No. 21-2443 ___________________________

Paul I. Wills

Plaintiff - Appellee

v.

Encompass Insurance Company; Encompass Indemnity Company

Defendants - Appellants

Allstate Insurance Company

Defendant ____________

Appeal from United States District Court for the Western District of Arkansas - Ft. Smith ____________

Submitted: January 13, 2022 Filed: September 6, 2022 ____________ Before COLLOTON, KELLY, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge.

After being hit by an under-insured motorist, Dr. Paul Wills experienced worsening symptoms from his Parkinson’s disease. His condition eventually deteriorated to the point that he could no longer work as a doctor. Wills sued Encompass Insurance for $500,000, the maximum available under his automobile policy. The state trial court granted summary judgment to Wills, concluding that Encompass failed to refute that Wills lost at least $500,000 in earning capacity because of the accident. On removal, a federal district court held that it was unable to vacate that judgment. We reverse and remand.

I.

Wills worked as an ear, nose, and throat doctor in Hot Springs, Arkansas. Despite being diagnosed with Stage 1 Parkinson’s disease in 2006, Wills was able to manage his symptoms and continue working. In 2015, Wills was rear-ended by an under-insured motorist. After the accident, Wills’s Parkinson’s symptoms worsened to the point that he had to retire, reducing his earning capacity by $250,000–$400,000 per year. At the time of the accident, Wills was 72 years old and planned to work for at least three more years.

Wills sued the other driver and received the maximum amount under their insurance policy—$50,000. He then contacted his insurer, Encompass, to request the $500,000 maximum under his policy. Encompass denied his claim, arguing that his worsening symptoms were due to the natural progression of his Parkinson’s disease, not the car accident.

Wills sued Encompass in Arkansas state court, seeking $500,000 in damages under his insurance policy, plus punitive damages for Encompass’s bad faith. A few months into the litigation, Wills moved for summary judgment on two issues: (1) that the accident aggravated his pre-existing Parkinson’s “and caused other injuries,” which resulted in a loss of earning capacity, and (2) that his lost earning capacity was at least $500,000. Wills submitted an affidavit from his pain management doctor, Dr. Swicegood, in support of his motion. Swicegood testified that Wills suffered “an unexplained acceleration in his Parkinson’s symptoms” after being rear- ended. He also said that Wills experienced other problems following the car

-2- accident, such as an “underlying lumbar disc disease with probable multi-level nerve root compressive problems.”

Encompass filed a response opposing summary judgment, which included the affidavit of expert witness Dr. Steven Arkin. Arkin testified that the accident didn’t have “any effect on the course of Dr. Wills[’s] Parkinson’s disease.” He also noted that “[i]f there had been an abrupt change in the course of [Wills’s] Parkinson’s disease, [he] would expect continued worsening of symptoms rather than the dramatic improvement . . . clearly documented by the neurologists taking care of him.”

Despite this conflicting expert testimony, the Arkansas trial court granted Wills’s motion for summary judgment on his contract claim.1 T