The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, JR., U.S.D.J.
This action arises from the denial of benefits by Colonial Life Insurance Company of America ("Colonial") under a health insurance policy held by Sheldon Katz ("Katz"). Katz brings claims for breach of contract, asserting that Colonial improperly denied benefits under the policy for nursing services provided to Katz' wife, Marcie Katz, and for gross negligence in the drafting of the contract in question.
Before this Court are cross-motions for summary judgment, pursuant to Fed.R.Civ.P. 56. For the reasons set forth, plaintiff's motion is denied and defendant's motion is granted.
A motion for summary judgment must be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c); see H.L. Hayden Co. v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1011 (2d Cir. 1989). It is the burden of the moving party to demonstrate initially the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). The burden then shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). Affidavits in support or opposition of a summary judgment motion must be made on personal knowledge, setting forth facts which would be admissible at trial by an affiant who is competent to testify to the matters within the affidavit. Fed.R.Civ.P. 56(e). A showing that there is a genuine issue of fact for trial requires a showing sufficient to establish the existence of every element essential to the party's case, and on every element for which the party will bear the burden of proof at trial. In deciding whether there is a genuine issue for trial, "the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Where the nonmovant's evidence is merely conclusory, speculative or not significantly probative, summary judgment should be granted. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12-15 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
The vast majority of the facts in this case are undisputed. As employee, president and sole stockholder of Shelly Katz Radio Sales Inc., Katz obtained group health coverage for himself, his wife and his child from Colonial, a subsidiary of Chubb Life Insurance of America ("Chubb"), which is a subsidiary of The Chubb Corporation. Coverage under the policy, # 163676-000 ("the policy"), which is an employee benefit plan under ERISA, began on May 1, 1993, with renewal on May 1 of each subsequent year. Under the policy each policyholder is given an individual "Certificate of Coverage" which outlines the specific terms of coverage. The dispute here concerns three provisions of the Certificate of Coverage issued to Katz.
Under the caption "Benefits Payable," the following language is found:
After application of the cash deductible (if it applies), the following benefits are payable:
80% of the first $ 5,000 of any covered charges for private duty nursing services administered by a registered or practical nurse, plus 100% of any excess over $ 5,000.
In order to determine what constitutes a "covered charge," Section 5 of the policy contains the following definition under the heading "Covered Medical Expenses:"
[Covered charges] are the usual and customary charges for services and supplies which are:
a. ordered by a physician;
b. necessary for the treatment of an illness ...