Nordstrom v. USAA Garrison Propoerty and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SARAH L. NORDSTROM,
Plaintiff,
v.
USAA GARRISON PROPERTY AND
CASUALTY INSURANCE
COMPANY,
Defendant.
Case No. 3:22-cv-00016-SLG
ORDER RE MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court at Docket 19 is Plaintiff Sarah L. Nordstrom’s motion for
partial summary judgment. 	Defendant USAA Garrison Property and Casualty
Insurance Company (hereinafter “USAA”) filed a response in opposition at Docket
23, to which Ms. Nordstrom replied at Docket 27. 	Ms. Nordstrom requested oral
argument at Docket 24 and the Court denied that motion at Docket 30 because oral
argument was not necessary to the Court’s determination.
BACKGROUND
This case arises out of a collision between Ms. Nordstrom’s vehicle and a
vehicle driven by Trista Dee Anna Wilson on December 2, 2016. On the day of the
collision, Ms. Nordstrom was driving a 2012 Chevrolet Silverado and Ms. Wilson
was driving a 2012 Ford Escape.1 The collision occurred when Ms. Nordstrom was
1 Docket 23-2 at 1–2.
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stopped at an intersection and Ms. Wilson’s vehicle struck Ms. Nordstrom’s vehicle
from behind.2
At the time of the accident, Ms. Nordstrom was insured by USAA for medical
payments 	coverage 	and 	underinsured 	motorist 	coverage.3 	Pursuant 	to 	that
insurance policy, Ms. Nordstrom is entitled to medical payments coverage for
“medically necessary and appropriate medical services” that “are required to identify
or treat [bodily injury] caused by an auto accident.”4 	The policy also provides that
USAA “will pay compensatory damages which a covered person is legally entitled
to recover from the owner or operator of an uninsured motor vehicle or underinsured
motor vehicle because of [bodily injury] sustained by a covered person and caused
by an auto accident.” 5
For purposes of this motion, the key dispute between Ms. Nordstrom and
USAA is the extent to which Ms. Nordstrom was injured in the collision. According
to Ms. Nordstrom, she incurred or suffered exacerbation of the following injuries
because of the collision: (1) a “[r]ight thumb carpometacarpal degenerative arthritis
with aggravation”; (2) a “[c]ervical spine sprain”; and (3) “a lumbosacral spine
sprain.”6 	She maintains that she continues to experience ongoing symptoms from
2 Docket 23-3 at 5–7.
3 Docket 23-7 at 3–7.
4 Docket 23-7 at 1.
5 Docket 23-7 at 5.
6 Docket 19-1 at 23–24.
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her thumb injury and requires further treatment.7 	She also contends that she
needed medical care for her cervical and lumbar spine injuries for 8 to 12 weeks
after the collision.8
According to USAA, however, the “alleged injuries for which she is seeking
payment under her USAA auto policy were not proximately caused by the December
2, 2016, auto accident.”9 	Moreover, with respect to the injuries sustained in the
collision, USAA insists that Ms. Nordstrom has already been fully compensated for
those injuries by Ms. Wilson.10
On August 1, 2018, Ms. Nordstrom filed suit against Ms. Wilson in Alaska
Superior Court. 11 	The parties in that case signed a settlement agreement on June
15, 2019, whereby Ms. Wilson paid $57,105.00 and Ms. Nordstrom agreed to
discharge Ms. Wilson of any further liability arising out of the December 2, 2016,
collision.12 	At the time of the collision, Ms. Wilson was insured for bodily injury
liability to others by Progressive for up to $50,000 per person, plus add-ons, so the
settlement amount was for the limits of Ms. Wilson’s policy.13
7 Docket 19-1 at 26–27.
8 Docket 19-1 at 26.
9 Docket 23 at 2.
10 Docket 23 at 2.
11 Nordstrom v. Wilson, No. 3AN-18-08317CI (Alaska Super. Ct. filed Aug. 1, 2018).
12 Docket 23-6 at 1–3.
13 Docket 27-4 at 1.
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Ms. Nordstrom originally filed this suit against USAA in Alaska Superior Court
on October 1, 2021, alleging that USAA “has refused to pay” the “underinsured
coverage and medical bills incurred as a result of this accident” despite “hav[ing] all
of the necessary documents to pay plaintiff’s claim.”14 	USAA timely removed the
case to federal court.15 	Ms. Nordstrom subsequently filed the motion for partial
summary judgment that is now before the Court.
JURISDICITON
The Court has jurisdiction in this case pursuant to 28 U.S.C. § 1332. 	The
amount in controversy is alleged to be in excess of $75,000.16 	There is also
complete diversity between the parties because Ms. Nordstrom is a citizen of the
State of Alaska and USAA is a Texas corporation with its principal place of business
in Texas.17
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 	When considering
a motion for summary judgment, a court views the facts in the light most favorable
14 Docket 1-1 at 3, ¶ 9, 4, ¶ 13.
15 Docket 1.
16 Docket 1 at 2, ¶ 7.
17 Docket 1 at 2, ¶ 6.
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to the non-moving party and draws “all justifiable inferences” in the non-moving
party’s favor.18
“The 	party 	moving 	for 	summary 	judgment 	bears 	the 	initial 	burden 	of
demonstrating the absence of a genuine issue of fact for trial.”19 However, “[w]hen
the nonmoving party has the burden of proof at trial, the moving party need only
point out ‘that there is an absence of evidence to support the nonmoving party’s
case.’”20 If the movant meets this burden, the non-moving party must demonstrate
“specific facts showing that there is a genuine issue for trial.”21 	The non-moving
party may not rely on “mere allegations or denials”; rather, to reach the level of a
genuine dispute, the evidence must be such “that a reasonable jury could return a
verdict for the non-moving party.”22
DISCUSSION
Ms. Nordstrom moves for partial summary judgment with respect to seven
“undisputed issues.”23 The first of these issues is that “[t]he motor vehicle accident
18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)).
19 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
20 Id. at 1076 (quoting Celotex Corp., 477 U.S. at 325).
21 Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)); Anderson, 477 U.S. at 248 (quoting
Fed. R. Civ. P. 56(e)).
22 Anderson, 477 U.S. at 248–49 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253
(1968)).
23 Docket 19 at 1–3.
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on December 2, 2016, was solely caused by the negligence of the tortfeasor, Trista
Dee Anna Wilson, and plaintiff was not at fault.”24 	USAA concedes that “[Ms.]
Wilson was at fault for the car accident” and that “[Ms.] Wilson was negligent.”25
When, as here, “both parties assert[] that there are no uncontested issues of
material fact,” a court still has the independent “responsibility to determine whether
disputed issues of material fact are present.”26 Because the parties agree that Ms.
Wilson’s negligence caused the collision on December 2, 2016, and the Court has
not independently identified any evidence to the contrary, the Court will grant partial
summary judgment as to this one issue.
The remaining six issues on which Ms. Nordstrom seeks summary judgment
pertain to whether the collision caused the alleged injuries and whether the medical
care she has received in the past and may receive in the future for these injuries
was or will be reasonable and appropriate.27 	Whether Ms. Wilson’s negligence
caused the alleged injuries is a critical element to the success of Ms. Nordstrom’s
claims against USAA because her insurance policy provides that she must be
“legally entitled to recover from the owner or operator of an . . . underinsured motor
vehicle because of [bodily injuries] sustained . . . and caused by an auto accident”
24 Docket 19 at 2.
25 Docket 23 at 2, 10.
26 United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978).
27 Docket 19 at 2–3.
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to receive coverage.28
Although Ms. Wilson’s negligence is undisputed, her negligence alone is
insufficient to establish that Ms. Wilson is liable for Ms. Nordstrom’s alleged injuries.
To the contrary, it is well established that “[e]ven if an individual is negligent, that
person is not liable at common law for another’s injuries unless the negligence is a
legal (i.e. proximate) cause of those injuries.”29 To establish liability for negligence
pursuant to Alaska law, a party must show (1) a duty of care; (2) breach of the duty;
(3) causation; and (4) harm.30 	Although Ms. Wilson’s undisputed negligence is
sufficient to satisfy the first two elements, Ms. Nordstrom must also show there are
no disputed facts as to the remaining two elements in order to obtain summary
judgment.
To establish that Ms. Wilson’s negligence caused Ms. Nordstrom to incur the
alleged injuries and medical expenses, Ms. Nordstrom relies on an expert report
authored by Dr. Eric Hofmeister, who performed an independent medical evaluation
of Ms. Nordstrom’s alleged injuries.31 	As part of this evaluation, he reviewed the
photos of Ms. Nordstrom’s vehicle after the collision, Ms. Nordstrom’s medical
28 Docket 23-7 at 5.
29 State v. Will, 807 P.2d 467, 470–71 (Alaska 1991) (citing Alvey v. Pioneer Oilfield Serv., Inc., 648
P.2d 599, 600 (Alaska 1982)).
30 Dapo v. State, 454 P.3d 171, 178 (Alaska 2019) (citing Silvers v. Silvers, 999 P.2d 786, 793
(Alaska 2000)).
31 See generally Docket 19-1.
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records from as far back as May 16, 2003, and multiple radiographic images.32 He
also performed an interview and physical examination of Ms. Nordstrom.33
Dr. Hofmeister summarizes Ms. Nordstrom’s medical records following the
collision as follows: Four days after the collision, Ms. Nordstrom sought medical
care at First Care Medical Center, “complaining of neck pain and swelling in her
neck.” 	She 	was 	diagnosed 	with 	“a 	neck 	strain 	and 	recommended 	anti-
inflammatories.” On December 9, 2016, she sought chiropractic care at Gray Chiro
Health Clinic.34 She continued to receive chiropractic and massage therapy at least
four times in December 2016, nine times in January 2017, ten times in February
2017, ten times in March 2017, six times in April 2017, six times in May 2017, three
times in June 2017, and twice in July 2017. 	She received an MRI and several
radiographs of her spine from January 2017 until December 2017, as well as one
radiograph of her right wrist on September 13, 2017.35 	“There then is a large gap
in the medical records . . . [from] December 18, 2017, until November 12, 2018.”
Ms. Nordstrom sought chiropractic treatment on November 12, 2018, and again on
January 28, 2019, and July 3 and 25, 2019. 	In August 2019, she was “diagnosed
with right thumb mild to moderate carpometacarpal degenerative joint arthritis and
32 Docket 19-1 at 2–14.
33 Docket 19-1 at 24.
34 Docket 19-1 at 3.
35 Docket 19-1 at 4–5.
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possible carpal tunnel syndrome” and received a corticosteroid injection in her right
thumb.36 	She pursued ongoing chiropractic treatment once a month in December
2019, January 2020, February 2020, July 2020, September 2020, October 2020,
February 2021, August 2021, and October 2021.37 	On November 1, 2022, she
sought 	further 	treatment 	for 	her 	right 	thumb, 	and 	the 	treating 	physician
recommended another corticosteroid injection and possible surgery.38
Dr. Hofmeister ultimately concluded that as a result of the December 2, 2016,
collision, Ms. Nordstrom sustained a “mild cervical spine sprain and a lumbosacral
spine sprain.” 39 He found that “[t]he treatment to her cervical and lumbar spine that
she received for the first 8 to 12 weeks following the motor vehicle accident of
December 2, 2016, would be related to her accident, and all treatments after that
time would be related to her underlying multilevel spondylosis.” 40 	Regarding the
thumb injury, Dr. Hofmeister concluded that “she ha[d] some acceleration of her first
carpometacarpal degenerative arthrosis”; “[o]ngoing treatment related to her thumb
since 	December 	2, 	2016, 	is 	due 	to 	her 	pre-existing 	first 	carpometacarpal
degenerative arthrosis that has been exacerbated by the December 2, 2016,
accident”; and “[f]urther treatment is reasonable and necessary,” including “topical
36 Docket 19-1 at 5.
37 Docket 19-1 at 5–7.
38 Docket 19-1 at 15.
39 Docket 19-1 at 24.
40 Docket 19-1 at 26.
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or oral anti-inflammatories, repeat corticosteroid injections” and potentially surgery
“with subsequent splinting and therapy.”41
In response, USAA contends that it has “produc[ed] expert testimony that
[Ms.] Nordstrom’s alleged injuries for which she is seeking payment under her USAA
auto policy were not proximately caused by the December 2, 2016 auto accident.” 42
First, USAA filed a report from Bradley Probst, a biomechanical expert.43 Mr. Probst
reviewed, among other things, photographic reproductions of and repair estimates
for the damage to the two vehicles involved in the collision.44 Mr. Probst performed
an energy-based crush analysis and concluded that Ms. Nordstrom’s vehicle
experienced a change in velocity of “less than 6.6 miles-per-hour” as a result of the
collision, 	so 	“the 	average 	acceleration 	experienced 	by 	the 	subject 	Chevrolet
Silverado in which Ms. Nordstrom was seated was less than 2.0g.”45 	Mr. Probst
explained that “[t]he energy imparted to Ms. Nordstrom” during the collision “was
well within the limits of human tolerance and well below the acceleration levels that
she likely experienced during normal daily activities.” 46 	He concluded that the
collision did not generate enough force to cause the alleged injuries to Ms.
41 Docket 19-1 at 24, 26–27.
42 Docket 23 at 2.
43 See generally Docket 23-4.
44 Docket 23-4 at 6.
45 Docket 23-4 at 8.
46 Docket 23-4 at 11.
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Nordstrom’s cervical spine, thoracic and lumbar spine, or her upper extremities
(thumb).47
USAA also filed a report written by Dr. James R. Schwartz, an orthopedic
surgeon with Medical Evaluation of Alaska.48 	Dr. Schwartz concluded that the
collision 	was 	not 	“significant 	enough 	to 	have 	produced 	structural 	injury,”
emphasizing that “[t]he impact as noted was minimal, almost to the point of
insignificance.” 49 	According to Dr. Schwartz, the only injury that Ms. Nordstrom
sustained in the December 2, 2016, collision was a “[s]oft tissue injury about the
neck.”50 He found that “[f]our to six weeks of conservative treatment and modalities
such as chiropractic, acupuncture, and massage therapy could be considered
reasonable for this rather low impact automobile accident” but “[t]reatment beyond
six weeks would not be considered reasonable or necessary.” 51 He also observed
that when Ms. Nordstrom sought treatment at the urgent care four days after the
collision, there was “[n]o evidence of low back symptoms . . . noted at this time,”
and he concluded that “[n]o treatment to her lumbar spine would be reasonable or
necessary.”52 	Dr. Schwartz did not mention any thumb injury in response to the
47 Docket 23-4 at 19.
48 See generally Docket 23-5.
49 Docket 23-5 at 9.
50 Docket 23-5 at 8.
51 Docket 23-5 at 9.
52 Docket 23-5 at 8–9.
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question “[w]hat injuries, if any, did Ms. Nordstrom sustain in the December 2, 2016,
accident?”53 	The only mention of a potential thumb injury in Dr. Schwartz’s report
is “[p]reexisting bilateral carpal tunnel syndrome,” which “dat[ed] back to 1999.”54
In sum, the parties have submitted conflicting expert reports with respect to
whether and the extent to which the collision caused injury to Ms. Nordstrom’s
cervical spine, lumbar spine, and thumb. 	Ms. Nordstrom nonetheless urges the
Court to follow Ligus v. United States55 and grant her motion for partial summary
judgment.56 	In that case, the plaintiff alleged that “she suffered bodily injury as a
result of the United States’ negligence” and requested “partial summary judgment
as to certain facts that she argue[d were] undisputed.”57
In Ligus, unlike in this case, the defendant “concede[d] that certain facts listed
in [the m]otion [we]re undisputed, [but] nevertheless oppose[d] the [m]otion.”58 	In
this case, by contrast, USAA filed two expert reports disputing the facts that Ms.
Nordstrom contends are “undisputed.” 59 	Based on the record before the Court, a
reasonable jury could return a verdict for USAA, the non-moving party, after
53 Docket 23-5 at 8.
54 Docket 23-5 at 6, 8.
55 Case No. 3:18-cv-00187-TMB, 2020 WL 736243 (D. Alaska Feb. 13, 2020).
56 Docket 19 at 7–8.
57 Ligus, 2020 WL 736243, at *1.
58 Id.
59 See generally Docket 23-4, Docket 23-5.
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concluding that even though Ms. Wilson was negligent in causing the collision, the
collision did not cause Ms. Nordstrom’s alleged injuries to her spine or thumb and
medical treatment for her cervical spine exceeding six weeks was not reasonable
or necessary.60 	The Court accordingly denies summary judgment with respect to
all remaining issues identified in Plaintiff’s motion.
CONCLUSION
In light of the foregoing, Plaintiff’s Motion for Partial Summary Judgment at
Docket 19 is GRANTED IN PART and DENIED IN PART. Summary judgment is
GRANTED with respect to the following undisputed issue:
 	The motor vehicle accident on December 2, 2016, was solely caused by
the negligence of Trista Dee Anna Wilson, and Sarah L. Nordstrom was
not at fault.
Summary judgment is DENIED with respect to all remaining issues.
DATED this 8th day of May 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
60 See Anderson, 477 U.S. at 248–49.
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