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March 29, 1993

DuFort, Plaintiff,
Aetna Life Insurance Co., et al., Defendants.


The opinion of the court was delivered by: LOUIS J. FREEH


 In this action, plaintiff Harvey DuFort ("DuFort") claims that by refusing to pay the full amount due under his disability policy, defendants Aetna Life Insurance Company ("Aetna") and its employee, Robert Feury ("Feury"), *fn1" breached the terms of the policy, acted in bad faith, and intentionally inflicted emotional distress upon him. Defendants now move for summary judgment on the grounds that all of DuFort's claims are barred by the March 1989 release signed as part of DuFort's settlement agreement with Aetna. For the reasons stated below, the motion is granted in part and denied in part.


 In June 1986, DuFort, a former salesman for Matthew Bender & Co., Inc. ("Matthew Bender"), filed a claim for total disability benefits under his disability policy with Aetna, claiming that a back condition prevented him from working. Aetna commenced payments under the policy. In January 1987, however, DuFort was examined on Aetna's behalf by Dr. Irving Etkind, who determined that DuFort was not totally disabled within the meaning of the policy. *fn2" (Williams Decl. Ex. D). Aetna also received information from Matthew Bender that DuFort's employment had ended for reasons other than disability. Accordingly, Aetna discontinued DuFort's benefits as of January 12, 1987. (Williams Decl. Ex. E).

 Between June 1986 and August 1988, DuFort submitted numerous physicians' statements to Aetna, in an effort to convince Aetna that his back condition did in fact qualify as a total disability under the policy. (Williams Decl. Ex. H-1 - 5). DuFort also provided Aetna with a letter dated March 14, 1988 from the division of the company handling his medical claim, which stated that DuFort was totally disabled. (Williams Decl. Ex. I).

 In response to DuFort's submissions, Aetna wrote him several times, stating that it would reconsider DuFort's claim if he would provide information concerning his employment and would submit to a second medical examination. (Williams Decl. Exs. F, G, J and K). There is no evidence in the record indicating any response by DuFort to these requests. Feury also contacted DuFort by telephone and made an offer to settle DuFort's claim for $ 25,000, but DuFort declined that offer. Instead, in December 1988, DuFort contacted the New York State Insurance Department to complain about Aetna's handling of his claim. (Williams Decl. Ex. L).

 On or about March 3, 1989, Feury again contacted DuFort by telephone. The parties dispute what happened during that conversation. DuFort alleges that Feury offered him $ 102,000 on a "take it or leave it basis," not allowing DuFort even a few days in which to consider the offer. DuFort also claims that Feury told him, " we are going to make this thing drag . . . and if you go to court, it will take years to be resolved, and from what I understand, from where you live and what I know about you, you will become homeless and hungry." (Friedman Aff. Ex. 1 at 51-53).

 Feury denies making any of those statements and claims that it was DuFort who proposed the $ 102,000 settlement. (Williams Decl. Ex. W-2 - W-6). Neither party disputes, however, that as a result of the March 3, 1989 discussion, Aetna and DuFort agreed to settle DuFort's claim for a lump sum payment of $ 102,000. (Williams Decl. Ex. N).

 As part of the settlement, on March 16, 1989, DuFort executed a general release which provided that DuFort and his

heirs, executors, administrators, successors, and assigns release, acquit and forever discharge [the] AETNA LIFE INSURANCE COMPANY and its agents, servants and employees, and all other persons, firms, corporations, associations or partnerships of, and from, any and all claims, actions, causes of action, demands, damages, costs and expenses and compensation whatsoever, which the undersigned now has or may hereafter accrue on account of or in any way growing out of any and all claims under Individual Disability Policy NCX 4858, which policy was issued to HARVEY DUFORT by said AETNA LIFE INSURANCE COMPANY on June 26, 1979. Said Policy NCX 4858 is hereby surrendered for cancellation.

 [(Williams Decl. Ex. P)].

 Approximately three to six days after signing the release, DuFort alleges that he called Aetna's office twice in order to request that the agreement be cancelled. Aetna refused that request. (Friedman Aff. Ex. 1 at 112-114). DuFort subsequently picked up and spent the settlement funds.

 Since February 1989, DuFort has been receiving treatment from a psychiatrist, Dr. Martin Hurwitz ("Hurwitz"). Hurwitz has diagnosed DuFort as a psychotic depressive and has stated in his deposition testimony that this condition prevents DuFort from exercising reasoned judgment in business matters. (Friedman Aff. Ex. 8 at 7). According to Hurwitz, DuFort has been in this condition since at least November 1988, ...

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