Free Response to Motion - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Thomas Klinkel State Bar No. 010955 Scott M. Bennett State Bar No. 022350 Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Halliburton Company Long-Term Disability ) Plan; and, Hartford Life & Accident ) Insurance Company, ) ) Defendants. ) )

8 David L. Mazet, 9 10 11 12 13 14 15

No. CV 04-0493 PHX FJM RESPONSE TO MAZET'S MOTION TO REINSTATE AND TO STAY PLAINTIFF'S ACTION PENDING REMAND TO PLAN ADMINISTRATOR

Mazet has moved to reinstate and stay his lawsuit to allow remand to the plan

16 administrator (Hartford). Defendants do not oppose these requests--as they understand 17 them. But they wish to express their understanding of the relief that Mazet seeks. 18 As this Court is aware, this case involves Mazet's claim for long-term disability

19 benefits under an employee-welfare benefit plan governed by the Employee Retirement 20 Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. 21 On July 15, 2005, this Court granted judgment on the administrative record in

22 favor of defendants on the bulk of the issues in this case. But the Court remanded one 23 issue to Hartford--Mazet's contention, presented for the first time in litigation (rather 24 than during the claim process), that Hartford had undercalculated his predisability 25 earnings, resulting in an underpayment of benefits. 26 On August 15, 2006, Mazet filed a notice of appeal. Defendants moved to dismiss

27 the appeal on the ground that there was no final, appealable order because of the 28
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remanded issue. The Ninth Circuit agreed and, on December 15, 2006, dismissed Mazet's appeal. Mazet has now moved to reinstate his lawsuit and for a stay pending a decision by Hartford on the remanded issue. As defendants understand it, Mazet's request for reinstatement means that this lawsuit will remain before this Court, and Mazet will not have to file a new lawsuit if he disagrees with the decision on remand. And defendants understand that the requested stay would not affect Hartford's ability to consider the remanded issue, but would simply hold this lawsuit in abeyance pending a decision on remand. If defendants' understanding on these points is correct, then they do not oppose Mazet's requests. RESPECTFULLY SUBMITTED on January 2, 2007. LEWIS AND ROCA LLP

By s/ Thomas Klinkel Thomas Klinkel Scott M. Bennett Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on January 2, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Randolph G. Bachrach, Esq. Law Offices of Randolph G. Bachrach 5103 East Thomas Road Phoenix, Arizona 85018 Attorneys for Plaintiff

s/ Eileen Fernstrom

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