Free Report re: Rule 26(f) Planning Meeting - District Court of Arizona - Arizona

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SURRANO LAW OFFICES
Attorneys at Law

3200 North Central Avenue, Suite 2500 Phoenix, Arizona 85012 (602) 264-1077 Charles J. Surrano III (007732) [email protected] John N. Wilborn (013714) [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA HARRY D. HARTNETT, Case No.: CIV 03-1339-PHX-MHM SECOND JOINT PROPOSED CASE MANAGEMENT PLAN

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Plaintiff, vs. UNUM PROVIDENT CORPORATION, et al., Defendants.

Pursuant to the Order of this Court dated February 14, 2006, and Rules 26(f) and 16 of the Fed. R. Civ. P., the parties hereby submit their Second Proposed Case Management Plan. This case is before the Court after the Plaintiff moved to stay the proceedings, in order to submit his claim to the UNUMProvident Reassessment Program. On January 10, 2005 the Plaintiff filed a motion to stay the proceedings and the Court entertained that motion on January 11, 2005. On January 28, 2005 the Court stayed the proceedings and dismissed the parties' motion for summary judgment giving the parties leave to refile motions for summary judgment in the event the case returned to Federal Court.

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The Reassessment Program has now affirmed the original decision to deny benefits. The parties intend to resubmit motions for summary judgment but will need to review the new record before submitting motions. I. NATURE OF THE CASE Plaintiff was employed by the accounting firm of Ernst & Young LLP. As an employee, Plaintiff was provided certain long-term disability ("LTD") income insurance with Provident Life and Casualty Insurance Company ("PLCIC"), which Plaintiff contends is a wholly owned subsidiary of UnumProvident, pursuant to its Group Long-Term Disability Insurance Policy, more specifically referenced to as Policy # 121290-01. Plaintiff contends that PLCIC acted as administrator of the Group LTD Insurance Policy, for Plaintiff's employer, Ernst & Young LLP. Plaintiff alleges that he suffered/suffers from chronic, progressive sinusitis, chronic, progressive bronchitis, chronic pneumonia, sleep apnea, which he contends results in the inability to concentrate, memory difficulties, and chronic fatigue, upper respiratory infections and allergies. Due to these alleged illnesses, Plaintiff stopped working on or about May 7, 1999 and submitted a claim to PLCIC, which sent Plaintiff a letter with a reservation of rights advising him that it would begin paying LTD benefits based upon Plaintiff's alleged physical condition. PLCIC contends that it paid Plaintiff $17,493.33 and thereafter terminated benefits in or about January 2000. Plaintiff alleges that he is "disabled" and therefore unable to perform the material duties of his "own occupation," as defined in Plaintiff's Group LTD Insurance Policy, # 121290-01. PLCIC denies this allegation. Plaintiff appealed PLCIC's decision to terminate LTD benefits, and PLCIC thereafter affirmed its decision in or about October 2000. Plaintiff further alleges that after receiving additional medical evidence from Plaintiff regarding his physical condition, PLCIC conducted reviews by its medical staff and concluded that Plaintiff 2

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did not suffer from a physical impairment that would prevent him from performing the duties of his own occupation. Thereafter, on October 25, 2000, Plaintiff received final notification that his claim for LTD benefits was being terminated by PLCIC. PLCIC denies this allegation. Plaintiff also alleges that he had requested and still has not received, pursuant to that request, all of the documents/information PLCIC used in its decision to deny Plaintiff LTD benefits under the policy in violation of 29 U.S.C. § 1132(c)(1). PLCIC denies this allegation. Plaintiff's claim for LTD income benefits is subject to the provisions of 29 U.S.C. §1001, et seq., (ERISA). Plaintiff alleges that his benefits were terminated despite evidence of disability and inability to work by Plaintiff's treating physicians and PLCIC's denial of Plaintiff's claim for LTD benefits while acting as the Policy/Plan's Administrator was arbitrary and capricious and not reasonably supported by the record. allegations. Plaintiff alleges that the Defendant's conduct and the conduct of its employees and and/or agents constitutes a breach of the Defendant's responsibilities, obligations and/or duties imposed upon it by 29 U.S.C. § 1001, et seq. allegation. Plaintiff alleges that he has exhausted all administrative remedies under the plan, Plaintiff is entitled to bring a civil action pursuant to Section 502(a) of the Employee Retirement Income Security Act (ERISA); now codified at 29 U.S.C. § 1132(a). PLCIC denies this allegation. II. Elements of Proof, Factual and Legal Bases To prevail on his claim that long term disability benefits were unreasonably denied, Plaintiff must prove that Defendant PLCIC's benefit decision was arbitrary and 3 PLCIC denies this PLCIC denies these

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capricious or that PLCIC is a conflicted fiduciary and its self-interest tainted its decision on Plaintiff Hartnett's benefits such that a de novo standard of review applies. Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1323 (9th Cir. 1995); Barnett v. Kaiser Foundation Health Plan, Inc., 32 F.3d 413, 416 (9th Cir. 1994). Plaintiff must also prove that he is entitled to benefits. To prevail on its recoupment and related affirmative defenses, PLCIC must prove that it properly reserved its rights and that Plaintiff was not entitled to said benefits already paid, in whole or in part, due to social security and other offsets under the ERISA plan. Plaintiff denies Defendant is entitled to claim offsets or recoupment. III. Factual and Legal Issues Genuinely in Dispute 1. Whether the Court should apply an abuse of discretion standard of review or a de novo standard of review in reviewing PLCIC claim decision. 2. If the Court applies the abuse of discretion standard of review, whether PLCIC abused its discretion in terminating further benefits. 3. If the Court applies the de novo standard of review, whether Plaintiff is disabled as defined by the Plan. 4. 5. Whether the successful party is entitled to recover its attorneys' fees. Whether PLCIC is entitled to recoup or otherwise recover any and all payments and/or overpayments made under a reservation of rights, and the amount thereof. IV. Jurisdictional Basis of the Case ERISA, 29 U.S.C. §§ 1132(a) and (e). V. Parties that have not been Served None VI. Parties not Subject to Court's Jurisdiction None known at this time. 4

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VII.

Dispositive or Partially Dispositive Motions Both parties intend to file dispositive motions. If this case is not decided on

motions, then this Court will decide the merits of this case after a bench trial based upon the administrative record. VIII. Whether the Case is Suitable for Reference to Arbitration, a Special Master or a Magistrate Judge The parties reserve the right to stipulate to alternative dispute resolution.

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IX.

Related Cases Pending Before Other Judges or Courts None

X.
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Suggested Changes in Timing, Form or Requirements for Disclosure under Rule 26(a) The parties suggest no changes in the timing, form or requirements of Rule 26(a).

The parties have previously exchanged initial disclosure statements. XI. Proposed Deadlines Discovery: Discovery Cut-Off: Date for Filing Dispositive Motions: Expert Disclosure - Plaintiff Expert Disclosure - Defendant Final Pretrial Conference: June 30, 2006 August 14, 2006 N/A N/A 30 days before trial, or if dispositive motions are then pending, 30 days after the Court resolves all dispositive motions

XII.

Scope of Discovery ERISA limits evidence to the claim file absent extenuating circumstances.

XIII. Suggested Changes in Limitations on Discovery The parties agree that the discovery limitations for "standard track" cases, set forth in Rule 2.12, Local Rules of Practice for the District Court, shall apply. Because

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the Court's review on the merits of the case is limited to the administrative record, no discovery will be taken on the merits. The plaintiff may take limited discovery on the issue of whether a "conflict of interest" tainted the claim decision. XIV. Estimated date that the case will be ready for trial The parties anticipate that the case will be ready for trial in October 2006, and that the trial will require one (1) court day. The parties do not currently have specific suggestions for shortening the trial. XV. Jury Trial Pursuant to ERISA, the parties are not entitled to a jury. XVI. Settlement Conference Currently, the prospects for settlement are unknown. However, the parties would request the right to later obtain a settlement conference by filing a joint notice of a request for the same. XVII. Class Action Not anticipated XVIII. Unusual, Difficult or Complex Problems None foreseen. XIX. Other Matters which may Aid the Court in Resolving the Dispute No suggestions at this time. DATED: March 16, 2006 SURRANO LAW OFFICES

By:

s/John N. Wilborn Charles J. Surrano, III John N. Wilborn 3200 North Central Avenue, Suite 2500 Phoenix, Arizona 85012 Attorneys for Plaintiff

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By:

s/Brad K. Keogh, Esq. Brad K. Keogh, Esq. 3003 North Central Avenue, Suite 1200 Phoenix, Arizona 85012 Attorney for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on March 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing.

s/ John N. Wilborn

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