Free Answer to to CounterClaim - District Court of California - California

Case 5:07-cv-04789-JF

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Filed 04/07/2008

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JOSEPH A. SCANLAN, JR., ESQ., SBN 101928 ERIC C. McALLISTER, ESQ. SBN 252567 MILLER, MORTON, CAILLAT & NEVIS, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 Facsimile: (408) 436-8272 [email protected] [email protected] Attorneys for Plaintiff ROBERT CHRISTENSEN

UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA (San Jose Division) ROBERT H. CHRISTENSEN, Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: C07 04789 JF ROBERT H. CHRISTENSEN'S RESPONSE TO PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY'S COUNTERCLAIM

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PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, a corporation, Defendants.

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MILLER, MORTON, CAILLAT & NEVIS, LLP th 25 Metro Drive, 7 Floor San Jose, CA 95110 Telephone: (408) 292-1765

And Related Cross-Claim

COMES NOW, Plaintiff and Counter Defendant ROBERT H. CHRISTENSEN, and answers the Counterclaim of PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, as follows: 1. Answering the allegations of Paragraph 1 of the Counterclaim, Counter Defendant

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admits the allegations in that Paragraph. 2. Answering the allegations of Paragraph 2 of the Counterclaim, Counter Defendant

admits the allegations in that Paragraph. 3. Answering the allegations of Paragraph 3 of the Counterclaim, Counter Defendant 1
ROBERT H. CHRISTENSEN'S RESPONSE TO PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY'S COUNTERCLAIM Christensen v. Provident Case No. C07 04789 JF

Case 5:07-cv-04789-JF

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MILLER, MORTON, CAILLAT & NEVIS, LLP th 25 Metro Drive, 7 Floor San Jose, CA 95110 Telephone: (408) 292-1765

admits that the date of issue for the subject policy is April 1, 1989, but further avers that the coverage under said policy was provided by a number of earlier, prior policies. 4. Answering the allegations of Paragraph 4 of the Counterclaim, Counter Defendant

admits that he submitted a claim for disability benefits, that the policy contains a 60-day elimination period, and that benefits are payable for life. Counter Defendant denies the balance of the allegations contained in Paragraph 4. 5. Answering the allegations of Paragraph 5 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 6. Answering the allegations of Paragraph 6 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 7. Answering the allegations of Paragraph 7 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 8. Answering the allegations of Paragraph 8 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 9. Answering the allegations of Paragraph 9 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 10. Answering the allegations of Paragraph 10 of the Counterclaim, Counter Defendant

admits the allegations contained therein. 11. Answering the allegations of Paragraph 11 of the Counterclaim, Counter Defendant

admits that he received letters on the specified date, but denies the balance of the allegations contained in Paragraph 11. 12. Answering the allegations of Paragraph 12 of the Counterclaim, Counter Defendant

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denies the allegations contained therein. 13. Answering the allegations of Paragraph 13 of the Counterclaim, Counter Defendant

denies the allegations contained therein. 14. Answering the allegations of Paragraph 14 of the Counterclaim, Counter Defendant

denies the allegations contained therein. 15. Answering the allegations of Paragraph 15 of the Counterclaim, Counter Defendant 2
ROBERT H. CHRISTENSEN'S RESPONSE TO PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY'S COUNTERCLAIM Christensen v. Provident Case No. C07 04789 JF

Case 5:07-cv-04789-JF

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MILLER, MORTON, CAILLAT & NEVIS, LLP th 25 Metro Drive, 7 Floor San Jose, CA 95110 Telephone: (408) 292-1765

denies the allegations contained therein. FIRST CLAIM OF COUNTERCLAIM (Declaratory Relief) 16. Answering the allegations of Paragraph 16 of the Counterclaim, Counter Defendant

realleges and incorporates his answers to Paragraphs 1 through 15 above as though fully set forth herein. 17. Answering the allegations of Paragraph 17 of the Counterclaim, Counter Defendant

admits the allegations set forth therein. 18. Answering the allegations of Paragraph 18 of the Counterclaim, Counter Defendant

denies the allegations contained therein. 19. Answering the allegations of Paragraph 19 of the Counterclaim, Counter Defendant

admits that he disputes the position of PROVIDENT and denies the balance of the allegations contained in Paragraph 19. 20. Answering the allegations of Paragraph 20 of the Counterclaim, Counter Defendant

denies the allegations contained therein. 21. Answering the allegations of Paragraph 21 of the Counterclaim, Counter Defendant

denies the allegations contained therein. AFFIRMATIVE DEFENSES 1. As a first affirmative defense, Counter Defendant alleges that no grounds are stated

which constitute a cause of action cognizable in law or equity. 2. As a second affirmative defense, Counter Defendant alleges that Counter Claimant

failed to comply with conditions precedent in the insurance contract prior to bringing this action. 3. As a third affirmative defense, Counter Defendant alleges that the Counterclaim is

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barred by Counter Claimant's prior material breach of the insurance contract at issue. 4. As a fourth affirmative defense, Counter Defendant alleges that Counter Claimant

appears before this Court with unclean hands and is not entitled to legal or equitable relief. PRAYER WHEREFORE, Counter Defendant prays judgment as follows: 3
ROBERT H. CHRISTENSEN'S RESPONSE TO PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY'S COUNTERCLAIM Christensen v. Provident Case No. C07 04789 JF

Case 5:07-cv-04789-JF

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Filed 04/07/2008

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MILLER, MORTON, CAILLAT & NEVIS, LLP th 25 Metro Drive, 7 Floor San Jose, CA 95110 Telephone: (408) 292-1765

1.

For a finding by this Court that Counter Claimant is not entitled to declaratory relief on account of its failure, in bad faith, to investigate CHRISTENSEN's claim for insurance benefits and failure to reject or approve such claim in the manner and time prescribed by the State of California in accordance with its administrative regulations;

2.

Alternately, for a declaration that a. b. PROVIDENT improperly handled the claim for benefits; PROVIDENT is obligated to pay benefits to CHRISTENSEN in an amount to be determined by the jury in this action; c. CHRISTENSEN is entitled to benefits from the date of his notification to PROVIDENT to the time the Court rules; d. PROVIDENT is entitled only to such information from CHRISTENSEN in connection with his claim as it is entitled to under the policy and the laws of the State of California and the United States of America.

3. 4.

For costs of suit incurred herein; For such other and further relief as the Court may deem just and proper. MILLER, MORTON, CAILLAT & NEVIS, LLP

Dated: April 7, 2008

By: _/s/___________________________________ JOSEPH A. SCANLAN, JR. Attorneys for Plaintiff ROBERT CHRISTENSEN

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ROBERT H. CHRISTENSEN'S RESPONSE TO PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY'S COUNTERCLAIM Christensen v. Provident Case No. C07 04789 JF