Free Answer to Complaint - District Court of California - California

Case 3:08-cv-01353-LAB-WMC

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Filed 08/01/2008

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B URKE , W ILLIAMS & S ORENS EN , LLP
ATTO RNEY S AT LAW LOS A NG EL ES

BURKE, WILLIAMS & SORENSEN, LLP Stephen H. Galton (SBN 046732) [email protected] Keiko J. Kojima (SBN 206595) [email protected] 444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 Telephone: 213.236.0600 Facsimile: 213.236.2700 Attorneys for Defendants The Paul Revere Life Insurance Company and Unum Group UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

WEYMAN H. COX II, Plaintiff, v. PAUL REVERE LIFE INSURANCE COMPANY, UNUMPROVIDENT CORPORATION, and DOES 1 through 10, Inclusive, Defendants.

Case No. 08 CV 1353 LAB WMc DEFENDANTS' ANSWER TO COMPLAINT

Defendants The Paul Revere Life Insurance Company ("Paul Revere"), erroneously sued as "Paul Revere Life Insurance Company," and Unum Group ("Unum"), formerly known as UnumProvident Corporation, [collectively "Answering Defendants"] answer the Complaint herein by admitting, denying, and alleging as follows:

ANSWERS TO GENERAL ALLEGATIONS

1. thereof.

Answering paragraph 1, Answering Defendants admit the allegations

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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

Case 3:08-cv-01353-LAB-WMC

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B URKE , W ILLIAMS & S ORENS EN , LLP
ATTO RNEY S AT LAW LOS A NG EL ES

2.

Answering paragraph 2, Answering Defendants admit and allege that

Unum Group, formerly known as UnumProvident Corporation, is a corporation organized under the laws of the State of Delaware with its principal place of business in Chattanooga, Tennessee. Except as expressly admitted and alleged, Answering Defendants deny the remaining allegations of said paragraphs. 3. Answering paragraph 3, Answering Defendants admit and allege that

Paul Revere is a corporation, organized under the laws of the State of Massachusetts, with its principal place of business located in Worcester, Massachusetts, and that at all relevant times it has been properly licensed and authorized to engage in the business of insurance in the State of California and the County of San Diego. 4. Answering paragraph 4, Answering Defendants deny each and every

allegation thereof. 5. Answering paragraphs 5 and 6, Answering Defendants are without

knowledge or information sufficient to form a belief as to the truth of the allegations of said paragraphs, and they deny said allegations on that basis. 6. Answering paragraph 7, Answering Defendants admit and allege that

on and effective January 24, 1992, Paul Revere issued an individual policy of disability insurance, no. 01025485340, to Plaintiff, providing specified benefits for disability in accordance with the terms, limitations, and provisions thereof. Answering Defendants allege that the policy itself is the best evidence as to the contents thereof. 7. Answering paragraph 8, Answering Defendants deny each and every

allegation thereof. 8. Answering paragraph 9, Answering Defendants admit and allege that

on and effective January 24, 1992, Paul Revere issued an individual business overhead expense policy, no. 01025492650, to Plaintiff, providing specified business overhead expense benefits in accordance with the terms, limitations, and
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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

Case 3:08-cv-01353-LAB-WMC

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B URKE , W ILLIAMS & S ORENS EN , LLP
ATTO RNEY S AT LAW LOS A NG EL ES

provisions thereof. Answering Defendants allege that said policy is the best evidence as to the contents thereof. 9. thereof. 10. Answering paragraph 11, Answering Defendants are without Answering paragraph 10, Answering Defendants admit the allegations

knowledge or information sufficient to form a belief as to the truth of the allegations of said paragraph, and they deny said allegations on that basis. 11. Answering paragraph 12, Answering Defendants admit and allege that

Plaintiff submitted a claim to Paul Revere for benefits under his policies based on his contention that he became totally disabled on December 28, 2004 as a result of a snowmobile accident in November 1994, which caused a retinal detachment in his left eye, and later in his right eye. Answering Defendants admit further that Paul Revere made certain payments to Plaintiff under his policies. Except as expressly admitted, Answering Defendants deny the remaining allegations of said paragraph. 12. Answering paragraph 13, Answering Defendants admit that Plaintiff

submitted a claim to Paul Revere for certain expenses allegedly incurred in his business, and that said claims were denied for good and sufficient reasons. Answering Defendants admit further that Plaintiff appealed the denial of said expenses and that the denial was upheld by Paul Revere. Except as expressly admitted and alleged, Answering Defendants deny the remaining allegations of said paragraph. 13. Answering paragraph 14, Answering Defendants admit and allege that

Paul Revere wrote to Plaintiff on April 25, 2008 concerning his claim, and that said writing is the best evidence as to the contents thereof. 14. Answering paragraph 15, Answering Defendants deny each and every

allegation thereof. /// ///
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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

Case 3:08-cv-01353-LAB-WMC

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ANSWERS TO ALLEGATIONS OF FIRST COUNT

15.

Answering paragraph 16, Answering Defendants refer to and

incorporate herein by this reference their Answers to paragraphs numbers 1 through 15 of the Complaint herein. 16. Answering paragraphs 17 through 21, inclusive, Answering

Defendants deny each and every allegation thereof.

ANSWERS TO ALLEGATIONS OF SECOND COUNT

17.

Answering paragraph 22, Answering Defendants refer to and

incorporate herein by this reference their answers to the allegations of paragraphs numbers 1 through 15 of the Complaint herein. 18. Answering paragraphs 23 through 29, inclusive, Answering

Defendants deny each and every allegation thereof.

FIRST AFFIRMATIVE DEFENSE

19.

The Complaint, and each of its alleged causes of action, fails to state a

claim upon which relief may be granted against Answering Defendants, or either of them.

SECOND AFFIRMATIVE DEFENSE

20.

The Complaint, and each of its alleged causes of action, is barred by

the applicable statutes of limitations and/or contractual limitations periods. /// ///
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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

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ATTO RNEY S AT LAW LOS A NG EL ES

THIRD AFFIRMATIVE DEFENSE

21.

The Complaint, and each of its alleged causes of action, is barred by

Plaintiff's failure to exhaust contractual and administrative remedies.

FOURTH AFFIRMATIVE DEFENSE

22.

The Complaint, and each of its alleged causes of action, is barred by

the doctrines of waiver, estoppel, unclean hands, and laches.

FIFTH AFFIRMATIVE DEFENSE

23.

Answering Defendants allege on information and belief that after the

occurrence of the alleged loss and damage to Plaintiff, Plaintiff herein failed and refused to mitigate his damages and by reason thereof, he is barred, in whole or in part, from recovery from Answering Defendants.

SIXTH AFFIRMATIVE DEFENSE

24.

Answering Defendants allege on information and belief that the

incident, injury or damage alleged in the Complaint occurred and was proximately caused by either the sole negligence or sole bad faith conduct of Plaintiff, which bars Plaintiff's recovery, or was contributed to by Plaintiff's negligence or bad faith conduct. Plaintiff's recovery, if any, should be reduced by an amount proportionate to the amount by which Plaintiff's negligence or bad faith conduct contributed to the happening of the alleged injuries. /// ///
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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

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B URKE , W ILLIAMS & S ORENS EN , LLP
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SEVENTH AFFIRMATIVE DEFENSE

25.

Each and every act or statement done or made by Answering

Defendants, their officers, employees, agents, or attorneys, with reference to Plaintiff, or Plaintiff's claim, was a good faith assertion of their rights and was privileged.

EIGHTH AFFIRMATIVE DEFENSE

26.

Plaintiff's claims for extra-contractual damages are barred by the

provisions of California Insurance Code, § 10111.

NINTH AFFIRMATIVE DEFENSE

27.

Plaintiff's claim for attorneys' fees is barred by California Code of

Civil Procedure § 1021.

TENTH AFFIRMATIVE DEFENSE

28.

Plaintiff's claims for breach of contract and breach of the implied

covenant of good faith and fair dealing are barred by his failure to pay premiums to maintain his policies in force.

ELEVENTH AFFIRMATIVE DEFENSE

29.

Plaintiff's claim for punitive damages is barred by the Fourteenth

Amendment substantive due process provision of the Constitution of the United ///
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CASE NO. 08 CV 1353 LAB WMC DEFENDANTS' ANSWER TO COMPLAINT

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B URKE , W ILLIAMS & S ORENS EN , LLP
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States of America and/or the Article 1, § 7 substantive due process provision of the Constitution of the State of California.

TWELFTH AFFIRMATIVE DEFENSE

30.

Plaintiff's claim for punitive damages is barred by the Fourteenth

Amendment procedural due process provision of the Constitution of the United States of America and/or the Article 1, § 7 procedural due process provision of the Constitution of the State of California.

THIRTEENTH AFFIRMATIVE DEFENSE

31.

Plaintiff's claim for punitive damages is barred by the Article 1, § 17

excessive fines provision of the Constitution of the State of California.

FOURTEENTH AFFIRMATIVE DEFENSE

32.

Plaintiff's claim for punitive damages is barred by the Article 1, § 10

contracts clause of the Constitution of the United States of America and/or the Article 1, § 9 contracts clause of the Constitution of the State of California.

FIFTEENTH AFFIRMATIVE DEFENSE

33.

Should Plaintiff produce clear and convincing evidence sufficient to

satisfy the requirements for punitive damages under Civil Code § 3294 as to Answering Defendants, any punitive damages awarded must be reasonable in terms of the guideposts established by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996),
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B URKE , W ILLIAMS & S ORENS EN , LLP
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and refined in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003): (1) the degree of reprehensibility of defendants' conduct; (2) the actual harm inflicted; and (3) the civil or criminal penalties that could be imposed for comparable conduct.

WHEREFORE, Answering Defendants pray judgment: 1. 2. 3. proper. That Plaintiff take nothing by reason of his Complaint; For costs of suit incurred herein, including attorneys' fees; and For such other and further relief as the Court may deem just and

Dated: August 1, 2008

Burke, Williams & Sorensen, LLP Stephen H. Galton Keiko J. Kojima By: /s/ Stephen H. Galton Stephen H. Galton Attorneys for Defendants The Paul Revere Life Insurance Company and Unum Group

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