Friday, March 04, 2011

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

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