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Michael Malloian v. Infinity Insurance Company

November 21, 2011

MICHAEL MALLOIAN,
PLAINTIFF,
v.
INFINITY INSURANCE COMPANY, AN INDIANA CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT [Docket No. 21]

This matter comes before the Court on Defendant's motion for summary judgment. Plaintiff has filed an opposition to the motion, and Defendant has filed a reply. For the reasons discussed below, the Court grants in part and denies in part Defendant's motion.

I. BACKGROUND*fn1

Plaintiff Michael Malloian is a former employee of Defendant Infinity Insurance Company. Plaintiff began working for Defendant in November 2000 as an Investigator Level I in the Special Investigations Unit ("SIU"). The purpose of the SIU is "to detect and deter insurance fraud that is known to exist in the industry." (Mem. of P. & A. in Supp. of Mot. at 2.) Plaintiff was later promoted to SIU Investigator Level II, and in May 2002 he became an SIU Manager.

In late 2008, Defendant began implementing changes to its SIU division. For instance, Defendant began using a new computer program to identify fraud indicators in Defendant's claims. Defendant also began implementing a "pure investigation" model for SIU. This model required SIU investigators to focus exclusively on investigating claims rather than adjusting claims. Defendant also eliminated the use of outside counsel to conduct Examinations Under Oath, leaving that task to the SIU investigators.

While these changes were being implemented, Plaintiff also experienced a change in his immediate supervisor: Joe Descher. Prior to becoming Plaintiff's supervisor, Mr. Descher was responsible for the SIU Eastern Region. In addition to his supervisory responsibilities over Plaintiff, Mr. Descher was now responsible for the entire Western Region, and was also the Assistant Vice President of SIU.

In July 2009, Plaintiff attended a meeting with Descher, Bill Dibble, Senior Vice President of Claims, and Tony Smarelli, Vice President of Claims. Plaintiff claims that during that meeting, Descher stated he "wanted the West Coast to focus more on increasing the number of denials and withdrawals of claims." (Id. at 5.) Plaintiff responded that they should treat the claims on a "case by case" basis. (Id.) Subsequently, Descher told the SIU managers to set goals and objectives for denying claims. (Id.)

In May 2010, Descher generated a set of objectives and asked Plaintiff to distribute them to all investigators in his unit. (Id.) Those objectives contained measurements of denied and withdrawn claims for each individual investigator. (Id.) Plaintiff refers to these measurements as "impact ratios." (Id.) According to these measurements, investigators were expected to deny or have withdrawals on fifty percent or more of claims investigated. (Id.)

In the months preceding the issuance of these objectives, Plaintiff had two additional incidents with Descher. The first occurred in January 2010, when Plaintiff requested that one of his investigators be allowed to work overtime. Descher refused that request. The second incident occurred in April 2010. That incident involved Descher's use of the term "nigger" to describe an African American SIU investigator. Plaintiff objected to Descher's use of that term.

On June 3, 2010, Defendant, through Smarelli, terminated Plaintiff's employment.

Plaintiff filed the present case on August 11, 2010, in San Diego Superior Court. In the Complaint, Plaintiff alleges claims for wrongful termination and retaliation. Defendant removed the case to this Court on September 10, 2010.

II. DISCUSSION

Defendant moves for summary judgment, or in the alternative, partial summary judgment. It asserts there are no genuine issues of material fact on any of Plaintiff's claims, and it is entitled to judgment as a matter of law. Plaintiff disputes that there are no genuine ...


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