Colin BANCROFT, Plaintiff, v. MINNESOTA LIFE INSURANCE COMPANY, Defendant.

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court are (1) Plaintiff Colin Bancrofts motion for summary judgment of liability on all claims against Defendant Minnesota Life Insurance Company (Minnesota Life) (Plf. 2d MSJ (Dkt. # 29) at 2) (The undisputed facts in this matter lead to the conclusion that Minnesota Life is liable on all claims made by [Mr.] Bancroft.); and (2) Minnesota Lifes cross motion for summary judgment of no liability on all of Mr. Bancrofts claims (Def. MSJ (Dkt. # 35) ). The court has considered the motions, the submissions filed in support of and in opposition to both motions, the relevant portions of the record, and the applicable law. In addition, on June 12, 2018, the court heard counsels oral argument. Being fully advised, the court DENEIS Mr. Bancrofts motion for summary judgment and GRANTS Minnesota Lifes cross motion as more fully described herein.

II. BACKGROUND

A. The Accelerated Benefits Policy Rider

Mr. Bancroft is an employee of King County. (10/25/17 Bancroft Decl. (Dkt. # 8) ¶ 2.) Minnesota Life issued a Group Term Life Insurance Policy (the Policy) to King County. (Compl. (Dkt. # 1-1) ¶ 4; Ans. (Dkt. # 4) ¶ 4.) As a part of his benefits package, Mr. Bancroft is covered under the Policy. (Compl. ¶ 6; Ans. ¶ 6.) The Policys Basic Life Insurance provision pays one years salary upon acceptance of a claim. (Id. ) Mr. Bancroft also paid for Supplemental Life Insurance, which provides for an additional four years of salary as a death benefit. (Id. )

Included in the Policy is an Accelerated Benefits Policy Rider (the ABPR), which provides for the accelerated payment of ... the full ... amount of an insureds death benefit ... [i]f the insured has a terminal condition as defined in the [ABPR]. (11/06/17 Marisseau Decl. (Dkt. # 16) ¶ 4, Ex. A at ML 0037.) The ABPR defines a terminal condition as a condition caused by sickness or accident which directly results in a life expectancy of twenty-four months or less. (Id. ) The insured must request the accelerated payment and give Minnesota Life evidence that satisfies [Minnesota Life] that the insureds life expectancy, because of sickness or accident, is twenty-four months or less. (Id. ) The evidence that the insured provides must include certification by a physician. (Id. ) The ABPR also states:

[Minnesota Life] reserve[s] the right to ask for independent medical verification of a terminal condition. In the case of a difference of opinion, the insured has the right to mediation or binding arbitration conducted by a disinterested third party who has no ongoing relationship with either party.

(Id. ) Finally, Minnesota Life retain[s] the right to have the insured medically examined at [its] own expense to verify the insureds medical condition. (Id. )

B. Mr. Bancrofts Diagnosis with Stage IV Mantle Cell Lymphoma

Dr. Sherry Hu examined Mr. Bancroft on January 25, 2017. (Hu Decl. (Dkt. # 10) ¶ 5.) On January 25, 2017, Dr. Hu performed a bone marrow biopsy on Mr. Bancroft and ordered a PET/CT scan. (Id. ) On January 30, 2017, Mr. Bancroft underwent a PET/CT scan. (Id. ) On February 1, 2017, Mr. Bancroft returned to the clinic, and Dr. Hu informed him that he had high risk stage IV mantle cell lymphoma and recommended immediate treatment. (Id. ¶ 6; see also Plf. 1st MSJ (Dkt. # 7) at 4 (On February 1, 2017, [Mr.] Bancroft returned ... for the results of the biopsy and PET/CT.... At that time, Dr. Hu diagnosed him with Stage IV Mantle Cell Lymphoma and recommended immediate treatment.); see also 10/25/17 Bancroft Decl. ¶ 6; Compl. ¶ 16.)

On February 6, 2017, Mr. Bancroft came under the care of Dr. Andrew Cowan. (10/25/17 Bancroft Decl. ¶¶ 6-7.) Dr. Cowan confirmed Dr. Hus diagnosis. (10/25/17 Cowan Decl. (Dkt. # 9) ¶ 5.) Mr. Bancroft chose to see Dr. Cowan because he is an oncologist with expertise in mantle cell lymphoma. (10/25/17 Bancroft Decl. ¶ 6.) Dr. Cowan prescribed a treatment regime, and Mr. Bancroft started chemotherapy on February 17, 2017. (Id. ¶ 7.)

C. Mr. Bancrofts Claim to Minnesota Life

After his diagnosis, Mr. Bancroft completed a Notice of Claim for Accelerated Benefit, a form provided by Minnesota Life. (Id. ¶ 11, Ex. C.) Mr. Bancroft submitted this form to Minnesota Life on or about May 16, 2017. (Id. ) He requested payment of 100% of the accelerated benefit at that time. (Id. ) On May 26, 2017, Dr. Cowan signed an Attending Physicians Statement that was provided to Minnesota Life in support of Mr. Bancrofts claim. (See id. )

In the Attending Physicians Statement, Dr. Cowan states that Mr. Bancroft was diagnosed w/stage IV mantel cell lymphoma high risk leukemia presentation w/elevated LDH. (Id. at 5.) He states that Mr. Bancroft was undergoing VR-CAP treatment, indicated that Mr. Bancrofts progress was [i]mproved, and noted that he expected [i]mprovement as a fundamental or marked change in Mr. Bancrofts condition. (Id. at 5-6.)

Dr. Cowan indicated on the form that Mr. Bancrofts condition was terminal. (Id. at 6.) He states that Mr. Bancrofts Mantel Cell Lymphoma International prognostic index (MIPI) score is 7.2, but Dr. Cowan does not base his prognosis for Mr. Bancroft on this score. (See Cowan Dep. at 56:24-75:5.) Instead, based on a 2007 publication in Cancer (PMID 17477385), Dr. Cowan opined that the median survival for [Mr. Bancroft] would be 24 months. (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6 (italics added).) The paper on which Dr. Cowan relied was published before the MIPI score was developed in 2008. (11/13/17 Shapland Decl. ¶ 18; see Cowan Dep. at 56:24-57:4 (Q: ... So Exhibit 13 is the stuff that youre referencing as, well, the only medical literature that youre citing in support of your prognosis? A: Yeah, uh-huh. Q: And thats a 2007 study? A: Thats correct.); see id. , Ex. 13.) Dr. Cowan later testified that his prognosis [also] included [his] overall evaluation of Mr. Bancroft at that time. (10/25/17 Cowan Decl. ¶ 9.) Dr. Cowan provided his contact information on the form, as well as contact information for Dr. Hu. (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.)

During his deposition, Dr. Cowan conceded that the 2007 Cancer publication is the only medical literature he relied upon to support his 24-month life expectancy estimate. (Cowan Dep. at 56:24-57:5.) He also acknowledged that the 2007 study could be outdated and that at least one of the treatments that Mr. Bancroft received was not available during the applicable time period of the 2007 study. (Id. at 58:3-25; 59:8-14.) Dr. Cowan testified that the reason, in part, that he relied on the 2007 study rather than Mr. Bancrofts MIPI score was due to Mr. Bancrofts high white blood cell count and LDH. (Id. at 55:13-56:4.) Yet, Dr. Cowan admitted that these factors are accounted for as part of the MIPI score. (Id. at 56:10-12.) Dr. Cowan also stated that chromosomal changes, such as the deletion of 17p (long arm chromosome 17), was a factor that put Mr. Bancroft at high risk. (Id. at 55:13-56:4; 10/25/17 Cowan Decl. ¶ 6.) Yet, Dr. Cowan also admitted in his deposition that a 2011 publication in the Journal of Leukemia certainly ... call[s] into question whether 17p deletions are important. (Cowan Dep. at 65:11-67:4; see also Grinblatt Decl. ¶ 7.) Dr. Cowan acknowledged that his 24 month estimate for Mr. Bancroft life expectancy was a deviation from the MIPI score prognosis, but he stated that life expectancy estimation is not a perfect science, and he tries to be more realistic and maybe a bit paranoid and pessimistic rather than overly optimistic. (Cowan Dep. at 61:3-18.)

Mr. Bancroft does not recall Dr. Cowan advising him that his life expectancy was 24 months or less. (5/7/18 Marisseau Decl. ¶ 5, Ex. 1 (Bancroft Dep.) at 87:8-88:16.) Rather, Mr. Bancroft repeatedly described Dr. Cowan as very encouraging or very positive. (Id. at 44:3-5; 46:1-5.) Indeed, in contrast to the 24-month median survival prognosis that Dr. Cowan provided to Minnesota Life, Dr. Cowan advised Mr. Bancroft in February 2017 that the median overall survival [for] mantle cell lymphoma is about 5-7 years ... but with new intensive treatments ... many patients are living much longer. (Cowan Dep. at 18:19-19:5.) Mr. Bancroft testified that he [a]bsolutely expected Dr. Cowan to provide him with accurate information concerning overall median survival so that he could make informed decisions about treatment options (Bancroft Dep. at 45:16-21), and Dr. Cowan testified that his statement to Mr. Bancroft was accurate at the time he gave it. (Cowan Dep. at 19:11-14).

D. Minnesota Lifes Initial Review of Mr. Bancrofts Claim

Upon receipt of Mr. Bancrofts claim, Minnesota Life forwarded the claim to its medical reviewer, Dr. Maryam Shapland, for an evaluation of Mr. Bancrofts prognosis. (See 11/13/17 Shapland Decl. ¶ 7.) Dr. Shapland limited her review to the notes of Minnesota Lifes claims examiner, Ms. Sarah Taylor, and Dr. Cowans Attending Physicians Statement. (4/19/18 Crowe Decl. ¶ 3 (attaching excerpts of the March 28, 2018, deposition of Dr. Shapland) (Shapland Dep.) at 31:13-20.) She also reviewed Up to Date, a resource that provides information and current scientific articles on various medical conditions, including mantle cell lymphoma. (Id. at 52:9-55:6; 5/7/18 Shapland Decl. (Dkt. # 38) ¶ 2.) The Up to Date article that Dr. Shapland reviewed further referred to an article in a publication known as Blood. (Shapland Dep. at 52:9-55:6.) The Blood article consists of the first published information on the MIPI score. (Id. ; Cowan Dep. at 13:9-12.) Dr. Shapland did not read the Blood article, but relied instead on the information Up to Date conveyed about that article. (Shapland Dep. at 52:9-55:6.)

The MIPI score is a well-recognized evidence based prognostic index for patients with mantle cell lymphoma. (11/13/17 Shapland Decl. ¶ 8.) A physician can determine an MIPI score for any individual diagnosed with mantle cell lymphoma based on four independent factors: age, ECOG performance status, lactate dehydrogenase (LDH) (which is a cell enzyme), and leukocyte count (which is also known as white blood cell count). (Id. ¶ 9; Grinblatt Decl. (Dkt. # 37) ¶ 5; see also Cowan Dep. at 13:13-18.) A biologic MIPI score includes those same four factors but also includes analysis of Ki-67 positive cells, a marker for proliferation or how fast a tumor is growing that has independent prognostic value when considered with the MIPI score. (11/13/17 Shapland Decl. ¶ 9; Grinblatt Decl. ¶ 6; Cowan Dep. at 16:2-19.) The MIPI, including the biologic MIPI, takes into account all the characteristics of the disease at issue that have been confirmed to have a statistically significant effect on prognosis. (Grinblatt Decl. ¶ 6; Cowan Dep. at 16:2-19.)

An MIPI score from 6-12 is considered a high-risk MIPI score. (11/13/17 Shapland Decl. ¶ 10.) Mr. Bancrofts attending physician, Dr. Cowan, scored Mr. Bancroft at 7.2. (Id. ; 10/25/17 Bancroft Decl. ¶ 11, Ex. C at 5.) The 2008 Blood article indicated that patients with a high-risk MIPI score had a median overall survival of 29 months and patients with a high-risk biologic MIPI score had a median overall survival of 37 months. (11/13/17 Shapland Decl. ¶ 11.) Thus, based on his score, the high-risk biologic MIPI predicted a median overall survival of 37 months for individuals such as Mr. Bancroft. (See id. ; Grinblatt Decl. ¶ 6; see also 10/25/17 Cowan Decl. ¶ 13 (The letter provided by Minnesota Life also refers to a life expectancy of 37 months being the median survival expected of Mr. Bancroft. I presume that this was taken from ... Blood 2008-using the biologic MIPI, which is not as widely used as the MIPI score.) (italics added).) Dr. Shapland also considered Dr. Cowans statement on the Attending Physicians Statement that Mr. Bancroft was responding to treatment, his notation that Mr. Bancrofts condition was [i]mproved, and his expectation that Mr. Bancroft will continue to experience fundamental or marked [i]mprovement. (See 10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.) Dr. Shapland did not ask for any additional medical records or information from Dr. Cowan, although she recognized that she had the ability to do so. (Shapland Dep. at 66:10-67:4.)

Based on her review of Dr. Cowans Attending Physicians Statement and the medical information in Up to Date, Dr. Shapland opined that she was unable to determine with greater than 90% certainty that [Mr. Bancrofts] life expectancy is 24 months or less. (4/19/18 Crowe Decl. ¶ 3, Ex. 22 (attaching claim journal entries from Minnesota Life for Mr. Bancrofts claim).) As Minnesota Life explained:

The 90% confidence in a life expectancy of 24 months or less is a standard applied at Minnesota Life. It is based on the policy provision that provides that Minnesota Life must be given evidence that satisfies us that the insureds life expectancy, because of accident or sickness, is twenty four months or less.

* * * * * * * * * * * * *

As noted, Dr. Shapland was orally advised of Minnesota Lifes policy that she should apply a 90% level of confidence in determining the level of satisfactory evidence to determine life expectancy, rather than 100%.

(4/19/18 Crowe Decl. ¶ 3, Ex. 32 at 7, 9.) Nevertheless, Dr. Shapland testified that whether she applied a more likely than not or a 90% certainty standard to the evidence relating to Mr. Bancrofts life expectancy, her opinion would be the same. (5/7/18 Shapland Decl. ¶ 10.) She also testified that she believes both her opinion and Dr. Cowans prognosis are reasonable. (Shapland Dep. at 71:14-17 (I feel that my opinion was reasonable, and [Dr. Cowans] opinion was reasonable.... Theres no exact way to determine exact life expectancy.).)

Dr. Cowan testified that he put Mr. Bancrofts MIPI score into his medical notes because it conveys information about risk and prognosis. (Cowan Dep. at 13:2.) He agreed that the MIPI prognostic index was first validated in the 2008 Blood article and then confirmed again in a later 2014 study. (Id. at 13:3-12; 15:1-16:1, Ex. 3.) Although Dr. Cowan believed that his 24-month prognosis for Mr. Bancroft in the Attending Physicians Statement was reasonable, he agreed that either the 29-month non-biologic MIPI or the 37-month biologic MIPI was a reasonable estimate of Mr. Bancrofts life expectancy at the time.

Minnesota Life retained an expert witness, Dr. David Grinblatt, M.D., who specializes in blood cancers. Dr. Grinblatt agrees with Dr. Shapland that the median overall survival rate for Mr. Bancroft was 37 months at the time of his claim based on the standard biologic MIPI. (Grinblatt Decl. ¶ 6.) Further, he opines:

The biologic MIPI, when available, is the standard prognostic metric for mantle cell lymphoma. The MIPI, including the biologic MIPI, takes into account all of the characteristics of this disease which have been validated to have a statistically significant effect on prognosis. It is the fairest, most objective measure for determining prognosis for mantle cell lymphoma. The MIPI, including biologic MIPI, remains the best and only validated method to assess survival in patients with Mantle Cell Lymphoma.

(Id. ) He also notes that it was reasonable to determine that Mr. Bancroft had a median life expectancy of greater than 24 months as of May 2017, based on his February diagnosis. (Id. ¶ 10.)

E. Minnesota Lifes Initial Response to Mr. Bancrofts Claim.

After receiving Dr. Shaplands opinion, Minnesota Lifes claims examiner, Ms. Taylor, sent a letter dated June 8, 2017, to Mr. Bancroft containing the following statement:

With the information we received from your doctor, we are unable to determine, at this time, if your life expectancy will be less than 24 months, which the policy requires. Your doctor did indicate on the claim form that your condition was terminal and provided a life expectancy of 24 months. Per medical literature, median survival for your diagnosis is 37 months. You were diagnosed in January 2017. You are currently undergoing treatment and your physician states that your condition has improved and marked change (improvement) is continued to be expected. We understand this a difficult and sensitive issue. Please be assured this is not a permanent denial of benefits. At this time, however, the medical information does not support a life expectancy of 24 months or less, which the policy requires. If you have new information that supports a life expectancy of 24 months or less, please submit it for our review and we will gladly reassess your claim for the Accelerated Benefit.

(4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) Ms. Taylor also invited Mr. Bancroft to ask questions and to call her on a toll-free direct dial number. (Id. ) Mr. Bancroft did not contact Minnesota Life; nor did he submit any additional information related to his claim prior to filing suit. (See Bancroft Dep. at 95:1-23.)

In the letter, Minnesota Life did not refer to Dr. Shaplands review of Mr. Bancrofts claim or her use of the 90% certainty standard for life expectancy in evaluating Mr. Bancrofts medical information. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) The claims examiner who handled Mr. Bancrofts claim did not seek an independent medical review prior to sending the letter. (4/18/18 Crowe Decl. ¶ 3 (attaching excerpts of the March 28, 2018 deposition of Sarah Taylor) (Taylor Dep.) at 22:24-23:1 (Q: Have you ever sought independent medical verification of any claim youve processed? A: Nope.).) Indeed, she testified that she does not know what such a review entails. (Id. at 22:21-23 (Q: ... You dont know what independent medical review entails? A: No.").)

F. Mr. Bancrofts Suit

Although the ABPR provides that [i]n the case of a difference of opinion, the insured has the right to mediation or binding arbitration (10/25/17 Bancroft Decl. ¶ 16, Ex. A at 12), Mr. Bancroft demanded neither after receiving Minnesota Lifes June 8, 2017, letter. Instead, Mr. Bancroft engaged counsel, and on June 22, 2017, he filed and served a 20-day notification sheet under the Insurance Fair Conduct Act (IFCA), RCW 48.30.015. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. E; see also 4/19/18 Crowe Decl ¶ 2.) Minnesota Life admits that it received Mr. Bancrofts 20-day IFCA notice (Compl. ¶ 44; Ans. ¶ 44) but did not respond within the 20-day notice period (4/19/18 Crowe Decl. ¶ 2).

Mr. Bancroft filed suit against Minnesota Life in King County Superior Court on August 2, 2017. (See Compl.) He alleges claims for (1) breach of contract (id. ¶¶ 46-48), (2) breach of the covenant of good faith and fair dealing (id. ¶¶ 49-51), (3) negligence (id. ¶¶ 52-54), (4) insurance bad faith (id. ¶¶ 55-58), (5) breach of Washingtons Consumer Protection Act (CPA), RCW ch. 19.86 (id. ¶¶ 59-63), (6) breach of Washingtons IFCA (id. ¶¶ 64-67), and (7) declaratory relief (id. ¶¶ 68-71). Minnesota Life removed the action to this court on August 30, 2017. (Notice of Rem. (Dkt. # 1).)

On October 25, 2017, Mr. Bancroft filed an early motion for summary judgment. (Plf. 1st MSJ (Dkt. # 7).) Along with his motion, Mr. Bancroft filed a declaration from Dr. Cowan dated October 19, 2017. (See 10/25/17 Cowan Decl.) Pursuant to Federal Rule of Civil Procedure 56(d), the court denied the motion without prejudice to refiling, if appropriate, after Minnesota Life had an opportunity obtain discovery. (2/21/18 Order (Dkt. # 26) at 12.)

G. Dr. Shaplands Second Review of Mr. Bancrofts Claim

After receiving Dr. Cowans October 19, 2017, declaration, Dr. Shapland reevaluated Mr. Bancrofts life expectancy as of November 1, 2017. (5/7/18 Shapland Decl. ¶¶ 8-9.) She reviewed additional medical literature, which she concluded supported her original opinion. (Id. ¶ 8; 4/19/18 Crowe Decl. ¶ 3, Ex. 22 at 1.) She noted that in his declaration, Dr. Cowan acknowledged that the median survival using the biologic MIPI with a high risk MIPI score was 37 months and that using the non-biologic MIPI with a high risk MIPI score provided a median survival of 29 months for individuals with similar factors as Mr. Bancroft. (5/7/18 Shapland Decl. ¶ 8 (quoting 10/25/17 Cowan Decl. ¶ 13).) Dr. Shapland interpreted Dr. Cowans statement to mean that he was confirming that Mr. Bancroft shared similarities with individuals who had a median survival of 29 months using the non-biologic MIPI. (See id. ) Dr. Shapland also interpreted Dr. Cowans declaration as suggesting that Mr. Bancroft had experienced a negative reaction to treatment. (Id. ¶ 9.) Mr. Bancroft also testified in October 2017 that he had experienced severe reactions to some of his treatments and that Dr. Cowan had needed to adjust his treatments accordingly. (See 10/25/17 Bancroft Decl. ¶ 8.) Due to the passage of nearly five additional months since her original opinion in early June 2017, her acceptance of Dr. Cowans October 2017 statement that individuals with similar factors as Mr. Bancroft had a (non-biologic) MIPI prognosis of 29 months, her inference that the marked improvement anticipated by Dr. Cowan had not occurred, and the fact that Mr. Bancroft may have taken a turn for the worse or there may have been negative developments in Mr. Bancrofts treatment, Dr. Bancroft used the 29-month median survival (non-biologic MIPI) and determined based on a 90% certainty standard that as of November 1, 2017, Mr. Bancrofts life expectancy was 24 months or less. (5/7/18 Shapland Decl. ¶ 9; Shapland Dep. at 108:3-122:6.) Minnesota Life paid Mr. Bancroft $384,000.00 the next day. (Plf. 2d MSJ at 12; Def. MSJ at 10.)

III. ANALYSIS

On April 19, 2018, Mr. Bancroft filed a second motion for summary judgment on liability for his claims of (1) breach of contract; (2) bad faith; (3) breach of Washingtons IFCA; and (4) breach of Washingtons CPA. (See generally Plf. 2d MSJ.) On May 7, 2018, Minnesota Life filed its response to Mr. Bancrofts motion and a cross motion for summary judgment in its favor. (See generally Def MSJ.) The court considers both motions after resolving an evidentiary issue.

A. Admissibility of Don Kelleys Expert Testimony

The court first addresses a preliminary issue concerning the admissibility of certain evidence. In its reply memorandum, Minnesota Life objects to the admissibility of Mr. Don Kelleys opinions and testimony. (Def. Reply (Dkt. # 49) at 5-6.) Mr. Kelley is Mr. Bancrofts expert witness on insurance issues. (See Kelley Decl. (Dkt. # 48) ¶ 2, Ex. J (attaching Mr. Kelleys expert witness report).) In response to Minnesota Lifes objection, Mr. Bancroft filed a surreply arguing that Minnesota Lifes request to exclude Mr. Kelleys testimony was improperly presented in reply and otherwise in violation of the local rules. (Plf. Surreply (Dkt. # 51) at 1.) Mr. Bancroft maintains that he had an inadequate opportunity to respond to Minnesota Lifes objection. (See id. )

Before considering the admissibility of Mr. Kelleys testimony, the court first addresses Mr. Bancrofts procedural objection. Local Rule LCR 7(d)(4) states that [e]xcept upon a showing of good cause, any motion in limine shall be filed as one motion. Local Rules W.D. Wash. LCR 7(d)(4). Mr. Bancroft apparently objects that Minnesota Life did not file its objection to Mr. Kelleys testimony in a separate omnibus motion containing all of its motions in limine as required by this local rule. (See Plf. Surreply at 1.) However, Local Rule LCR 7 begins with the following proviso: Unless otherwise provided by rule or court order, motions shall be noted for consideration as follows. Id. , LCR 7. Thus, the directive in Local Rule 7(d)(4) that all motions in limine shall be filed as one motion, is cabined by the proviso-[u]nless otherwise provided by ... court order. See id. Here, the court expressly separated motions objecting to expert witness testimony from all other motions in limine in its scheduling order. (See Sched. Order (Dkt. # 20) at 1.) The courts scheduling order requires parties to file all dispositive motions and motions challenging expert witness testimony by July 11, 2018, but all other motions in limine by August 28, 2018. (Id. ) Thus, although it was not filed as a separate motion, Minnesota Lifes June 1, 2018, objection to Mr. Kelleys testimony was timely and not improperly segregated from Minnesota Lifes other motions in limine.

Mr. Bancroft also objects that Minnesota Life raised its challenge to Mr. Kelleys testimony for the first time in its reply memorandum. (Plf. Surreply at 1.) Mr. Bancroft, however, did not rely upon Mr. Kelleys testimony until his third memorandum addressing the parties cross motions. (See Plf. Resp. (Dkt. # 46) at 4, 11, 17 n.15, 24.) Thus, Minnesota Lifes first opportunity to address the admissibility of Mr. Kelleys expert opinions was in its reply memorandum. (See Def. Reply at 5-6). A trial court can only consider admissible evidence in ruling on a motion for summary judgment. Orr v. Bank of Am., NT & SA , 285 F.3d 764, 773 (9th Cir. 2002). Thus, it was substantively proper for Minnesota Life to raise its objections to the admissibility of Mr. Kelleys expert testimony in response to Mr. Bancrofts reliance thereon.

In any event, Mr. Bancroft is not prejudiced by the manner in which Minnesota Life raised its objection. Mr. Bancroft filed a surreply and therefore had the opportunity to address Minnesota Lifes objection. (See Plf. Surreply.) Further, Mr. Bancroft provided the entire transcript of Mr. Kelleys deposition testimony to the court (see 6/4/18 Frost Decl. (Dkt. # 52) ¶ 2, Ex. A (attaching a transcript of Mr. Kelleys deposition); see also Plf. Surreply at 1 (To any extent the Court considers defendants request to exclude Mr. Kelleys testimony, the Court should have full opportunity to review Mr. Kelleys full deposition testimony as the excerpts provided by [Minnesota Life] are incomplete and/or misleading as to Mr. Kelleys full testimony provided.) ), and the court has reviewed it. Further, the court specifically notified the parties to be prepared to address the admissibility of the opinions and testimony of Mr. Kelley at oral argument. (See 7/10/18 Order (Dkt. # 60).) Mr. Bancrofts counsel addressed the issue orally and provided the court with a hand-out highlighting areas of Mr. Kelleys expert opinion report that Mr. Bancrofts counsel concedes are not admissible. (See Report (Dkt. # 63).) Accordingly, Mr. Bancroft has had ample opportunity to address Minnesota Lifes objections (Plf. Surreply at 1), and he is not prejudiced by the courts consideration of the issue.

The court now turns to the substance of Minnesota Lifes objection. Minnesota Lifes objections to Mr. Kelleys testimony fall into two categories. First, Minnesota Life argues that Mr. Kelley is not qualified to critique various medical opinions as he does. (Def. Reply at 5-6.) Second, Minnesota Life objects that Mr. Kelleys expert opinion report is replete with legal conclusions that are not helpful to the trier of fact. (Id. )

Federal Rule of Evidence 702 requires that a prospective witness be qualified as an expert by knowledge, skill, experience, training, or education[.] Fed. R. Evid. 702 ; see also Daubert v. Merrell Dow Pharm., Inc. , 43 F.3d 1311, 1315 (9th Cir. 1995). The Ninth Circuit has defined this as the threshold issue in determining whether a witness may come before the jury cloaked with the mantle of an expert under Rule 702, and has cautioned that care must be taken to assure that a proffered witness truly qualifies as an expert, and that such testimony meets the requirements of Rule 702. Jinro Am. Inc. v. Secure Invs., Inc. , 266 F.3d 993, 1004 (9th Cir.), opinion amended on denial of rehg , 272 F.3d 1289 (9th Cir. 2001). In addition, the interpretation of an insurance policy is a question of law for the court. McHugh v. United Serv. Auto. Assn , 164 F.3d 451, 454 (9th Cir. 1999). Thus, the Ninth Circuit has expressly stated that expert testimony from an attorney cannot be used to provide legal meaning or interpret ... [insurance] policies as written. Id.

The lions share of Mr. Kelleys expert opinion consists of his critique of Dr. Shaplands medical opinion and her review of the medical literature underpinning her opinion and his analysis of Dr. Cowans prognosis for Mr. Bancroft and the medical literature underpinning that prognosis. (See Kelley Decl. ¶ 2, Ex. J at 7-9.) But Mr. Kelley is not a medical doctor and asserts no medical expertise. (Id. at 1.) Instead, he is an attorney who specializes in insurance matters. (Id. ) Indeed, Mr. Bancrofts counsel admitted during oral argument that Mr. Kelley has no medical qualifications. Mr. Kelley is, therefore, unqualified to opine on the adequacy of either Dr. Shaplands or Dr. Cowans medical opinions or the adequacy of their review of the medical literature. See, e.g. , Nguyen v. Chater , 172 F.3d 31, 35 (1st Cir. 1999) (rejecting the Social Security Commissioners suggestion that despite the medical opinion, the medical records supported the ALJs determination, and holding that an ALJ is simply not qualified to interpret raw medical data in functional terms and no medical opinion supported the determination); see also Broadcort Capital Corp. v. Summa Med. Corp. , 972 F.2d 1183, 1194-95 (10th Cir. 1992) (affirming the trial courts determination that an attorney with some education and training in the field was not qualified as an expert in the securities area).

During oral argument, Mr. Bancrofts counsel submitted a copy of Mr. Kelleys expert witness report with certain portions highlighted in gray. (See Report.) Mr. Bancrofts counsel conceded that the highlighted portions of Mr. Kelleys expert report are not admissible. (See id. ) Mr. Kelleys first opinion is that Minnesota Life failed to conduct a reasonable investigation of the relevant available information before denying [Mr.] Bancrofts claim. (Id. at 7.) Mr. Bancroft concedes that the first paragraph of the analysis supporting this opinion is inadmissible. (Id. at 7-8.) The court, however, excludes the entire portion of the report underpinning this opinion. The entire analysis behind this opinion is intertwined with Mr. Kelleys improper evaluation of Dr. Cowans and Dr. Shaplands medical opinions. Indeed, Mr. Kelley even includes this remarkable admission: As a lay person, not particularly trained in medicine, I would think that a person taking the cocktail of medications [Mr.] Bancroft was taking would be expected to improve. (Id. at 8.) In this statement, Mr. Kelley acknowledges his complete lack of medical expertise. Because his opinion concerning the adequacy of Minnesota Lifes investigation is entwined with his analysis of Dr. Shaplands and Dr. Cowans medical opinions, he is not qualified to offer the opinion at issue. Accordingly, the court excludes Mr. Kelleys first opinion.

Mr. Kelleys second opinion is that Minnesota Life failed to fairly and objectively interpret the information it received before denying [Mr.] Bancrofts claim. (Id. at 8.) Mr. Bancrofts counsel concedes that the first paragraph of Mr. Kelleys analysis underlying this opinion, which contains Mr. Kelleys evaluation of Dr. Shaplands and Dr. Cowans medical opinions, is inadmissible. (See id. at 8-9.) Mr. Kelleys entire opinion, however, concerning Minnesota Lifes interpretation of the information at issue is entangled with his analysis of the doctors medical opinions and cannot be divorced from it. (See id. ) The court, therefore, excludes the entire opinion.

Mr. Kelleys third opinion is that Minnesota Life failed to administer [Mr.] Bancrofts claim in accordance with the express provisions of his Policy and in accordance with the insurance industry custom and practice. (Id. at 9.) Mr. Bancrofts counsel again concedes that the majority of this opinion is inadmissible. (See id. at 9-10.) Indeed, the analysis underlying Mr. Kelleys opinion consists extensively of how he believes the Policy and ABPR should be interpreted. (See id. ) As discussed above, expert testimony from an attorney cannot be used to provide legal meaning or interpret insurance policies; policy interpretation is an issue of law for the court. See McHugh , 164 F.3d at 454. The court concludes that the remainder of the analysis underlying Mr. Kelleys opinion is also inadmissible. Once again, Mr. Kelleys analysis is based on the adequacy of Dr. Shaplands medical opinion, and as discussed above, he is unqualified to perform this analysis.

Mr. Kelleys fourth opinion is that Minnesota Life misrepresented a critical fact as the basis for denying [Mr.] Bancrofts claim. (Report at 11.) Mr. Bancrofts attorney believes that this opinion and its supporting analysis is admissible. (See id. ) The court, however, disagrees. Mr. Kelleys opinion is based entirely on his assessment of Dr. Shaplands analysis of the medical literature underpinning her medical opinions in this case. As repeatedly stated above, he is unqualified as a lawyer without medical training to conduct this analysis.

Mr. Kelley states his final opinion as follows: For all the above reasons, it is my opinion that Minnesota Life failed to give [Mr.] Bancrofts interests as much consideration as they did their own. (Id. ) Because the court has excluded all of Mr. Bancrofts prior opinions either because he lacks the necessary medical expertise or because he offers legal opinions or interpretations of the Policy or ABPR, there is no basis or foundation remaining to undergird this last opinion. Accordingly, the court finds that his last opinion is inadmissible as well. In sum, the court excludes the entirety of Mr. Kelleys opinions. Accordingly, the court will not consider Mr. Kelleys expert opinions or testimony when evaluating the cross motions at issue.

B. Standard of Review for Summary Judgment of Cross Motions

Summary judgment is proper where, viewing the evidence and inferences therefrom in favor of the nonmoving party, 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. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those that may affect the outcome of the suit under governing law, and an issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. [W]hen simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them. Tulalip Tribes of Wash. v. Wash. , 783 F.3d 1151, 1156 (9th Cir. 2015) (quoting Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1134 (9th Cir. 2001) ). The court rule[s] on each partys motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard. Id. (internal quotation marks omitted) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998) ).

C. Breach of Contract

The party seeking to establish coverage under an insurance contract-here, Mr. Bancroft-bears the burden of proving that coverage under the policy is triggered. See Pleasant v. Regence BlueShield , 181 Wash.App. 252, 325 P.3d 237, 243 (2014) (citing Diamaco, Inc. v. Aetna Cas. & Sur. Co. , 97 Wash.App. 335, 983 P.2d 707, 709 (1999), as amended on reconsideration (Oct. 12, 1999) ). A breach of contract claim against an insurance company depend[s] on proof of four common elements: duty, breach, causation, and damages. Baldwin v. Silver , 165 Wash.App. 463, 269 P.3d 284, 289 (2011) (citing Nw. Indep. Forest Mfrs. v. Dept of Labor & Indus. , 78 Wash.App. 707, 899 P.2d 6, 9 (1995) (A breach of contract is actionable only if the contract imposes a duty, the duty is breached, and the breach proximately causes damage to the claimant.) ).

Mr. Bancroft argues that Minnesota Life breached the ABPR in two ways. First, he argues that Minnesota Life breached the ABPR when it did not pay his claim in June 2017. Second, he argues that Minnesota Life breached the ABPR by failing to provide him with either mediation or binding arbitration in June 2017. The court considers each argument in turn.

1. Evidence that Satisfies Minnesota Life that the Insureds Life is 24 Months or Less

Mr. Bancroft seeks summary judgment that Minnesota Life breached the ABPR because, despite providing information sufficient to demonstrate that his life expectancy [wa]s 24 months[,] ... includ[ing] certification by a physician, Minnesota Life still denied his claim on June 8, 2017. (Plf. 2d MSJ at 13.) Mr. Bancroft argues that his doctors prognosis plainly falls within the policy terms and the [ABPR] benefit should have been paid. (Id. ) Mr. Bancrofts argument, however, ignores the plain language of the ABPR. Minnesota Lifes ABPR does not state that it will pay the benefit based on a physicians certification that the insureds life expectancy is 24 months or less. Rather, the ABPR states:

We must be given evidence that satisfies us that the insureds life expectancy, because of sickness or accident, is twenty-four months or less. That evidence must include certification by a physician.

(11/06/17 Marisseau Decl. ¶ 4, Ex. A.) Based on this language, Minnesota Life argues that Mr. Bancroft failed to provide evidence that satisfied Minnesota Life. (Def. MSJ at 11-16; see also Def. Reply at 2 ([Mr. Bancrofts] breach of contract claim fails because he did not furnish, in June 2017, evidence that satisfies [Minnesota Life] that the insureds life expectancy ... is twenty-four months or less. ) (quoting 4/19/18 Crowe Decl. ¶ 3, Ex. 19 at ML 0037).) Thus, Minnesota Life argues that not only is Mr. Bancroft not entitled to summary judgment on his breach of contract claim, but also that the court should enter summary judgment in Minnesota Lifes favor instead. (See Def. Reply at 2 (Plaintiff ... fail[s] to raise a genuine dispute of material fact as to any of his claims.).)

The Washington Supreme Court has examined language similar to the policy provision at issue here. In Conway v. Minnesota Life Insurance Co. , the insured failed to pay a premium on his life insurance policy, and the policy lapsed. 62 Wash. 49, 112 P. 1106, 1107 (1911). The insured applied for reinstatement but was required under the policy to furnish[ ] ... [the insurer] satisfactory evidence that he is in good health. Id. The company declined to reinstate the policy because it found the insureds evidence unsatisfactory. Id. The Washington Supreme Court held that the policy language provided the insurance company with the discretion to decide whether the insureds proof was sufficient. Id. In other words, the Court determined that the policy required the insured to provide such satisfactory evidence of good health meaning satisfactory to the company, and giving [the company] the right of rejection if, in the exercise of the discretion vested in it, such evidence was not satisfactory. Id. Conway supports Minnesota Lifes position that, under the ABPRs language, Minnesota Life has the discretion to determine if the evidence of Mr. Bancrofts life expectancy was satisfactory or not.

More recently, the Eleventh Circuit also considered similar policy language, and its decision aligns with Conway . In Florida Tube Corp. v. MetLife Insurance Co. , beneficiaries of a life insurance policy brought suit against the insurer, alleging that the insurer should pay them under the policy because circumstantial evidence of the insureds death in a solo plane accident satisfied the policys requirements. 603 F. Appx 904, 905 (11th Cir. 2015). After the insurer rejected the beneficiaries claim and the decedents death certificate as proof of death that met the requirements of the policy, the beneficiaries submitted a copy of the National Transportation Safety Boards (NTSB) report, denominating it as sufficient proof of death. Id. at 906. The insurer rejected the NTSB report as insufficient proof as well, and the beneficiaries filed suit. Id. The Eleventh Circuit held that the policys proof satisfactory to us term was unambiguous and had only one reasonable interpretation. Id. at 907. The court held that the plain meaning of proof satisfactory to us means proof satisfactory to MetLife, and that applying that meaning, the insurer was within its discretion to deny coverage when the beneficiaries gave the insurer circumstantial proof of death that it deemed unsatisfactory. Id.

Mr. Bancroft correctly notes that Washington law concerning the relationship between insureds and their insurance companies has developed since Conway . Specifically, Mr. Bancroft argues that in Washington an insurer must deal fairly with an insured, giving equal consideration in all matters to the insureds interests. Van Noy v. State Farm Mut. Auto. Ins. Co. , 142 Wash.2d 784, 16 P.3d 574, 579 (2001) (quoting Tank v. State Farm Fire & Cas. Co. , 105 Wash.2d 381, 715 P.2d 1133, 1136 (1986) ). Mr. Bancroft argues that this principle prohibits Minnesota Life from demanding evidence of life expectancy that satisfies Minnesota Life in its discretion alone, but rather must consider its insureds interests on an equal footing when determining whether the insureds evidence of life expectancy is satisfactory. (See Plf. Reply at 5-6.)

The court, however, finds no case law to support the notion that an insurers duty to deal fairly with an insured or to place an insureds interests on equal footing with its own requires a rewriting of unambiguous policy language. Nevertheless, the court recognizes that when an insured has a contractual right that depends on the insureds furnishing of evidence or proof which is satisfactory to the company or satisfies the company, the weight of authority applies an objective standard. See 29 John Alan Appleman, Appleman on Insurance , § 179.03[D][4] (2d ed. 2006). In other words, the evidence need only be that which would be satisfactory to a reasonable insurer. Id. Without so ruling, but for the purpose of deciding the present cross motions, the court assumes that, in light of its more recent articulation of an insurers duty to deal fairly with its insured, see St. Paul Fire & Marine Ins. Co. v. Onvia, Inc. , 165 Wash.2d 122, 196 P.3d 664, 669 (2008), the Washington Supreme Court would apply this higher standard if it were considering the policy language at issue in Conway today. Even assuming the application of a standard higher than the one articulated in Conway , however, there is no genuine dispute of material fact that Minnesota Life did not breach the contract by provisionally denying Mr. Bancrofts claim on June 8, 2017.

Minnesota Life provisionally denied Mr. Bancrofts claim because Dr. Cowan relied upon an obsolete study in opining that Mr. Bancroft had a life-expectancy of 24 months or less and ignored a more recent and scientifically sound measure-Mr. Bancrofts MIPI score. See infra §§ II.C, D. Further, even Dr. Cowan-Mr. Bancrofts treating oncologist-concedes that reasonable estimates of Mr. Bancrofts life expectancy could be calculated by using either the 29-month non-biologic MIPI or the 37-month biologic MIPI. (Cowan Dep. at 61:19-62:2; 62:24-63:8.) Indeed, all of the medical experts in this case-Mr. Bancrofts treating physician, Minnesota Lifes reviewing doctor, and Minnesota Lifes medical expert witness-agree on this point. (See id. ; see also Grinblatt Decl.

¶¶ 6, 10; Shapland Dep. at 71:14-17.) Moreover, Mr. Bancroft provides no expert medical testimony to the contrary. Thus, Minnesota Life had objective reasons to deny an accelerated payment of Mr. Bancrofts life insurance benefits on June 8, 2017. The most recent medical literature did not support Dr. Cowans prognosis of a life expectancy of 24 months or less, and Mr. Bancrofts MIPI score indicated that his life expectancy was longer than 24 months. Thus, even considering the policy language at issue-that Mr. Bancroft must submit evidence that satisfies Minnesota Life-under the standard of a reasonable insurer, there is no genuine dispute of material fact that Minnesota Life did not breach the ABPR by provisionally denying Mr. Bancrofts claim on June 8, 2017.

Mr. Bancroft nevertheless asserts that Dr. Shaplands adoption of the 29-month non-biologic MIPI for calculating Mr. Bancrofts life expectancy when she re-evaluated his claim in November 2017, is evidence that Minnesota Life breached the ABPR when it denied his claim on June 8, 2017. (Plf. Reply at 3 (citing Shapland Dep. at 109:18-110:13).) Mr. Bancroft argues that if Minnesota Life had applied the non-biologic MIPI in June, when it first assessed Mr. Bancrofts claim, it would have concluded that Mr. Bancrofts life expectancy was 24 months or less. (Id. ) However, Mr. Bancrofts argument is based on faulty arithmetic. Mr. Bancroft admits that he was diagnosed on February 1, 2017. Thus, using the 29-month non-biologic MIPI score, at the time Dr. Cowan signed the Attending Physicians Statement on May 26, 2017, or at the time Minnesota Life denied Mr. Bancrofts claim on June 8, 2017, Mr. Bancroft would not have had a life expectancy of 24 months or less. As of May 26, 2017, Mr. Bancroft would have had a life expectancy slightly greater than 25 months; on June 8, 2017, his life expectancy would have been slightly less than 25 months. But in either event, it would have been more than twenty-four months. (See 11/06/17 Marisseau Decl. ¶ 4, Ex. A.) Thus, Dr. Shaplands adoption of the 29-month non-biologic MIPI score in November 2017 does not raise a genuine dispute of material fact concerning Mr. Bancrofts breach of contract claim preventing the entry of summary judgment in Minnesota Lifes favor.

Mr. Bancroft, however, also takes umbrage with Minnesota Lifes application of a 90% confidence or 90% certainty factor in assessing its insureds life expectancy and implies that Minnesota Lifes use of this factor violates its duty to give equal consideration in all matters to Mr. Bancrofts interests. (See Plf. 2d MSJ at 14; Plf. Reply at 3; Plf. Resp. at 17-18); see Van Noy , 16 P.3d at 579. Instead, Mr. Bancroft asserts that Minnesota Life and Dr. Shapland should have applied a more likely than not standard. (See Plf. 2d MSJ at 14; Plf. Reply at 5-8; Plf. Resp. at 15-18.) Mr. Bancroft, however, fails to raise a genuine dispute of material fact preventing the entry of summary judgment in Minnesota Lifes favor because Dr. Shapland testified that-irrespective of whether she applied the 90% certainty standard or a more likely than not standard, her opinion concerning Mr. Bancrofts life expectancy would be the same. (5/7/18 Shapland Decl. ¶ 10 (In looking at whether the evidence presented in the May 26 claim showed that Mr. Bancrofts life expectancy was 24 months or less, my opinion is the same regardless of whether ... I apply a more likely than not or a 90% certainty standard.).) Mr. Bancroft has not provided any medical testimony to counter Dr. Shaplands testimony in this regard. (See generally Dkt.) The court does not hold that Minnesota Life was required to apply a more likely than not standard. But, even if Mr. Bancroft is correct, the application of a more likely than not standard would have made no difference here. Thus, Mr. Bancrofts objection to the 90% certainty factor does not raise a genuine dispute of material fact prohibiting the courts entry of summary judgment in Minnesota Lifes favor on his breach of contract claim concerning this clause of the ABPR.

In any event, as discussed above, the policy language plainly stated that Mr. Bancroft had to submit evidence that satisfies [Minnesota Life] of his life expectancy. (11/06/17 Marisseau Decl. ¶ 4, Ex. A at ML 0037.) Thus, Minnesota Lifes application of a 90% confidence or a 90% certainty factor was not a violation of the terms of the contract-particularly where Mr. Bancrofts own oncologist agreed that use of Mr. Bancrofts MIPI score for estimating his life expectancy, as Dr. Shapland did, was reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.)

In sum, the court grants Minnesota Lifes motion for summary judgment on Mr. Bancrofts claim for breach of contract concerning the ABPRs clause requiring evidence satisfying Minnesota Life that Mr. Bancrofts life expectancy is 24 months or less. The court denies Mr. Bancrofts motion for summary judgment with respect to the same clause.

2. Minnesota Lifes Right to Obtain an Independent Medical Examination and Mr. Bancrofts Right to Alternative Dispute Resolution

Mr. Bancroft also argues that Minnesota Life breached the ABPR by refus[ing] to conduct an independent medical verification or to allow for any sort of alternative dispute resolution prior to denying [Mr.] Bancrofts claim. (Plf. 2d MSJ at 14; see also Plf. Resp. at 18 (Minnesota Life denied [Mr.] Bancrofts claim prior to allowing him his right to present his arguments using alternative dispute resolution provided under the policy and as required by Washington law.).) Minnesota Life opposes Mr. Bancrofts motion and also argues that it is entitled to summary judgment on Mr. Bancrofts claim concerning this ABPR clause. (Def. MSJ at 15-16.)

The court begins with the language of the ABPR, which states in relevant part:

Do we retain the right to obtain independent medical verification?

Yes. We retain the right to have the insured medically examined at our own expense to verify the insureds medical condition.

(10/25/17 Bancroft Decl. ¶ 16, Ex. A at 12 (bolding in original).) The ABPR also states:

We reserve the right to ask for independent medical verification of a terminal condition. In the case of a difference of opinion, the insured has the right to mediation or binding arbitration conducted by a disinterested third party who has no ongoing relationship with either party.

(Id. ) Under the plain language of the policy, Minnesota Life had no obligation to conduct an independent medical verification or examination of Mr. Bancroft to verify his condition. (See id. ) The ABPR plainly states that Minnesota Life retain[s] or reserve[s] the right to ask for such a verification but that it was not required to do so. (Id. ) Because the policy language is clear and unambiguous, the court enforces it as written. See Quadrant Corp. , 110 P.3d at 737 (Most importantly, if the policy language is clear and unambiguous, we must enforce it as written; we may not modify it or create ambiguity where none exists.). Thus, to the extent that Mr. Bancroft asserts that he is entitled to summary judgment because Minnesota Life violated the ABPR by refus[ing] to conduct an independent medical verification (Plf. 2d MSJ at 18), the court denies Mr. Bancrofts motion and grants summary judgment to Minnesota Life on that issue.

Mr. Bancroft, however, also argues that Minnesota Life breached the ABPR by failing to allow him to engage in mediation or arbitration over the dispute between Dr. Cowan and Dr. Shapland concerning the length of his life expectancy. (Plf. 2d MSJ at 14-15.) Minnesota Life argues that Mr. Bancrofts right to mediation or arbitration arises only in the event that Minnesota Life seeks an independent medical verification and that doctors opinion is in conflict with the insureds doctors opinion. (Def. MSJ at 15.) Because it did not seek independent medical verification of Mr. Bancrofts condition, Minnesota Life argues that it had no obligation to engage in alternative dispute resolution with Mr. Bancroft. (See id. )

The court agrees with Mr. Bancroft that, under the plain language of the ABPR, Mr. Bancrofts right to alternative dispute resolution was not contingent upon Minnesota Lifes invocation of its right for an independent medical examination of Mr. Bancroft. In this case, Dr. Cowan and Dr. Shapland had a difference of opinion, and this difference alone triggered Mr. Bancrofts right to mediation or binding arbitration conducted by a disinterested third party under the ABPR. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. A at 12.) The problem with Mr. Bancrofts claim for breach of this provision, however, is that he never invoked his right or informed Minnesota Life that he would like to mediate or arbitrate. Indeed, his counsel admitted during oral argument that Mr. Bancroft never asked for mediation or any other kind of alternative dispute resolution. Instead, upon receiving Minnesota Lifes June 8, 2017, letter, Mr. Bancroft hired counsel, sent a 20-day IFCA notice dated June 22, 2017, to Minnesota Life (see 10/25/17 Frost Decl. (Dkt. # 22) ¶ 2, Ex. E), and filed suit on August 2, 2017 (see Compl.).

The court found no case law interpreting a similar alternative dispute resolution clause. Nevertheless, in Washington, an insurer cannot be expected to anticipate when or if an insured will make a claim for coverage; the insured must affirmatively inform the insurer that its participation is desired. Mut. of Enumclaw Ins. Co. v. USF Ins. Co. , 164 Wash.2d 411, 191 P.3d 866, 873 (2008) (quoting Unigard Ins. Co. v. Leven , 97 Wash.App. 417, 983 P.2d 1155, 1160 (1999), as amended (Apr. 24, 2000) ). The court, therefore, concludes that Mr. Bancroft was required to inform Minnesota Life that he wished to invoke his right to alternative dispute resolution under the ABPR. He did not do so. Therefore, Minnesota Life did not breach this provision of the ABPR by not engaging in either mediation or binding arbitration to resolve the dispute. Accordingly, the court grants Minnesota Lifes motion for summary judgment on this issue and denies Mr. Bancrofts motion.

In sum, the court grants Minnesota Lifes motion for summary judgment that it did not breach the ABPR by failing to conduct an independent medical verification or examination of Mr. Bancroft. The court further grants Minnesota Lifes motion for summary judgment on Mr. Bancrofts claim for breach of the alternative dispute resolution provision of the ABPR. The court denies Mr. Bancrofts motion on these two issues. Accordingly, there is no portion of Mr. Bancrofts breach of contract claim that remains for trial.

D. IFCA

Under IFCA, an insured who is unreasonably denied a claim for coverage or payment of benefits by an insurer may sue to recover actual damages and costs. Kabrich v. Allstate Prop. & Cas. Ins. Co. , 693 F. Appx 524, 526 (9th Cir. 2017) (citing RCW 48.30.015(1) & Perez-Crisantos v. State Farm Fire & Cas. Co. , 187 Wash.2d 669, 389 P.3d 476, 479 (2017) ). In addition, after finding that an insurer has acted unreasonably in denying a claim for coverage or payment of benefits or violated one of the Washington Administrative Code (WAC) sections listed in RCW 48.30.015(5), a court may increase the total damages award to an amount not to exceed three times the actual damages and award reasonable attorneys fees and actual and statutory litigation costs. RCW 48.30.015(2), (3). However, IFCA does not create an independent cause of action for regulatory violations in the absence of any unreasonable denial of coverage or benefits. Perez-Crisantos , 389 P.3d at 483.

The court has granted summary judgment in favor of Minnesota Life on all of Mr. Bancrofts breach of contract claims. See supra § III.C. Because there is no IFCA cause of action in the absence of an unreasonable denial of coverage or payment of benefits, Mr. Bancrofts IFCA claim cannot survive. See Perez-Crisantos , 389 P.3d at 483. The court, therefore, grants summary judgment to Minnesota Life on all aspects of Mr. Bancrofts IFCA claim and denies Mr. Bancrofts motion for summary judgment on the same claim.

E. Bad Faith

Claims for insurer bad faith are analyzed applying the same principles as any other tort: duty, breach of that duty, and damages proximately caused by any breach of duty. In order to establish bad faith, an insured is required to show the breach was unreasonable, frivolous, or unfounded. St. Paul Fire & Marine Ins. Co. v. Onvia, Inc. , 165 Wash.2d 122, 196 P.3d 664, 668 (2008) (citing Mutual of Enumclaw Ins. Co. v. Dan Paulson Constr., Inc. , 161 Wash.2d 903, 169 P.3d 1, 8 ( 2007) ).

The fact that the court has granted Minnesota Lifes motion for summary judgment on Mr. Bancrofts breach of contract claim does not necessarily eliminate his claim for bad faith with respect to Minnesota Lifes handling of Mr. Bancrofts claim under the ABPR. An insured can prove a claim for bad faith investigation of the insureds claim-as well as a violation of the CPA-regardless of whether the insurer was ultimately correct in determining that coverage did not exist. See Coventry Assocs. v. Am. States Ins. Co. , 136 Wash.2d 269, 961 P.2d 933, 937 (1998) (We hold an insured may maintain an action against its insurer for bad faith investigation of the insureds claim and violation of the CPA regardless of whether the insurer was ultimately correct in determining coverage did not exist.).

Mr. Bancroft argues that Minnesota Life committed the tort of bad faith because it failed to conduct a reasonable investigation into the facts of [his] claims. (Plf. 2d MSJ at 21.) Mr. Bancrofts bad faith claim focuses on the alleged inadequacy of Dr. Shaplands evaluation of the medical evidence and literature and the development of her opinion in June 2017, that Mr. Bancrofts life expectancy was greater than 24 months. (See id. at 21-22; Kelley Decl. ¶ 2, Ex. J at 7-9.) As described above, Mr. Kelley is not a doctor and has no medical expertise. (Kelley Decl. at 1.) Accordingly, the court excluded this portion of Mr. Kelleys opinion or testimony as inadmissible under Federal Rule of Evidence 702. See supra § III.A.

Moreover, Dr. Cowan testified that Mr. Bancrofts MIPI score was a reasonable basis for estimating his life expectancy and that a prognosis of either 29 or 37 months based on this score was reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.) Indeed, as the court has already indicated, there is no admissible medical testimony in the record that Dr. Shaplands use of Mr. Bancrofts MIPI score to determine his life expectancy was unreasonable. (See id. ; see also Grinblatt Decl. ¶¶ 6, 10; Shapland Dep. at 71:14-17.) As such, the court concludes that no reasonable juror could conclude that Dr. Shaplands opinion represents a bad faith investigation of Mr. Bancrofts claim or that Minnesota Lifes reliance upon her opinion was unreasonable, frivolous, or unfounded. See St. Paul Fire & Marine Ins. Co. , 196 P.3d at 668. Accordingly, the court grants Minnesota Lifes motion for summary judgment on this aspect of Mr. Bancrofts bad faith claim and likewise denies Mr. Bancrofts motion on the same issue.

The only other aspect of Mr. Bancrofts bad faith claim is his assertion that Minnesota Life failed to provide either mediation or binding arbitration to Mr. Bancroft in light of the dispute between Dr. Cowan and Dr. Shapland concerning Mr. Bancrofts life expectancy. (See Plf. 2d MSJ at 22 ([I]t was bad faith for Minnesota Life to take away Bancrofts rights under the [alternative dispute resolution] [p]rovision.); Kelley Decl. ¶ 2, Ex. J at 9-10.) As discussed above, however, Minnesota Life did not take away Mr. Bancrofts alternative dispute resolution rights. (See id. ); see supra § III.C. Rather, Mr. Bancroft failed to invoke those rights. See supra § III.C. Minnesota Life did not act in bad faith by failing to provide a type of coverage under the ABPR that Mr. Bancroft never claimed. Accordingly, the court grants Minnesota Lifes motion for summary judgment on this aspect of Mr. Bancrofts bad faith claim and denies Mr. Bancrofts motion. No portion of Mr. Bancrofts bad faith claim remains for trial.

F. CPA

Finally, Mr. Bancroft asserts that he is entitled to summary judgment on his CPA claim. (Plf. 2d MSJ at 15-20.) The CPA prohibits [u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. RCW 19.86.020. Minnesota Life opposes Mr. Bancrofts motion and seeks summary judgment in its favor. (Def. MSJ at 16-18.)

To establish a claim under the CPA, Mr. Bancroft must prove (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to his business or property; and (5) causation. See Ledcor Indus. (USA), Inc. v. Mut. of Enumclaw Ins. Co. , 150 Wash.App. 1, 206 P.3d 1255, 1262 (2009). Where a claim under the CPA is predicated on the denial of an insurance claim, the insured has a heavy burden to prove that the insurers conduct was unreasonable, frivolous, or unfounded. Overton v. Consol. Ins. Co. , 145 Wash.2d 417, 38 P.3d 322, 329 (2002).

The court has already determined that Minnesota Life did not breach the ABPR when it denied payment of benefits in June 2017, based on Dr. Shaplands opinion that Mr. Bancrofts life expectancy was greater than 24 months at that time. See supra § III.C.1. Indeed, Mr. Bancrofts doctor, Dr. Cowan, conceded in his deposition that basing a life expectancy prognosis on Mr. Bancrofts MIPI score, as Dr. Shapland did, was reasonable. (See Cowan Dep. at 61:19-62:2; 62:24-63:8.) The court has also determined that Minnesota Life did not breach the alternative dispute resolution clause of the ABPR because Mr. Bancroft never invoked this provision and thus Minnesota Life never had any obligation to perform under this clause. See supra § III.C.2. Thus, the court denies Mr. Bancrofts motion and enters summary judgment in Minnesota Lifes favor with respect to any CPA claim arising out Minnesota Lifes determination to deny the payment of accelerated life insurance benefits to Mr. Bancroft in June 2017, or any alleged breach of the ABPRs alternative dispute resolution clause.

Nevertheless, Mr. Bancroft also asserts that Minnesota Life violated various WAC regulations during its handling of his claim, and Mr. Bancroft argues that he is entitled to summary judgment on his CPA claim arising out of these WAC violations. (Plf. 2d MSJ at 16-20.) CPA claims alleging unfair insurance claims practices meet the public interest element because RCW 48.01.030 declares that the business of insurance is one affected by the public interest. Anderson v. State Farm Mut. Ins. Co. , 101 Wash.App. 323, 2 P.3d 1029, 1033 (2000). Further, a single violation of any WAC provision promulgated under RCW 48.30.010 is deemed to constitute unfair claims settlement practices. Id. at 1034 (citing WAC 284-30-300 through WAC 284-30-410 and Indus. Indem. Co. of the Nw. v. Kallevig , 114 Wash.2d 907, 792 P.2d 520, 530 (1990) ). In addition, a single violation of WAC 284-23-600 through WAC 284-23-730, known as Washingtons regulations of accelerated life insurance benefits, will be deemed to constitute an unfair claims settlement practice. WAC 284-23-610(1). Minnesota Life opposes Mr. Bancrofts motion and also seeks summary judgment in its favor regarding any CPA claim based on a violation of a WAC regulation. (Def. SMJ at 16-18.) The court considers each regulation in turn.

1. WAC 284-23-680

WAC 284-23-680 provides in pertinent part that [a]n insurer may not apply conditions on the payment of the accelerated benefits except those specified in the insureds policy or rider. WAC 284-23-680. Mr. Bancroft argues that Minnesota Life violated this provision by utilizing a 90% certainty standard when it determined that Mr. Bancrofts life expectancy is 24 months or less because this standard is not stated in the ABPR. (See Plf. 2d MSJ at 17; see also 4/19/18 Crowe Decl. ¶ 3, Ex. 22 (attaching claim journal entries from Minnesota Life for Mr. Bancrofts claim).) Instead, Mr. Bancroft asserts that she should have applied a more likely than not standard. (See Plf. 2d MSJ at 14.)

Even assuming that Minnesota Lifes application of a 90% certainty standard violated WAC 284-23-680, Mr. Bancrofts CPA claim based on this WAC provision nevertheless fails. As noted in the courts analysis of Mr. Bancrofts breach of contract claim, Dr. Shapland testified that her June 2017 opinion regarding Mr. Bancrofts life expectancy would have remained the same irrespective of whether she applied the 90% certainty standard or a more likely than not standard. See supra § III.C.1; (see also 5/7/18 Shapland Decl. ¶ 10.) There is no medical testimony to the contrary in the record. Thus, Mr. Bancroft cannot prove the final element of his CPA claim based on this WAC provision-that Minnesota Lifes violation of WAC 284-23-680 caused him any damage. See Ledcor Indus. (USA), Inc. , 206 P.3d at 1262.

Further, as discussed above, the language of the ABPR required Mr. Bancroft to provide evidence that satisfies [Minnesota Life]. (11/06/17 Marisseau Decl. ¶ 4, Ex. A at ML 0037.) Even assuming that Minnesota Life applied a 90% certainty standard in determining an insureds life expectancy, this standard was not in violation of WAC 284-23-680 because this condition was encompassed by the express language of the ABPR. Accordingly, the court denies Mr. Bancrofts motion for summary judgment and enters summary judgment on this claim in Minnesota Lifes favor.

2. WAC 284-23-730

WAC 284-23-730 states in pertinent part:

In the event the insureds health care provider and a health care provider appointed by the insurer disagree on whether a qualifying event has occurred, the opinion of the health care provider appointed by the insurer is not binding on the claimant. The parties shall attempt to resolve the matter promptly and amicably. The policy or rider providing the accelerated benefit shall provide that in case the disagreement is not so resolved, the claimant has the right to mediation or binding arbitration conducted by a disinterested third party who has no ongoing relationship with either party.

WAC 284-23-730. Similar to the courts analysis of Mr. Bancrofts breach of contract claim concerning the ABPRs alternative dispute resolution clause, the court also concludes that, under this WAC provision, the difference of opinion between Dr. Cowan and Dr. Shapland concerning Mr. Bancrofts life expectancy required the parties to attempt to resolve the matter promptly and amicably, and-failing any amicable resolution-gave Mr. Bancroft the right to mediation or binding arbitration. See id. ; see supra § III.C.2.

Minnesota Life argues that its June 8, 2017, letter to Mr. Bancroft undisputedly offered to amicably engage with [Mr. Bancroft] regarding its June 8 claim decision. (Def. MSJ at 17.) Minnesota Life also argues that Mr. Bancrofts decision to immediately initiate litigation reveals his own violation of the WAC regulation. (Id. ) As detailed above, Minnesota Life stressed in its June 8, 2017, letter that it was unable to determine, at this time, if Mr. Bancrofts life expectancy met the ABPRs requirements. (4/19/18 Crowe Decl. ¶ 3, Ex. 24.) The letter also assured Mr. Bancroft that it was not a permanent denial. (Id. ) It encouraged Mr. Bancroft to submit new information for its review and stated that it would gladly reassess his claim for accelerated life insurance benefits. (Id. ) Finally, the letter also encouraged Mr. Bancroft to contact Minnesota Lifes claims examiner with any questions and provided her direct extension. (Id. ) There is no dispute that in response to this letter, Mr. Bancroft did not attempt to contact Minnesota Life but rather, hired counsel and sent his mandatory IFCA pre-suit notice dated June 22, 2017, to Minnesota Life and Washington States Office of the Insurance Commissioner. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. E; Freeman v. State Farm Mut. Auto. Ins. Co. , No. C11-761RAJ, 2012 WL 2891167, at *4 (W.D. Wash. July 16, 2012) (The court holds that IFCAs pre-suit notice provision is mandatory, and that failure to satisfy it mandates dismissal of an IFCA claim.). Mr. Bancroft then filed suit on August 2, 2017. (See Compl.)

The WAC provision at issue requires that [t]he parties shall attempt to resolve the matter promptly and amicably. WAC 284-23-730. The provision is a mutual obligation placed on both the insurer and the insured. Based on the undisputed facts stated above, there is no evidence from which a jury could find that Minnesota Life violated its duty to attempt to resolve the matter promptly and amicably. Minnesota Lifes June 8, 2017, letter emphasized that its determination was not permanent and encouraged further contact and discussion with Mr. Bancroft. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24.) If anything, the undisputed facts indicate that it was Mr. Bancroft who failed to comply with his obligations under this WAC provision and who rushed to suit. Further, as discussed above, although the WAC provides that in the case the disagreement is not [promptly and amicably] resolved, the claimant has the right to mediation or binding arbitration, WAC 284-23-730, Mr. Bancroft never invoked this right, see supra § III.C.2. Accordingly, the court denies Mr. Bancrofts motion for summary judgment on this issue and grants summary judgment to Minnesota Life instead.

3. WAC 284-30-330(1)

WAC 284-30-330(1) provides that [m]isrepresenting pertinent facts or insurance policy provisions is defined as [an] unfair method[ ] of competition and [an] unfair or deceptive act[ ] or practice[ ] ... specifically applicable to the settlement of claims. WAC 284-30-330(1). Mr. Bancroft contends that Minnesota Life misrepresent[ed] pertinent facts and misrepresent[ed] policy provisions by stating in its June 8, 2017, letter to Mr. Bancroft that the medical information does not support a life expectancy of 24 months or less. (Plf. 2d MSJ at 18 (quoting WAC 284-30-330(1) ).) Without citation to the record, Mr. Bancroft argues that this is not true and that [t]here is medical information which fully supports such a life expectancy prognosis. (Id. )

Mr. Bancrofts lack of citation to the record is sufficient in itself to deny his motion for summary judgment. Indeed, he cites to no medical expert testimony at all in support of his argument concerning Minnesota Lifes statement. Nevertheless, Mr. Bancrofts argument appears to be based on Mr. Kelleys expert opinion that Minnesota Life misrepresented a critical fact as the basis for denying [Mr.] Bancrofts claim. (See Kelley Decl. ¶ 2, Ex. J at 11.) As discussed above, Mr. Kelleys expert opinion is not admissible. See supra § III.A. Thus, there is no admissible expert testimony to underpin Mr. Bancrofts argument concerning the medical information at issue here.

To the contrary, all of the medical testimony in this case supports the reasonableness of Dr. Shaplands analysis. (Cowan Dep. at 13:3-12, 15:1-16:1, 61:19-63:8; Grinblatt Decl. ¶¶ 6, 10.) Accordingly, no reasonable juror could conclude that Minnesota Life violated WAC 284-30-330(1) based on the statement at issue. The court, therefore, denies Mr. Bancrofts motion and grants summary judgment to Minnesota Life on this issue.

Mr. Bancroft also argues that Minnesota Life violated WAC 284-30-330(1) because its June 8, 2017, letter stated that we are unable to determine, at this time, if your life expectancy will be less than 24 months, which the policy requires. (See Plf. 2d MSJ at 18-19; see also 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) Mr. Bancroft argues that this statement violates WAC 284-30-330(1) because the ABPR defines a terminal condition as a condition ... which directly results in a life expectancy of twenty-four months or less . (11/06/17 Marisseau Decl. ¶ 4, Ex. A at ML 0037 (bolding added).) Minnesota Life admits that this incorrect statement of the policy language appeared in its June 8, 2017, letter. (Def. MSJ at 18.) However, Mr. Bancroft ignores the fact that the letter begins with a statement of the correct policy language and then restates the correct policy language two more times. (See 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) No reasonable juror could conclude that Minnesota Life had breached WAC 284-30-330(1) by [m]isrepresenting ... insurance policy provisions on the basis of the single error Mr. Bancroft cites when that error is read against the letter as a whole, which states the correct policy language three times. Moreover, Mr. Bancroft provides no evidence that he was ever misled by this one incorrect statement of policy language. Thus, he fails to prove the causation element of his CPA claim. See Ledcor Indus. (USA), Inc. , 206 P.3d at 1262. Accordingly, the court denies Mr. Bancrofts motion for summary judgment on this issue and enters summary judgment in favor of Minnesota Life on the same issue.

4. WAC 284-30-330(4)

WAC 284-30-330(4) provides that [r]efusing to pay claims without conducting a reasonable investigation is defined as [an] unfair method[ ] of competition and [an] unfair or deceptive act[ ] or practice[ ] ... specifically applicable to the settlement of claims. WAC 284-30-330(4). Mr. Bancroft argues that Minnesota Life violated this WAC provision based on his criticism of Dr. Shaplands analysis of Dr. Cowans opinion, Dr. Shaplands review of the medical literature, and her conclusion that his life expectancy was greater than 24 months in June 2017. (Plf. 2d MSJ at 19.) For all the same reasons that the court denied Mr. Bancrofts claim for bad faith claim investigation, the court also denies Mr. Bancrofts CPA claim under WAC 284-30-330(4) and enters summary judgment in Minnesota Lifes favor. See supra § III.E.

5. WAC 284-30-380(1)

Finally, Mr. Bancroft brings a CPA claim based on Minnesota Lifes alleged violation of WAC 284-30-380(1). (Plf. 2d MSJ at 19-20.) WAC 284-30-380(1) provides that [t]he insurer must not deny a claim on the grounds of a specific policy provision, condition, or exclusion unless reference to the specific provision, condition, or exclusion is included in the denial. WAC 284-30-380(1). Mr. Bancroft argues that Minnesota Life violates this provision because it applied a 90% certainty in assessing an insureds life expectancy but does not mention this standard in the ABPR or in its June 8, 2017, letter. (Plf. 2d MSJ at 19-20.) For the same reasons that the court denied Mr. Bancrofts motion for summary judgment on his CPA claim based on WAC 284-23-680, the court does so here as well. See supra § III.F.1, § III.B.1. Mr. Bancroft cannot establish the causation element of his CPA claim because Dr. Shapland testified that her June 2017, opinion concerning Mr. Bancrofts life expectancy would have been the same whether she applied the 90% certainty standard or the more likely than not standard Mr. Bancroft advocates. (See 5/7/18 Shapland Decl. ¶ 10.) Accordingly, the court concludes that he cannot prove the causation element of his CPA claim. For this reason, the court denies Mr. Bancrofts motion and enters summary judgment in Minnesota Lifes favor instead.

In sum, the court denies Mr. Bancrofts motion for summary judgment on all aspects of his CPA claim and enters summary judgment in favor of Minnesota Life on those same claims.

G. Covenant of Good Faith and Fair Dealing, Negligence, and Declaratory Relief

Mr. Bancroft asks the court for summary judgment concerning liability on all of his claims. (Plf. 2d MSJ at 28.) Mr. Bancroft, however, provides no argument on his claims for breach of the covenant of good faith and fair dealing, negligence, and declaratory relief. (See generally id. ; see also Compl. ¶¶ 49-54, 68-71.) Minnesota Life asserts that it is entitled to summary judgment on these claims for the same reasons [Mr. Bancrofts] IFCA, CPA[,] and bad faith claims fail. (Def. MSJ at 24.) Mr. Bancroft provides no response to this argument. (See generally Plf. Reply; Plf. Resp.) Having reviewed these additional claims and the courts grounds for granting Minnesota Life summary judgment on Mr. Bancrofts IFCA, CPA, and bad faith claims, the court agrees with Minnesota Life and grants summary judgment in its favor on Mr. Bancrofts remaining claims.

IV. CONCLUSION

Based on the foregoing analysis, the court DENIES Mr. Bancrofts motion for partial summary judgment (Dkt. # 29) and GRANTS summary judgment on Minnesota Lifes cross motion with respect to all of Mr. Bancrofts claims (Dkt. # 35).

Mr. Bancroft also provides a copy of the insurance policy and ABPR in his declaration. (10/25/17 Bancroft Decl. ¶ 16, Ex. A.)

VR-CAP is a combined form of chemotherapy comprised of rituximab, cyclophosphamide, doxorubicin, vincristine, and prednisone. (11/13/17 Shapland Decl. (Dkt # 22) ¶ 13.)

On the form, the words-marked change-are underlined. (10/25/17 Bancroft Decl. ¶ 11, Ex. C at 6.)

The MIPI score was first published as a prognostic index in 2008 and was validated in a subsequent 2014 study. (See 11/6/17 Marisseau Decl. (Dkt # 16) ¶ 19, Ex. I; see also 11/13/17 Shapland Decl. ¶ 8; 5/11/18 Crowe Decl. (Dkt. # 40) ¶ 2 (attaching excerpts of Dr. Cowans deposition at Dkt. # 40-1) (Cowan Dep.) at 13:3-12, 15:1-16:1.) Excerpts of Dr. Cowans deposition can also be found in the May 7, 2018, declaration of Medora A Marisseau. (5/7/18 Marisseau Decl. (Dkt. # 36) ¶ 7, Ex. 3.) Irrespective of where excerpts of Dr. Cowans deposition appear in the record, the court will simply reference the Cowan Dep.

The Attending Physicians Statement included the following request: * * * Please Attach Medical Records * * * . (Id. ; see also id. at 1 (PLEASE NOTE, WE ARE REQUESTING THAT COPIES OF YOUR MEDICAL RECORDS BE SUBMITTED WITH THIS FORM BY YOUR PHYSICIAN TO ASSIST IN EXPEDITING OUR REVIEW. ).) Dr. Cowan did not attach any medical records. (See id. ) However, Mr. Bancroft executed an authorization for any provider of health care, physician, medical practitioner, [or] hospital ... which has any medical ... records or knowledge ... to give all such information it has to Minnesota Life ... or its authorized representative. (4/19/18 Crowe Decl. (Dkt. # 30) ¶ 3, Ex. 25 at 5.)

The use of the MIPI score to determine overall survival was confirmed in a later 2014 study. (11/13/17 Shapland Decl. ¶ 12.) In the 2014 study, a younger group with high-risk MIPI scores had a median overall survival of 46 months. (Id. ) The elderly group with a high-risk MIPI score had a median overall survival of 31 months. (Id. ) The median overall survival for the entire group was 34 months. (Id. )

Q: Well, would you agree that a reasonable conclusion would also be that prognosis of 29 months, consistent with the MIPI score, would be accurate for Mr. Bancroft?

A: It could be-

Q: Okay.

A: -for a patient.

Q: Well, for Mr. Bancroft.

A: For Mr. Bancroft, it could be.

* * * * * * *

Q: Okay. So one reasonable interpretation was your-

A: Yes.

Q: -24 months?

A: Yes.

Q: And another reasonable interpretation was the MIPI prognosis, 29-

A: Sure.

Q: -or 37?

A: You could say that.

(Cowan Dep. at 61:19-62:2; 62:24-63:8.)

Mr. Bancroft did not challenge the admissibility of Dr. Grinblatts opinion testimony. (See generally Plf. Reply (Dkt. # 39); Plf. Resp. (Dkt. # 46).)

Minnesota Lifes June 8, 2017, letter states that Mr. Bancroft was diagnosed in January 2017. (4/19/18 Crowe Decl. ¶ 3, Ex. 24; 10/25/17 Bancroft Decl. ¶ 16, Ex. D.) There is no dispute that Mr. Bancrofts last diagnostic test occurred on January 30, 2017. (Hu Decl. ¶ 5.) However, Dr. Hu did not announce her diagnosis until February 1, 2017. (10/25/17 Bancroft Decl. ¶¶ 5-6; Hu Decl. ¶ 6; Plf. 2d MSJ at 4 (After having tests conducted in January, on February 1, 2017, [Mr.] Bancroft was informed by Dr.... Hu that he had Stage IV Mantle Cell Lymohoma.).) Indeed, in his first motion for summary judgment, Mr. Bancroft states that he was diagnosed on February 1, 2017. (Plf. 1st MSJ at 4 (On February 1, 2017, [Mr.] Bancroft returned ... for the results of the biopsy and PET/CT.... At that time, Dr. Hu diagnosed him with Stage IV Mantle Cell Lymphoma and recommended immediate treatment.); see also Compl. ¶ 16 (On or around February 1, 2017, [Mr.] Bancroft returned to the Poly Clinic for the results of the biopsy and PET/CT. At that time, Dr. Hu diagnosed him with stage IV mantle cell lymphoma and recommended immediate treatment.).)

During oral argument, Mr. Bancrofts counsel conceded that Mr. Bancroft did not request either mediation or binding arbitration following his receipt of Minnesota Lifes June 8, 2017, letter.

Mr. Bancroft filed his motion for summary judgment on April 19, 2018. (See Plf. 2d MSJ.) Minnesota Life filed its response and cross motion on May 7, 2018. (See Def. MSJ.) Mr. Bancroft filed a reply memorandum to his own motion for summary judgment on May 11, 2018. (See Plf. Reply.) On May 29, 2018, Mr. Bancroft filed an additional response memorandum to Minnesota Lifes cross motion. (See Plf. Resp.) On June 1, 2018, Minnesota Life filed a reply memorandum in support of its cross motion. (See Def. Reply.) Finally, on June 4, 2018, Mr. Bancroft filed his surreply. (See Surreply.)

Neither party asserts that the language of the ABPR is ambiguous. (See Def. MSJ at 11 (stating that Mr. Bancroft concedes the ABPR is unambiguous); Plf. 2d MSJ at 13 (The ABPR is clear.); Plf. Resp. at 14 (The ABPR is clear.); see also Plf. Reply at 2, 5 (arguing that, to the extent the court deems portions of the ABPR to be ambiguous, those portions should be interpreted in Mr. Bancrofts favor, but not arguing that the ABPR is ambiguous).) In Washington, insurance policies are construed as contracts. Quadrant Corp. v. Am. States Ins. Co. , 154 Wash.2d 165, 110 P.3d 733, 737 (2005). A court must consider an insurance policy as a whole and give it a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance. Id. (internal quotation marks omitted) (quoting Weyerhaeuser Co. v. Commercial Union Ins. Co. , 142 Wash.2d 654, 15 P.3d 115, 122 (2000) ). If the language of an insurance policy is clear and unambiguous, the court must enforce the policy as written; a court may not modify it or create ambiguity where none exists. Id. Here, the court concludes that there is no ambiguity and thus enforces the policy as written.

The policy defines the terms we and us as Minnesota Life. (4/19/18 Crowe Decl. ¶ 3, Ex. 19 at ML 0031.)

Dr. Shapland also testifies that she believes that both her opinion-that Mr. Bancroft had a life expectancy of greater of than 24 months at the time he initially submitted his claim-and Dr. Cowans prognosis-that Mr. Bancroft had a life expectancy of 24 months or less-were reasonable. (Shapland Dep. at 71:14-17.) This fact, however, does not support the notion that Minnesota Life breached the contract by denying Mr. Bancrofts claim due to the specific policy language at issue here. Just because Dr. Shapland did not find Dr. Cowans opinion to be unreasonable does not mean that Mr. Bancroft fulfilled the ABPRs requirement of giv[ing] evidence that satisfies [Minnesota Life] that the insureds life expectancy, because of sickness or accident, is twenty-four months or less. (See 11/06/17 Marisseau Decl. ¶ 4, Ex. A.) This is particularly so because Minnesota Life explained to Mr. Bancroft that Dr. Cowans opinion-although perhaps not unreasonable-was not supported by the medical literature. (See 4/19/18 Crowe Decl. ¶ 3, Ex. 24 (attaching the June 8, 2017, letter from Minnesota Life to Mr. Bancroft, stating: Your doctor did indicate on the claim form that your condition was terminal and provided a life expectancy of 24 months. Per medical literature, median survival for your diagnosis is 37 months.).)

Mr. Bancroft admitted in his complaint that Dr. Hu diagnosed him when he returned to the clinic for his biopsy and PET/CT results. (See Compl. ¶ 16 (On or around February 1, 2017, [Mr.] Bancroft returned to the Poly Clinic for the results of the biopsy and PET/CT. At that time, Dr. Hu diagnosed him with stage IV mantle cell lymphoma and recommended immediate treatment.) Factual assertions in pleadings, unless amended, are considered judicial admissions binding on the party who made them. Am. Title Ins. Co. v. Lacelaw Corp. , 861 F.2d 224, 226 (9th Cir. 1988). Such admissions, which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact, are binding on both the parties and the court. United States v. Davis , 332 F.3d 1163, 1168 (9th Cir. 2003) (quoting Lacelaw , 861 F.2d at 226 ). In addition, Mr. Bancroft testified that he returned to the Poly Clinic for the results of the biopsy and PET/CT on February 1, 2017. (10/25/17 Bancroft Decl. ¶ 5.) Thus, there is no genuine dispute that Mr. Bancroft was diagnosed on February 1, 2017.

Even if the court assumed that Dr. Hu diagnosed Mr. Bancroft on January 30, 2017-the date of his last medical test in January-the courts analysis remains unchanged because on June 6, 2017, Mr. Bancroft would still have more than twenty-four months or less in life expectancy. See supra n.9 & n.15.

Judges are not like pigs, hunting for truffles buried in briefs. Christian Legal Soc. Chapter of Univ. of California v. Wu , 626 F.3d 483, 488 (9th Cir. 2010) (internal quotation marks omitted) (quoting Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994) and United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) (per curiam) ) (alteration omitted) ).