payment of Mr.
Clark’s claim and engagement in an “outcome-driven” approach to his claim;
f. Ignoring and refusing to consider information favorable to Mr. Clark’s
claim for workers’ compensation benefits; and
g. Failure to ensure that the industry’s best practices were applied
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consistently with regard to Mr. Clark’s claim.
13. Unfortunately, INDEMNITY INSURANCE, GALLAGHER BASSETT, and
Ms. Tressler’s delay and imposition of severe economic distress and delayed payment of
benefits and medical treatment had reasonably anticipated consequences on Mr. Clark from
which he is still fighting to recover. Given the repeated delays of payment for his necessary
medical care and other benefits, Mr. Clark has been subjected to significant economic
impact, humiliation, worry, distress, and continuing economic and physical damage.
14. The Industrial Commission of Arizona retains jurisdiction to determine
medical and disability benefits payable under the Arizona Workers’ Compensation Act. But
jurisdiction for Mr. Clark’s general damages arising from the wrongful conduct of
Defendants is wholly separate from the relief accorded under the Arizona Workers’
Compensation Act and is vested in this Court. Consequently, the significant effect of
Defendants’ wrongful and unjustified delay is still uncompensated.
IV. FIRST CLAIM FOR RELIEF---
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
AS TO DEFENDANTS INDEMNITY INSURANCE AND GALLAGHER
BASSETT
15. Plaintiff re-alleges and incorporates by reference the allegations of ¶¶ 1-14, of
this Petition as if fully set forth herein.
16. Defendants have committed violations of the Arizona Workers’
Compensation Act and their other duties under the laws of the State of Arizona arising
from their obligations under the Arizona Workers’ Compensation Act and the contract of
insurance for which Defendants provided workers’ compensation insurance coverage to
Mr. Clark.
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17. INDEMNITY INSURANCE, as Mr. Clark’s workers' compensation insurer,
had a non-delegable duty to deal fairly and in good faith with Mr. Clark in the processing of
his workers’ compensation claim. INDEMNITY INSURANCE owed a duty to deal fairly
and in good faith with Mr. Clark in the processing of his workers’ compensation claim.
18. GALLAGHER BASSETT as the third party administrator for Mr. Clark’s
claim for workers’ compensation benefits owed a duty to deal fairly and in good faith with
Mr. Clark in the processing of his workers’ compensation claim because it controlled Mr.
Clark’s medical care and financial payments. In addition, Gallagher Bassett and Indemnity
Insurance are jointly liable because Gallagher and Indemnity formed a joint venture in the
handling of Mr. Clark’s claims and acted together in bad faith.
19. INDEMNITY INSURANCE and GALLAGHER BASSETT breached this
duty by refusing to properly investigate and effectively denying necessary medical care and
other benefits, without any reasonable basis to do so.
20. INDEMNITY INSURANCE and GALLAGHER BASSETT knew or should
have known that there was no reasonable basis for denying or delaying the required benefits.
Indemnity Insurance and Gallagher Bassett’s liability is based on the actions of its agents,
and also on its own actions, including the refusal to pay a legitimate claim, relying on an
unreasonable evaluation and investigation, and delegating claims handling authority despite
knowing the claim was denied with no reasonable basis. See e.g. A.R.S. § 23-963.01 (B)
(“Any compensable claim for benefits shall be paid by the carrier.”) (emphasis added).
21. Defendants’ acts and omissions include, but are not limited to, the
following:
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a. Intentionally denying workers’ compensation benefits without a reasonable
basis for such denial;
b. Knowingly terminating workers’ compensation benefits without a
reasonable basis for such action;
c. Failing to perform an adequate and reasonable investigation or evaluation to
determine whether any termination of benefits was supported by a reasonable
basis;
d. Unreasonably interpreting Defendants’ obligations under the Arizona
Workers’ Compensation Act to arbitrarily and capriciously delay, decrease, and
deny benefits owed to Mr. Clark;
e. Abusing the litigation process and procedures of the Industrial Commission
of Arizona as a tool to delay, decrease, and deny benefits owed to Mr. Clark;
f. Needlessly compelling Mr. Clark through administrative litigation to receive
benefits under his workers’ compensation insurance policy;
g. Delaying, decreasing, and denying benefits to Mr. Clark with the intent to
cause him to accept a compromised amount of the benefits that should have been
due and owing under his workers’ compensation insurance policy;
h. Failing to adopt and implement reasonable standards for investigating and
evaluating benefits due to Mr. Clark under his workers’ compensation insurance
policy;
i. Placing the financial interests of Defendants above the interests Mr. Clark,
INDEMNITY INSURANCE and Gallagher Bassett’s insured.
22. GALLAGHER BASSETT and INDEMNITY INSURANCE’s acts and
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omissions, including those described in paragraphs 9-21, supra, violate the common law
duties of good faith and fair dealing owed to Mr. Clark, its insured.
23. As a direct and proximate result of the conduct of Defendants described
herein, Plaintiff was caused to suffer the injuries and damages aforementioned.
V. SECOND CLAIM FOR RELIEF—AIDING AND ABETTING
INDEMNITY INSURANCE’S BREACH OF DUTY OF GOOD FAITH &
FAIR DEALING
AS TO DEFENDANT GALLAGHER BASSETT CLAIMS INC.
24. Plaintiff re-alleges and incorporates by reference the allegations of ¶¶ 1-23,
of this Petition as if fully set forth herein.
25. The acts and omissions of GALLAGHER BASSETT were performed by it
in its individual capacity and as an agent for INDEMNITY INSURANCE. Such acts and
omissions were within the scope of its actual authority, express authority, implied
authority, or apparent authority.
26. GALLAGHER BASSETT knew that, after an adequate investigation,
Plaintiff’s claim was not fairly debatable, that INDEMNITY INSURANCE denied or
delayed Plaintiff’s claim without a reasonable basis, and that INDEMNITY INSURANCE
knew or recklessly disregarded the lack of a reasonable basis for denying Plaintiff’s claim.
27. GALLAGHER BASSETT substantially assisted or encouraged
INDEMNITY INSURANCE in delaying or denying the claim without a reasonable basis.
VI. THIRD CLAIM FOR RELIEF—AIDING AND ABETTING
INDEMNITY INSURANCE’S BREACH OF DUTY OF GOOD FAITH &
FAIR DEALING
AS TO DEFENDANT MICHELLE TRESSLER
28. Plaintiff re-alleges and incorporates by reference the allegations of ¶¶ 1-27, of
this Petition as if fully set forth herein.
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29. The acts and omissions of Ms. Tressler were performed by her in her
individual capacity and as an agent for INDEMNITY INSURANCE and GALLAGHER
BASSETT. Such acts and omissions were within the scope of her actual authority, express
authority, implied authority, or apparent authority.
30. As an adjuster for workers’ compensation claims in the State of Arizona, Ms.
Tressler is subject to individual liability for her actions, independent of employment with
INDEMNITY INSURANCE or GALLAGHER BASSETT. Ms. Tressler’s licensure as an
adjuster imputes upon her personal responsibilities and obligations, both independent of and
in conjunction with her employment with INDEMNITY INSURANCE or GALLAGHER
BASSETT.
31. Ms. Tressler knew that, after an adequate investigation, Mr. Clark’s claim
was not fairly debatable, that INDEMNITY INSURANCE delayed and denied Mr.
Clark’s claim without any reasonable basis, and that INDEMNITY INSURANCE knew
or recklessly disregarded this lack of a reasonable basis to delay and deny Plaintiff’s
claim.
32. Ms. Tressler thus substantially assisted or encouraged INDEMNITY
INSURANCE in delaying or denying Mr. Clark’s on-the-job injury claim, without any
reasonable basis.
33. Ms. Tressler’s conduct to aid and abet INDEMNITY INSURANCE resulted
in the delay and denial of insurance benefits to Mr. Clark and, ultimately, in the damages
sustained by Mr. Clark.
34. Because of Ms. Tressler’s acts and omissions to aid and abet INDEMNITY
INSURANCE, she is individually, as well as jointly and severally, liable for Plaintiff’s
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damages. Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local No.
395 Pension Trust Fund, 38 P.3d 12 (Ariz. 2002).
35. As a direct and proximate result of the conduct of Ms. Tressler described
herein, Plaintiff was caused to suffer the injuries and damages aforementioned.
VII. FOURTH CLAIM FOR RELIEF---PUNITIVE DAMAGES
36. Plaintiff re-alleges and incorporates by reference the allegations of ¶¶ 1-35, of
this Petition as if fully set forth herein.
37. Defendants acted intentionally, fraudulently, and with malice (as that term is
legally defined) in denying Mr. Clark’s claim for workers’ compensation benefits.
38. Defendants’ conduct constituted aggravated, malicious, and outrageous
conduct in conscious disregard to Mr. Clark’s rights, physical health, and financial condition.
39. Defendants’ conduct when viewed objectively from its standpoint at the time
of its occurrence involved an extreme degree of risk to Mr. Clark, considering the probability
and magnitude of the potential harm to Mr. Clark. Further, Defendants had actual,
subjective awareness of the risk involved, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of Mr. Clark.
VIII. PRAYER FOR RELIEF
Plaintiff respectfully prays that he have judgment entered against Defendants and
for an award of damages as follows:
a. For compensatory damages for physical pain and suffering, mental and
emotional distress, anxiety, and all other general damages alleged and proved at the time
of trial;
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b. Punitive and exemplary damages in an amount appropriate to punish and set
an example of the Defendants, and in such an amount that will discourage Defendants and
others from such conduct against other insureds in the future;
c. Recovery of expert witness fees;
d. Recovery of attorney fees;
e. Taxable costs incurred herein;
f. Pre- and post-judgment interest; and
g. For all such other and further relief, at law or in equity, to which DAVID
CLARK may be entitled.
Dated this 6th day of October, 2014.
Respectfully submitted, DOYLE RAIZNER LLP
___________________________
MICHAEL PATRICK DOYLE State Bar No. 029400 PATRICK M. DENNIS State Bar No. 029533 KEVIN WEIN State Bar No. 022752 Phone: (480) 447-2494 Fax: (480) 685-5005 [email protected] [email protected] [email protected]
ATTORNEYS FOR PLAINTIFF
DAVID CLARK
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