298 F.Supp.2d 149 (2004) | Cited 4 times | D. Maine | January 12, 2004


Plaintiff Lillian Curtin brings this suit against Unum Life InsuranceCompany of America and UnumProvident Corporation (together "Defendants"or "Unum") under the Employee Retirement Income Security Act ("ERISA"),29 U.S.C. § 1132(a)(1)(B), alleging that Defendants have unlawfullywithheld benefits to which she is entitled under an accidental death anddismemberment policy. Presently before the Court are: Plaintiff's Motionfor Summary Judgment (Docket #8), Defendants' Cross-Motion for SummaryJudgment (Docket #15), Defendants' Motion for Continuance Pursuant toFederal Rule of Civil Procedure 56(f) (Docket #17), and Defendants'motions to strike based on Plaintiffs non-compliance with LocalRule 56 (Docket #23) and Local Rule 7(e) (Docket #29). For the reasonsset forth below, Plaintiff's Motion for SummaryPage 2Judgment is GRANTED, Defendants' Cross-Motion for Summary Judgmentis DENIED, Defendants' Motion for Continuance Pursuant to Federal Rule ofCivil Procedure 56(f) is declared MOOT, Defendant's "Motion to StrikePlaintiff's Responses to Unum Life's Opposing Statement of Material Factsand Plaintiff's Responses to the Defendants' Statement of AdditionalFacts" is GRANTED, and "Defendants' Motion to Strike Pleading Entitled`Plaintiff's Objection to Defendants' Motion to Strike and to theIntroduction of New Issues'" is declared MOOT.

I. Motions to Strike

Before addressing the merits of the motions for summary judgment, theCourt must resolve the motions to strike filed in connection with thestatements of material fact required by Local Rule 56. A flurry offilings followed the summary judgment motions now before the Court,largely due to Plaintiff's counsel's complete disregard of the localrules of this Court, and his apparent inability to present legalarguments in a proper manner. The exchange began typically enough:Plaintiff filed a Statement of Material Facts (Docket #9) and Unum LifeInsurance Company of America filed a response to Plaintiff's Statement ofMaterial Facts and a Statement of Additional Material Facts (Docket#16).1 Plaintiff then filed a document titled "Plaintiff's Responseto Defendants' Answers to Plaintiff's Statement of Material Facts and toDefendants' Own Statement of Material Facts" (Docket #21), which wasfollowed by Defendants' "Motion to Strike Plaintiff's Responses to UnumLife's Opposing Statement of Material Facts andPage 3Plaintiff's Responses to the Defendants' Statement of AdditionalFacts" (Docket #23), to which Plaintiff responded with a document titled"Plaintiff's Objection to Defendants' Motion to Strike and to theIntroduction of New Issues" (Docket #27). Defendants responded with"Defendants' Reply to Plaintiff's Objection to Defendant's Motion toStrike and to Introduction of New Issues" (Docket #28) and "Defendants'Motion to Strike Pleading Entitled `Plaintiff's Objection to Defendants'Motion to Strike and to the Introduction of New Issues'" (Docket#29),2 which was followed by a letter from Plaintiffs counsel to theClerk of this Court (Docket #31), finally recognizing that the exchangeof motions "appears to be getting ridiculous" and stating that he"consider[s] it unnecessary to file any further arguments."

The parties' arguments and their resolution are as follows. Defendantshave moved to strike Plaintiff's responses to Defendants' answers toPlaintiff's Statement of Material Fact on the grounds that theseadditional responses are not allowed under Local Rule 56 (Docket #23).Local Rule 56(d) requires that a reply statement of material facts "shallbe limited to any additional facts submitted by the opposing party." D.Me. Loc. R. 56(d). Thus, Defendants are correct that Local Rule 56 doesnot allow Plaintiff to submit responses to Defendants' responses toPlaintiff's statement of material facts. Accordingly, Plaintiff'sresponses to Defendants' answers to Plaintiff's statements of materialfact (contained in Docket # 21) are STRICKEN, and the portion ofDefendants' motion to strike that addresses Plaintiff's response toDefendant's response to Plaintiff's statement of material facts isGRANTED.Page 4

Defendants also argue in Docket #23 that thirty-four of Plaintiff'sresponses to Defendant's Statement of Additional Material Facts should bestricken for failure to comply with Local Rule 56 based on improperargumentation and lack of record citations in Plaintiff's responses. Tothe extent that Plaintiff's responses to Defendants' Statement ofAdditional Material Facts contained in Docket #21 fail to comply withLocal Rule 56(d), they are STRICKEN, and Defendants' motion to strikePlaintiff's responses to Defendant's Statement of Additional MaterialFacts is GRANTED.

Because Defendants' motions are granted, "Defendants' Reply toPlaintiff's Objection to Defendant's Motion to Strike and to Introductionof New Issues" (Docket #28) and "Defendants' Motion to Strike PleadingEntitled `Plaintiff's Objection to Defendants' Motion to Strike and tothe Introduction of New Issues'" (Docket # 29) are MOOT.3

II. Cross-Motions for Summary Judgment

A. Standard of Review

In ERISA cases where the decision is to be made by the court basedsolely on the administrative record, summary judgment is "merely amechanism for tendering the issue." Liston v. UNUM Corp. OfficerSeverance Plan, 330 F.3d 19 (1st Cir. 2003). In the case at hand,the dispute can and should be resolved on the basis of the administrativerecord. In cases where the administrator's decision is reviewed under an"arbitrary and capricious" standard of review, the First Circuit has heldthat "at least some very goodPage 5reason is needed to overcome the strong presumption that the recordon review is limited to the record before the administrator."Liston, 330 F.3d at 23. Likewise, "[e]ven where denovo review exists under ERISA, it is at least doubtful that courtsshould be in any hurry to consider evidence or claims not presented tothe plan administrator." Id. at 24. Although a claim ofcorruption is the type of case in which it may be appropriate to considerevidence outside the administrative record, see Kolling v. Am. PowerConversion Corp., 347 F.3d 11, 14 n.6 (1st Cir. 2003), this case isreadily resolved in Plaintiff's favor without considering her claims ofcorruption, even if she has not waived her arguments in thatrespect.4

Following Firestone Tire & Rubber Co. v. Bruch,489 U.S. 101 (1989), the denial of benefits by an administrator of aplan covered by ERISA is reviewed by courts using an "arbitrary andcapricious" standard only if the benefit plan gives the administrator orfiduciary discretionary authority to determine eligibility for benefitsor to construe the terms of the plan. If the terms of the plan do notgive the administrator or fiduciary discretionary authority to determineeligibility or construe the terms of the plan, judicial review proceedsunder a de novo standard. See id. at 115. The partiesare in agreement that the terms of the plan in question do not afford theadministrator the discretionary authority necessary to avoid denovo review by this Court. Thus, the question before this Court iswhether the decision to deny Ms. Curtin's claim was correct. SeePerry v. Simplicity Engineering, 900 F.2d 963 (6th Cir. 1990).Page 6

B. Background

1. Insurance Policy and Pertinent Provisions

On November 18, 1997, Lillian Curtin sustained serious injuries in anautomobile accident. At the time of the accident, Ms. Curtin was insuredunder an accidental death and dismemberment policy administered by UnumLife Insurance Company (the "Policy"). Under the terms of the Policy, Ms.Curtin would receive a one-time lump sum payment of $100,000 if shesustained a "Permanent Total Disability" while insured. The Policyprovides: "Permanent Total Disability" means that an Insured Employee is unable to engage in any occupation or employment for which he or she is fitted by reason of education, training, or experience for the rest of his or her life. Permanent Total Disability must have existed for twelve consecutive months and be determined by a competent medical authority to be permanent, total and continuous.The benefit is to be paid in situations where: (1) an insuredindividual sustains Permanent Total Disability because of a coveredinjury within 180 days after the date of accident; and (2) the disabilitycontinues for twelve consecutive months.

Ms. Curtin contends that she meets these requirements, and is thereforeentitled to the lump sum payment. Defendants contend that Ms. Curtin hasnot sustained a Permanent Total Disability and is not entitled to thelump sum payment. A review of the pertinent facts follows.

2. Medical Information in the Administrative Record

The injuries sustained by Ms. Curtin in the automobile accidentincluded numerous broken bones including fractures in both legs, afractured pelvis, a transected aorta, and other major internal organdamage. As a result of the accident, Ms. Curtin underwent an extensiveseries of surgeries and was hospitalized for a month, followed byPage 7almost three months at an inpatient rehabilitation center. She wasdischarged on March 9, 1998, to receive physical therapy at her home.

The medical record following her discharge from the rehabilitationcenter consists of the records of Dr. Leo Troy, an orthopedic surgeon andDr. Ross Reel, Ms. Curtin's primary care physician. While a doctor and anurse at Unum reviewed Ms. Curtin's medical records and made reports thatconstitute a part of the record, no independent medical examination wasrequested by Defendants.

On March 25, 1999, Ms. Curtin visited both Dr. Reel and Dr. Troy. Dr.Reel performed a physical examination of Ms. Curtin. Dr. Reel noted thatshe was "here for followup; doing well except for weight gain; will seenutritionist." He diagnosed Ms. Curtin with hypertension, hypothyroidism,esophagitis, obesity, and hypocholesterolemia. Dr. Troy saw Ms. Curtinfor fracture follow-up; he noted that Ms. Curtin experienced pain andlimitation of movement due to her hip replacement surgery and heterotopicbone formation. Because Ms. Curtin was concerned that it was awkward forher to walk, Ms. Curtin and Dr. Troy discussed exercise options.Throughout 1999, Ms. Curtin continued to see Dr. Reel for cholesterol andthyroid problems.

On March 1, 2000, Ms. Curtin met with Dr. Reel for another physicalexamination. Dr. Reel noted that Ms. Curtin had "no complaints," that she"does a lot of walking, does all the housework," and that she lived withher mother, who was in the early stages of Alzheimer's disease. Dr. Reelstated that Ms. Curtin was overweight, and ordered a sleep study to ruleout sleep apnea.

On April 20, 2000, Ms. Curtin visited Dr. Troy for pain in her lowerback. Dr. Troy prescribed a shoe lift to resolve a leg length inequalityresulting from the accident.Page 8Ms. Curtin returned to Dr. Troy on October 26, 2000 for a follow-upvisit. Dr. Troy noted that she was still in pain, but that she was "doingotherwise reasonably well with her shoe lift. She is ambulating with caneassist and will continue with rehabilitation exercises andanti-inflammatory medication and return for evaluation here in sixmonths."

On April 10, 2001, Ms. Curtin met with Dr. Reel regarding severe painin her back, and Dr. Reel adjusted Ms. Curtin's prescription regimen. OnMay 31, 2001, Ms. Curtin visited Dr. Reel for a physical examination; Dr.Reel's notes of the visit indicate that Ms. Curtin had "no complaints."

On June 21, 2001, Ms. Curtin met with Dr. Troy for an orthopedicfollowup visit. Dr. Troy's notes state: "She clearly is not employable atthis time in any occupation except for something very sedentary." Henoted that Ms. Curtin would "continue with conservative care and returnfor evaluation in six months." On the same date, Dr. Troy completed aUnum form in connection with Ms. Curtin's claim for disability benefits.On the insurance form, Dr. Troy indicated that Ms. Curtin should notstand for more than 20 minutes or walk for more than 10 minutes, and thatshe must use a cane. He stated that her prognosis was poor and that shehad achieved maximum recovery. In a section of the form that asked thephysician to indicate how many hours in an eight-hour work day thepatient could perform each of four listed levels of activity (sedentary,light, medium and/or heavy), Dr. Troy placed a checkmark (rather than anumeral) next to "Sedentary Activity."Page 9

3. Defendants' Review of Plaintiff's Claim

Defendants received Ms. Curtin's claim on April 16, 2001. On September9, 2001, Virginia Reynolds, a Unum nurse, reviewed Dr. Troy's officenotes and determined that the restrictions and limitations listed for Ms.Curtin did "not appear consistent with [her] stated activities." NurseReynolds observed that Dr. Troy's office notes indicated that Ms. Curtincould engage in "something very sedentary," and concluded that Ms. Curtin"would have sed[entary] capacity as indicated by [attending physician]."

After Nurse Reynolds' review, the "Customer Care Specialist" assignedto Ms. Curtin's file called Dr. Troy to clarify what he had intended whenhe placed a checkmark on the line on Unum's form that requested thenumber of hours that Ms. Curtin could engage in sedentary work in aneight-hour workday. The notes from that conversation indicate that Dr.Troy:

state[d] he does not believe she is employable at all due to heteratopic [sic] bone in her hip. He state[d that] she can not even sit for more than 10-15 minutes at a time, she uses a cane and cannot walk over 10 min. . . . with the osteoarthritis she can barely move. In the telephone conversation, Dr. Troy clarified that Ms. Curtincould not engage in sedentary activity for any number of hours in aneight-hour work day, and (according to the file notes) that "she [was]unemployable."

Following this conversation with Dr. Troy, Nurse Reynolds revisited herevaluation of Ms. Curtin's file, and apparently based on the conflictbetween her conclusion and Dr. Troy's evaluation of Ms. Curtin'semployment abilities, referred the file to an onsite physician.

Dr. Lawrence Broda, Unum's onsite physician, reviewed the office notesof Drs. Troy and Reel and the results of an October 2000 x-ray. Despitethe telephonePage 10conversation between Dr. Troy and the Customer Care Specialist andthe ambiguity in the form completed by Dr. Troy, Dr. Broda reported inhis review that Ms. Curtin's attending physician had stated that she hadsedentary work capacity for eight-hour days. Dr. Broda concluded that heagreed that Ms. Curtin had full time sedentary work capacity.Following an email from the Customer Care Specialist to Nurse Reynoldsnoting the discrepancy between Dr. Broda's interpretation of Dr. Troy'sopinion and Dr. Troy's opinion as expressed over the telephone, Dr. Brodareviewed his report. Dr. Broda confirmed his earlier conclusion and wroteat the bottom of the report: "Ambulating with cane, providing care forparent. Has [full-time] sed[entary] capacity." Dr. Broda's notes neverindicate an awareness of the telephone conversation between Dr. Troy andthe Customer Care Specialist or Dr. Troy's opinion that Ms. Curtin wasnot employable even in a sedentary capacity.

Following Dr. Broda's initial review, Unum commissioned a transferableskills analysis ("TSA"). As framed in the report, "[t]he request was madeto find suitable sedentary occupations within the education and workbackground of Ms. Curtin." Based on the erroneous information that "[h]erattending physician, Dr. Troy, has released her to work in a full-timesedentary capacity," the TSA found five positions consistent with Ms.Curtin's past work and education and the reported medical restrictionsand limitations. Because the TSA is founded on data which is at thecenter of this dispute (Ms. Curtin's ability to engage in sedentaryactivity), it provides no support for the conclusion that Ms. Curtin isemployable.

On December 21, 2001, Unum sent a two-page letter to Ms. Curtin'sattorney denying her claim, indicating that "the Disability Specialisthas determined that Ms.Page 11Curtain [sic] has full time sedentary work capacity," andenumerating the five sedentary activity positions identified in the TSA.In response, Ms. Curtin's attorney sent a letter of appeal, accompaniedby a letter from Dr. Troy. The appeal letter mentioned that "[i]f Ms.Curtin had been interviewed by Unum's disability analyst, she would havebeen informed that . . . Ms. Curtin is unable to sit, stand or walkfor any period of time. She is required to take frequent breaks, to restby laying [sic] down and/or reclining due to fatigue and pain." It alsonoted that Ms. Curtin had been awarded Social Security DisabilityInsurance benefits based on the disabilities for which she soughtbenefits from Unum. Dr. Troy's attached letter, dated January 31, 2002,stated that Ms. Curtin had suffered "massive, multiple trauma" in a motorvehicle accident, and that "[d]ue to residual loss of hip, knee and anklefunction, Lillian Curtain [sic] is orthopaedically unfit for employmenteven in sedentary, light work category. She is permanently totallydisabled. Comment on her disability related to her internal organ damagecan be obtained through her primary care physician."

On April 2, 2002, Unum sent Ms. Curtin's attorney a letter indicatingthat the initial denial had been affirmed and that Ms. Curtin would notbe awarded benefits under the policy. The second denial letter was moredetailed than the first, and laid out the pertinent language of thepolicy, as well as the medical information reviewed in connection withthe decision to deny benefits. Although the second denial letterdescribed Dr. Troy's January 31, 2002 letter and his conversation withUnum's "Customer Care Specialist" along with most of the medicalinformation laid out above, the letter did not state that (or explainwhy) these reports from Dr. Troy were not deemed credible. The letteralso noted that Ms. Curtin's receipt of Social Security DisabilityPage 12Income benefits "does not in and of itself entitle Ms. Curtin todisability benefits under other plans." In response to furthercorrespondence from Ms. Curtin's attorneys, Unum sent a letter to Ms.Curtin's current attorney on May 2, 2003 indicating that Ms. Curtin "hasexhausted all administrative remedies" and returning additional documentsthat had been submitted for review.

C. Discussion

In their opposition to Plaintiff's motion for summary judgment andtheir cross-motion for summary judgment, Defendants argue that Ms. Curtindid not provide documentation to show that she suffered a permanent totaldisability within 180 days of the accident and that she did not remainpermanently and totally disabled for the ensuing twelve-month period. Insupport of this position, Defendants point out that neither Dr. Troy norDr. Reel stated that she was unemployable during the periods in question,and made no mention of such limitations until asked on insurance formsabout such limitations. However, Ms. Curtin was not employed or seekingemployment during those time periods, so there would have been no reasonfor either doctor to include in his notes an indication of hereligibility for or ability to engage in gainful employment.

Unum had no basis to disbelieve the information provided by Dr. Troy.His error on the insurance form was corrected both over the telephone andin writing in connection with the administrative appeal. He did notchange his opinion following an adverse decision by Unum or under anyother questionable circumstances. Compare Brigham v. Sun Life ofCan., 317 F.3d 72, 85 (1st Cir. 2003). He simply clarified themeaning of his response to a question on a form, a clarification thathappened to be unfavorable to Unum.Page 13

There was no significant discrepancy between Dr. Troy's office notesand the insurance form filled out the same day — any variation wasminor, and represented a change in language, not a change in intent. Noexamining doctor disagreed with Dr. Troy's conclusion that she was unableto work even in a sedentary occupation. Office notes indicating that Ms.Curtin was able to perform some housework and provide care for her motherdo not evidence an ability to participate in a competitive workenvironment. See Cook, 320 F.3d at 23. This Court finds as amatter of fact that Ms. Curtin submitted to Unum ample evidence tosupport a finding that she had suffered a Permanent Total Disability asdefined in the Policy.

Whatever the basis for their conclusions, Unum's employees concludedotherwise and Unum seeks to rely on the reports of Nurse Reynolds and Dr.Broda to support its denial of Ms. Curtin's claim. Unum cites Black& Decker Disability Plan v. Nord, 123 S.Ct. 1965 (2003) andFerrara & DiMercurio, Inc. v. St. Paul Mercury Ins. Co.,169 F.3d 43 (1st Cir. 1999) for its position that it is "entitled toconsult and rely on its own experts and is not required to accept theword of Curtin's doctors or Curtin herself." (Def.'s Cross-Mot. Summ. J.(Docket #15) at 12.) Unfortunately for Unum, these cases do not stand forthe proposition that an insurer may deny claims based only on theunsupported conclusions of its employees. Black & Deckersimply establishes that ERISA plan administrators "are not obliged toaccord special deference to the opinions of treating physicians." 123 So.Ct. at 1967. It does not allow an insurer to disregard the opinion of atreating physician in the absence of medical evidence contrary to thetreating physician's opinion. Instead, the Black & Deckerdecision makes clear that "[p]lan administrators . . . may notarbitrarily refuse to credit a claimant's reliable evidence,Page 14including the opinions of a treating physician." Id. at1972. Significantly, the Black & Decker case involved aclaimant whose treating physician opined that the claimant was incapableof working, but as to whom an independent medical examiner concluded thatthe claimant could continue his sedentary work activities with someaccommodations. See id. at 1968.

Ferrara & DiMercurio involved a claim against the insurerof a fishing vessel for failure to settle an insurance claim in badfaith, a violation of Massachusetts' unfair practices statute. As Unumpoints out, the First Circuit in that case held that "[i]nsurers are bothencouraged and entitled to rely . . . on the advice of expertconsultants in evaluating liability." 169 F.3d at 56. However, theFerrara & DiMercurio case involved a claim that the insurerhad reason to believe was caused by arson based on the expert opinions oftwo fire analysts, both of whom had made extensive examinations of theremains of the insured vessel.

Unlike the situations presented in Black & Decker andFerrara & DiMercurio, the insurer in the case at issue herehas not developed any support in the record for its position that Dr.Troy exaggerates the extent of Ms. Curtin's disability (and eligibilityfor insurance benefits). This case is more analogous to the situationpresented in Cook v. Liberty Life Assurance Co. of Boston320 F.3d 11 (1st Cir. 2003). In Cook, an ERISA case evaluated underthe "arbitrary and capricious" standard of review, the court found theinsurer's denial of benefits to be unreasonable where the treatingphysician was clear as to the claimant's ability to engage in gainfulemployment, there was no reason to conclude that the doctor was colludingwith the claimant, and the insurer had notPage 15"developed any contradictory evidence in the record to support itsdecision." Id. at 23. The Cook court stated:

There may well be cases where the opinion of the claimant's treating physician can be rejected without reliance on any contradictory medical evidence developed by the plan administrator. Here, however, without another reasonable basis for rejecting [the treating physician's] opinion, the absence of that contradictory evidence is fatal to [the insurer's] case. Id. While Unum did submit Ms. Curtin's medical records toreview by an onsite doctor, Dr. Broda's report merely states that heagreed with Dr. Troy that Ms. Curtin has full-time sedentary workcapacity. Dr. Broda's report does not address the ambiguity in Dr. Troy'scompletion of the Unum form or the clarification in Dr. Troy's telephoneconversation with the Unum representative. As a result, the Court findsthat Dr. Broda's report can hardly be said to constitute evidence thatMs. Curtin did not sustain a Permanent Total Disability.

In the second denial letter, Unum correctly asserts that Ms. Curtin'sreceipt of Social Security Disability Income benefits does not in and ofitself entitle Ms. Curtin to benefits. See Pari-Fasano v. IITHartford Life & Accident Ins. Co., 230 F.3d 415, 420. However,the Court finds that the determination of the Social SecurityAdministration that Ms. Curtin is disabled because of the injuriessustained in the November 18, 1997 automobile accident is relevant to,though it does not control, a determination of whether Ms. Curtinsuffered a Permanent Total Disability as defined in the Policy. Seeid.

Based on the evidence before it, this Court ultimately concludes thatUnum's decision was incorrect. In a case such as this where the planadministrator erred as to the claimant's eligibility for benefits, thedistrict court may "either remand the case to the administrator for arenewed evaluation of the claimant's case, or it can award aPage 16retroactive reinstatement of benefits." Cook, 320 F.3d at24. In this case, there is no argument that the administrative record isincomplete, and this Court sees no reason why the question of Ms.Curtin's eligibility for benefits should be subject to furtherproceedings before the plan administrator. Therefore, the Court willaward Ms. Curtin the $100,000.00 lump sum payment provided for in thePolicy.

D. Additional Remedies

Two issues remain to be resolved: prejudgment interest and attorney'sfees. The court will address each in turn. Prejudgment interest is"available, but not obligatory, in ERISA cases." Cottrill v.Sparrow. Johnson & Ursillo, Inc., 100 F.3d 220, 223 (1st Cir.1996). Prejudgment interest is awarded to "ensure that an injured partyis fully compensated for its loss." City of Milwaukee v. CementDivision, Nat. Gypsum Co., 515 U.S. 189, 195 (1995). "Ordinarily, acause of action under ERISA and prejudgment interest on a planparticipant's claim both accrue when a fiduciary denies a participantbenefits." Cottrill, 100 F.3d at 223. Ms. Curtin's cause ofaction accrued on April 2, 2003, the date that Unum affirmed its originaldecision in the administrative appeal. Likewise, prejudgment interestshall be calculated from that date. Cf. Salcedo v. John Hancock Mut.Life Ins. Co., 38 F. Supp.2d 37, 42-43 (1st Cir. 1998)(interpreting Cottrill to mean that the statute of limitationsin an ERISA case begins to run from the denial of the appeal, not fromthe initial denial of benefits).

Guided by equitable considerations, this Court has broad discretion tochoose the rate of prejudgment interest. See Cottrill, 100 F.3dat 225. Having considered the best means to compensate Ms. Curtin for theloss of use of her disability benefit, the Court determines thatprejudgment interest shall be calculated based on the federal prime ratePage 17for the period in question See Pimentel v. Jacobsen FishingCo., Inc., 102 F.3d 638, 640 (1st Cir. 1996) (noting in dicta thatusing the prime rate to calculate prejudgment interest "would bereasonable"). Thus, the Court hereby awards Plaintiff prejudgmentinterest for the period beginning April 2, 2003 up until the date ofentry of judgment in this case, such interest to be calculated using therelevant federal prime rates and compounded daily.5

Ms. Curtin's complaint also requested an award of attorney's fees, andERISA, in fact, provides for the award of such fees in the Court'sdiscretion. 29 U.S.C. § 1132(g). In deciding whether to award suchfees, courts consider the following five factors: (1) the degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party's pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties' positions.Cottrill, 100 F.3d at 225. These factors are "exemplaryrather than exclusive." Id.

With respect to the first factor — culpability — this Courtfinds that Defendants exhibited a low level of care to avoid improperdenial of claims at great human expense. Defendants clearly have thecapacity to pay Ms. Curtin's attorney's fees. An award of attorney's feesin this case is an important deterrent measure: first, because of thelimited remedies available under ERISA to plaintiffs such as Ms. Curtin,insurers should not have incentive to deny meritorious claims with theassumption that a fair number of claimants will not sue; and second,because an award of attorney's fees encourages attorneys to take ondifficult and contentious ERISA cases. As for the fourth factor, thebenefit conferred on other plan participants from this case is likely tobe minimal, sincePage 18the resolution of this case turned on facts specific to Ms.Curtin's situation Finally, the Court concludes that Defendants' positionhad little merit relative to Ms. Curtin's claim for her disabilitybenefit. Having weighed each of these factors, the Court concludes thatan award of attorney's fees is proper in this case. Nevertheless, at thisjuncture, the Court does not have any basis upon which to determine anappropriate amount for an award of attorney's fees. Therefore, the Courtdirects Plaintiff to file a motion for attorney's fees following theprocedures set forth in Federal Rule of Civil Procedure 54(d) and LocalRule 54.2.

III. Conclusion

For the reasons explained above, the Court hereby GRANTS Plaintiff'sMotion for Summary Judgment (Docket #8) and ORDERS that Defendants payPlaintiff the lump sum payment due under the Policy together withprejudgment interest. The amount of attorney's fees awarded shall beresolved upon the Court's receipt of papers from the parties as directedabove.


1. Two later filings explain in a footnote that Defendants' counselconsidered Plaintiff's motion for summary judgment to be a motion forsummary judgment against Defendant Unum Life Insurance Company of Americaonly. While Plaintiff's motion for summary judgment is by no meansartfully crafted, the Court finds no basis to conclude that the motionseeks summary judgment against only one of the Defendants. BecauseDefendants are represented by the same counsel and have otherwise sharedlegal documents, the Court will treat documents filed by Unum LifeInsurance Company of America in response to Plaintiff's motion forsummary judgment as filed on behalf of both Defendants.

2. Both of these documents were signed by Defendants' attorneys as"Attorneys for City of Portland, ME" This apparent error is disregardedby the Court.

3. The Court does note that "Plaintiff's Objection to Defendants'Motion to Strike and to the Introduction of New Issues" violated the pagelimits of Local Rule 7(e) and was non-responsive to Defendants' Motion toStrike. Moreover, much of Plaintiff's initial Statement of Material Factsis impermissibly argumentative and/or unsupported by citations to therecord. In order to avoid unnecessary expense and possible futuresanctions, the Court advises Plaintiff's counsel to read the Local Rulesof the United States District Court for the District of Maine, and tocomply with those rules in all future filings with this Court.

4. Ms. Curtin's motion for summary judgment indicated that sheintended to bring into issue what she alleged was Defendants' corporateculture of denying claims in bad faith to save money. When Defendantsresponded with their motion for continuance pursuant to Federal Rule ofCivil Procedure 56(f), to conduct discovery regarding Ms. Curtin'sallegations of bad faith, Ms. Curtin objected and indicated that "bothparties have become quite familiar [with] the paper record in this case."Ms. Curtin stated that if the case could not be resolved in a motion forsummary judgment she would be prepared to go to trial with no preliminarydiscovery.

5. Historic daily prime rates are available athttp://www.federalreserve.gOv/releases/h15/data/d/prime.txt.

Back to top