Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CARDONE v. EMPIRE BLUE CROSS & BLUE SHIELD

April 20, 1995

ALBERT A. CARDONE, Plaintiff, against EMPIRE BLUE CROSS AND BLUE SHIELD, HARRY C. BARRETT, PHILLIP BRIGGS, JOHN R. GUNN, THERESA A. INFANTINO, WILLIAM T. LEE, ROBERT O. LEHRMAN, WESLEY R. LIEBTAG, EDWARD J. MALLOY, JOHN MCGILLICUDDY, MICHAEL S. MODELL, HUGO MONNIG, JR., ROBERT O'BRIEN, FREDERICK WILKINSON, ROBERT D. WILSON, HAROLD WOLCHOK, JOHN ZUCCOTTI, HAROLD E. VOGT, WHITMAN BREED ABBOTT & MORGAN, SALVATORE R. CURIALE, INDIVIDUALLY AND AS SUPERINTENDENT OF THE NEW YORK STATE DEPARTMENT OF INSURANCE and JOHN DOES NOS. 1-20, Defendants.

7HAROLD BAER, JR., United States District Judge


The opinion of the court was delivered by: HAROLDBAER, JR.

HAROLD BAER, JR., United States District Judge

 This case arises from a 1993 public debate over the financial condition of New York's major non-profit health insurance provider. The claims of plaintiff Albert A. Cardone grow out of his precipitous and not entirely voluntary resignation as Chairman and Chief Executive Officer of Empire Blue Cross and Blue Shield in May 1993. A year later, Cardone sued Empire and sixteen of its current and former Directors ("Empire"), the New York Superintendent of Insurance Salvatore R. Curiale ("Curiale"), the law firm of Whitman, Breed, Abbott & Morgan, and John Does Numbers 1-20. The complaint contains twelve claims for relief regarding an eight-year relationship between Empire and Cardone. Excluding Cardone's claim against the law firm which is not contested here, the claims fall into three categories:

 (1) Empire's alleged failure to abide by agreements to pay Cardone severance and other benefits;

 (2) Curiale and Empire's alleged civil rights violations under 42 U.S.C. § 1983;

 (3) Empire and Vogt's alleged defamation, "false light," and prima facie torts involving statements to the press.

 Cardone moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on Claims 1, 2, 4, 5, and 11. Empire cross-moved on Claims 1-11. Harold E. Vogt, who succeeded Cardone as Chairman of the Board, cross-moved against Claims 8, 9, and 10. Two other Board members, Hugo Monnig, Jr. and Robert D. Wilson oppose Cardone's motion, and join the other defendants' cross motions against Claims 2, 3, 8, 9, 10, and 11. Curiale cross-moved against Claim 11. For the reasons stated below, all but one of Cardone's claims at issue here must be dismissed.

 THE FACTS

 A. Background

 In mid-May 1993, Empire was an insurance giant in trouble. Its capital had shrunk by $ 250,000,000 over the preceding two years. The national Blue Cross association had threatened to remove its affiliation. Empire had become the target of a U.S. Senate investigation for alleged mismanagement. And a state legislative report had asserted that Empire risked insolvency if it did not make "wholesale" changes in its operation. Vogt Affidavit ("Vogt Aff."), Ex. 1.

 Much criticism focused on Cardone, then CEO and Chairman of the Board. Viewed by some as "confrontational and autocratic" as well as extravagant, he was also accused of having withheld key information from the Board. Id. P 9; Ex. 2. On May 20, 1993, the Board announced its acceptance of Cardone's resignation, the election of Harold E. Vogt as interim Chairman, and the designation of a senior executive, Donald L. Morchower, as acting CEO. Id., PP 3, 10; Exs. 2, 3, 10. Vogt remained Chairman until July 1, 1993. In his last full year, Empire paid Cardone over $ 660,000. Cardone Affidavit ("Cardone Aff."), P 22. Most disquieting is my understanding that despite broad-based criticism of Cardone, extravagant compensation packages seem to have taken on a life of their own at Empire Blue Cross and Blue Shield.

 Empire's problems worsened when, in early June 1993, a New York Times reporter confronted Vogt with the charge that Empire's internal financial reports differed from those filed with the New York State Insurance Department. According to the Times, the relevant material had been sent to the paper anonymously. Vogt Aff. P 12; Ex. 8. Vogt asked Maroa Velez, Vice President of Empire's Audit Division, "to look into the matter." Id. PP 13-14; Exs. 5, 8. On June 16, 1993, Velez informed Vogt that "unsubstantiated differences" in the numbers had been "confirmed." Id. PP 15-17 & n.2; Ex. 5.

 On the same date, Empire issued a news release in which Vogt declared "that the Company's internal auditors today uncovered a discrepancy in a Schedule filed with the Superintendent of Insurance reporting on market segment performance for the years 1989, 1990 and 1991." The release did not mention Cardone. It recounted that Vogt had initiated the inquiry leading to this discovery and quoted him as saying that Empire had hired a law firm "to perform a thorough investigation of the matter . . . pending the outcome of [which] the Company could not speculate on the extent of involvement of any current or former employee." Id. P 19; Ex. 6.

 On June 17, 1993, the Times ran a story on the subject. Referring to the anonymous data it had received and its request that Vogt provide an explanation, it stated, without specific attribution: "Empire . . . acknowledged yesterday that the company had repeatedly sent erroneous data to New York State insurance regulators." The article quoted Vogt as saying: "It appears there was some discrepancy and it appears that we needed to address it." The article did not mention Cardone as the responsible employee. Rather, it cited the assertion in the June 16th news release to the effect that Empire would not speculate on the extent of any individual's involvement. It did, however, quote Vogt as saying that the regulators wanted to question Jerry Weissman, then Chief Financial Officer, regarding certain "missing data." Vogt Aff. PP 20-22; Ex. 8.

 Continuing the story on June 18, 1993, the Times used the phrase "false financial data" to describe the submissions to the New York State Insurance Department. According to the article, unnamed Empire officials stated they "misled state legislators" the year before "by using the data to help secure a major rescue plan for the company." The Times further reported that Vogt had "said an investigation was under way" and that "inaccurate information may have been given to legislators." The story quoted Vogt as stating: "'I'm concerned that it was misleading,'" and thereafter recounted Vogt's comment "that he was 'gravely concerned' that laws may have been broken." Id. PP 23-24; Ex. 9. That same day, Empire issued a news release stating that "Vogt announced that the Audit Committee of the Board will immediately assume jurisdiction over the investigation now underway of the discrepancies in data reported in earlier years by Empire to the New York State Department of Insurance." The release did not mention Cardone. Id. P 27; Ex. 10.

 C. The Benefits Claims

 Cardone first joined Empire in July 1985 at age 51 as Deputy Chairman, leaving the accounting firm of Deloitte, Haskins & Sells ("Deloitte") where he had been a partner since 1970. He and Empire signed a two-year employment contract. The contract included health insurance and other benefits. In the event Cardone retired between the ages of 55 and 65, the contract assured him the same health coverage and other benefits as he would receive if he retired at age 65. Cardone Aff. P 8. If Empire were to terminate Cardone, other than for misconduct, Empire promised to pay Cardone $ 325,000 per year for up to one year. Id.

 At its April 1987 meeting, the Board elected Cardone Chairman and CEO. The Board also approved a two-year partial extension of the 1985 contract, to give Cardone "certain" undefined severance benefits should he retire or be terminated after reaching 55 years of age in 1989.

 At its April 1992 meeting, the Board again re-elected Cardone Chairman and CEO. The Board adopted a separate benefits resolution far more detailed than any prior benefits resolution. Should Cardone's employment terminate before July 28, 1995, it provided that he would receive a lump sum severance payment ("Lump Sum Payment") to be calculated according to Empire's "Employee Pension Plan C," payable 30 days after his termination, but no later than July 28, 1995. Thus, Empire specifically ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.