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Radmer v. Royal Neighbors of America

United States District Court, E.D. Wisconsin

August 12, 2016

BRIDGET RADMER and KIMBERLY RADMER, Plaintiffs,
v.
ROYAL NEIGHBORS OF AMERICA, Defendant.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         In this civil suit, Plaintiffs Bridget Radmer and Kimberly Radmer (“the Radmers”), allege breach of contract and bad faith insurance claims against Defendant Royal Neighbors of America (“Royal Neighbors”) for denying them benefits under a life insurance policy issued to their mother, Irene Bramm. (Docket #1-2). This matter comes before the Count on Royal Neighbors’ motion for summary judgment filed on May 31, 2016. (Docket #17). On June 24, 2016, the Radmers filed their opposition (Docket #24) and, on July 2, 2016, Royal Neighbors filed its reply (Docket #27). On July 9, 2016, the Radmers filed a motion to file a surreply. (Docket #30). This matter was recently reassigned to this branch of the Court on July 20, 2016, due to the unavailability of Judge Rudolph T. Randa.

         To begin, the Court will deny the Radmers’ motion to file a surreply. The Local Rules do not allow for a surreply without leave of the Court, and, upon reviewing the parties’ supporting materials, the Court has determined a surreply is unnecessary in this instance. As such, the motion for summary judgment is fully briefed and ready for disposition. As discussed in detail below, the Court will grant the motion as to the bad faith claim and deny the motion on the breach of contract claim. Material issues of fact exist as to the breach of contract claim, and this matter will, therefore, proceed to trial.

         1. FACTUAL BACKGROUND

         This case involves a dispute surrounding a life insurance policy Royal Neighbors issued to Irene Bramm in 2013. Ms. Bramm is now deceased, and the Radmers, Ms. Bramm’s daughters, bring this action as beneficiaries of the policy. (DPFF ¶¶ 21-22).[1] The parties agree on the majority of the background facts and the Court will note any discrepancies when necessary.

         1. 1Relevant Medical History

         Ms. Bramm consulted Dr. Jeanne Palmer, an oncologist, on August 11, 2010, upon the advice of her primary doctor because of elevated protein levels in her body. (DPPF ¶ 1). Dr. Palmer is a physician at Froedtert and the Medical College of Wisconsin Cancer Center. (PPFF ¶ 44). On September 15, 2010, Dr. Palmer noted that a bone marrow biopsy on Ms. Bramm contained “evidence of lymphoplasmacytic lymphoma” within the bone marrow. (DPPF ¶ 2).[2] Lymphoma is a form of cancer. (DPFF ¶ 3). Dr. Palmer noted that Bramm’s elevated levels did “not appear to be resulting in symptoms” but they would need to do “watchful waiting” and “follow up with repeat labs in 3 months.” (DPFF ¶ 4).

         On March 2, 2011, Dr. Palmer noted that Ms. Bramm “is a 55 year old female with Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobu-linemia who comes in for follow up.” The doctor recommended a follow-up visit in three months and lab work one week prior to the visit. (DPFF ¶ 5).

         On either June 1, 2011, or June 3, 2011, Dr. Palmer reviewed Ms. Bramm’s lab results and noted that Ms. Bramm “is a 55 year old female seen in follow up for Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia.” The doctor again recommended a follow-up visit in three months and lab work one week prior to the visit. (DPFF ¶ 6).[3]

         On September 7, 2011, Dr. Palmer reviewed Ms. Bramm’s lab work during an office visit. Dr. Palmer created a progress note which stated “Date of service: 9/7/2011 Diagnosis: Lymphoplasmacytic lymphoma/ Waldenstrom’s macroglobulinemia.” (DPFF ¶ 7). The parties dispute whether the term “diagnosis” here refers to the September 2010 diagnosis or whether the diagnosis occurred that day. (Pls’ Response to DPFF ¶ 7). On December 14, 2011, Dr. Palmer again saw Ms. Bramm and reviewed her lab results. During the visit, Dr. Palmer created a note which stated “Date of service: 12/14/2011 Diagnosis: Lymphoplasmacytic lymphoma/ Waldenstrom’s macroglobulinemia.” The medical record further noted “Assessment and Plan: 1. Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia… 6. She will follow up with a clinic visit in 6 mo, and labs one week prior.” (DPFF ¶ 8).

         On June 29, 2012, Dr. Palmer reviewed Ms. Bramm’s lab test results. Her medical record stated “Date of service: 6/29/2012 Diagnosis: Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia.” The medical record further noted “Assessment and Plan: 1. Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia… 4. She will follow up with a clinic visit in 6 mo, and labs one week prior.” (DPFF ¶ 9).On December 12, 2012, Dr. Palmer reviewed Ms. Bramm’s lab work. The medical record stated “Date of service: 12/12/2012 Diagnosis: Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia.” The medical record further noted “Assessment and Plan: 1. Lymphoplasmacytic lymphoma/ Waldenstrom’s macroglobulinemia … 4. She will follow up with a clinic visit in 6 mo, and labs one week prior. She is to contact the BMT team with any change in clinical status or concerns.” (DPFF ¶ 10).

         On July 5, 2013, Dr. Palmer’s notes state that Ms. Bramm was seen by Dr. Carlos Arce-Lara, who reviewed Ms. Bramm’s lab test results. The “Hematology and Oncology Follow up note” stated “Date of service: 7/5/2013 Diagnosis: Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia.” The medical record further noted “Ms. Bramm is a 55 year old female with “Lymphoplasmacytic lymphoma/Waldenstrom’s macroglobulinemia who comes in for follow up.” Dr. Arce-Lara recommended that she “follow up with a clinic visit in 6 mo, and labs one week prior.” (DPFF ¶ 11). The parties agree that Ms. Bramm was never treated for internal cancer. (PPFF ¶ 16).

         1.2 The Insurance Policy

         On August 6, 2013, Ms. Bramm applied for a life insurance policy with Royal Neighbors through an agent named Ryan Reilly (“Reilly”). (DPFF ¶ 12). The parties dispute whether Reilly was an independent agent or an agent of Royal Neighbors. (Pls’ Response to DPFF ¶ 12). Ms. Bramm applied for what is called a “simplified issue life insurance policy” in the sum of $25, 000.00. (PPFF ¶ 4). At the time Ms. Bramm signed this application, she replaced a $10, 000.00 policy in effect that Reilly had processed for her about a month before. (PPFF ¶ 8).

         During their meeting, Reilly read a series of application questions to Ms. Bramm and he filled out the answers. (PPFF ¶ 6). The parties dispute whether Ms. Bramm’s daughter, Bridget Radmer, was present during the meeting; Reilly asserts he has no recollection of her in the room whereas Bridget Radmer testified she was present. (PPFF ¶ 9 and Def’s Response).

         Immediately above question 2 in Part 2, Section 2, entitled “Medical Questions” the following statement appears in bold and italic type set: “If any answer to questions 2 through 7 is Yes, the Proposed Insured is not eligible for ANY coverage.” (DPFF ¶ 13). Among other questions, the Application asked Ms. Bramm:

6. During the past 24 months, has the Proposed Insured been diagnosed as having, or been treated for:
a. Internal Cancer, Melanoma, or Leukemia?

(DPFF ¶ 14). In response to Question 6.a on the application, the box was checked “no.” The parties dispute whether it was Reilly or Ms. Bramm who checked the box. (DPFF ¶ 15 and Pls’ Response). Additionally, the application contained a statement above Ms. Bramm’s signature that stated “Agreement/Disclosure: I have read this application for life insurance including any amendments and supplements and, to the best of ...


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