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MAGEE v. PAUL REVERE LIFE INS. CO.

February 17, 1997

ROBERT C. MAGEE, Plaintiff,
v.
THE PAUL REVERE LIFE INSURANCE COMPANY, Defendant.


Hon. Arthur D. Spatt, United States District Judge


The opinion of the court was delivered by: SPATT

SPATT, District Judge:

 This diversity action arises from the claims of the plaintiff, Robert C. MaGee ("MaGee" or the "plaintiff"), against the defendant, The Paul Revere Life Insurance Company ("Paul Revere" or the "defendant"), as the result of the parties' dispute as to whether the plaintiff is entitled to certain disability insurance benefits. MaGee alleges that as a result of Paul Revere's decision to deny him benefits, he is entitled to damages for breach of contract, violation of New York General Business Law § 349, anticipatory breach, breach of a waiver of premiums clause, intentional infliction of emotional distress and prima facie tort. MaGee seeks compensatory and punitive damages and a declaration that he is entitled to benefits. Presently before the Court is the defendant's motion to dismiss the General Business Law, anticipatory breach and the tort claims pursuant to Fed. R. Civ. P. 12(b)(6) and to strike the prayer for punitive damages.

 I. Background

 The following facts are taken from the complaint. The plaintiff, Robert C. MaGee, is resident of Garden City, New York. The defendant, The Paul Revere Life Insurance Company is Massachusetts corporation authorized to do business in the State of New York.

 From October 1, 1988 until January 13, 1992, MaGee was employed as the President and Chief Executive Officer of Lane Office Equipment, a "furniture company" in Manhattan. On November 7, 1988, the defendant issued to MaGee "Disability Income Insurance Policy, No. 0102368238" (the "policy") which provides for lifetime disability payments in the event the plaintiff suffers a "total disability in his occupation." According to the complaint, the term "total disability" is defined as an "inability to perform the important duties of his occupation as President and Chief Executive Officer of a wholesale furniture company located in New York City." The policy provides for a monthly payment of $ 6,250 in the event the plaintiff suffers a total disability. The policy also obligates MaGee to pay annual premiums in the amount of $ 4,220.64 for all periods during which he is not disabled. The plaintiff alleges that he has paid the required premiums at all relevant times.

 According to Dr. Rashkin's medical reports, MaGee's depression is the result of job related stress and "a severe accident where the automobile in which MaGee and his family were travelling rolled over several times." The complaint describes MaGee as suffering from "classic symptoms of depression, including hopelessness, feelings of inadequacy, agitation, dysphoria, and hypersomnia."

 In October 1992, the plaintiff experienced a "second depressive episode." As a result, he was hospitalized from October 16, 1992 until November 3, 1992 at South Oaks Hospital where he was treated by Eugenio Tassy, M.D. for "depression." Dr. Tassy remains the plaintiff's treating psychiatrist.

 According to the plaintiff, the defendant's unlawful conduct, which interfered with the plaintiff's treatment, began in August 1992, when

 
an agent of Paul Revere wrote a letter to Dr. Rashkin, MaGee's treating psychologist, with the intent to interfere in the physician [sic] patient relationship and to induce Dr. Rashkin to change his opinion. In that letter, Paul Revere intentionally, improperly and maliciously misrepresented facts concerning MaGee's claim and made disparaging remarks impugning MaGee's reputation.

 In July 1994, at the request of the defendant, the plaintiff met with James L. Maher Jr., M.D., a consulting psychiatrist employed by Paul Revere. MaGee alleges, upon information and belief, that Dr. Maher subsequently contacted Jerome L. Missel, M.D., a Boston psychiatrist "to obtain additional information about MaGee in an attempt to reach a medical opinion favorable to Paul Revere." Dr. Missel's relationship to MaGee, if any, is not specified. In any event, the plaintiff alleges that in early 1995,

 
. . . Dr. Missel maliciously and intentionally interfered with MaGee's treatment and his relationship with his treating professionals by directly contacting MaGee's treating physicians, Drs. Tassy and Rashkin, with the intent to influence their opinions. In addition, Dr. Missel misrepresented, among other things, the substance of settlement negotiations entered into between MaGee and Paul Revere.
 
[] Dr. Missel's improper contact with Drs. Tassy and Rashkin was followed by memoranda from Dr. Missel to Drs. Tassy and Rashkin. In each case, the memorandum misrepresented the statements of MaGee's treating professionals in their prior interviews with Dr. Missel. Each memorandum attributed statements and opinions to MaGee's treating professional which were both untrue and unfavorable to MaGee.

 On July 20, 1995, the plaintiff met with Robert Lloyd Goldstein, M.D., a consulting psychiatrist employed by Paul Revere who conducted an examination "lasting about 45 minutes." According to the complaint, on August 24, 1995, based on Dr. Goldstein's report, the defendant determined that no further benefits would be paid under the policy and no benefits have been paid since that date.

 On November 7, 1995, the plaintiff commenced this action. On December 18, 1995, the defendant served its answer. By stipulation dated February 7, 1996, the parties consented to the filing of an amended complaint alleging the following causes of action based on the events set forth above: (1) breach of contract; (2) anticipatory breach; (3) breach of waiver of premiums clause; (4) declaratory judgment; (5) violation of New York General Business Law § 349; (6) intentional infliction of emotional distress; and (7) prima facie tort.

 Paul Revere moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim, the causes of action for anticipatory breach, violation of the General Business Law, intentional infliction of emotional distress and prima facie tort and to strike the plaintiff's prayer for punitive damages. The plaintiff opposes the ...


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