E. If plaintiff were able to return successfully, but to a lower paying job, then plaintiff's disability payments would be offset by the amount that his monthly benefit plus new salary exceeded his indexed pre-disability income. Id.
On July 10, 1991, while plaintiff was still receiving his long term disability benefits, defendant sent a letter to plaintiff which stated "UNUM is willing to offer you $ 85,000 as full and final settlement of your claim for Long Term Disability benefits. . . . This offer is in effect through, but not beyond July 31, 1992." Item 1, Exhibit F. Plaintiff did not accept this offer and continued to receive benefits without controversy.
Three years later, while plaintiff was still receiving his long term disability benefits, defendant sent plaintiff a letter on July 13, 1994 stating "UNUM is willing to offer you $ 150,000 as full and final settlement for your claim for disability benefits." Item 1, Exhibit G. Once again, plaintiff did not accept this offer and continued to receive benefits.
On September 6, 1994, defendant informed plaintiff by letter that "We have completed our review of your UNUM disability claim and . . . . our review has concluded that we are unable to continue your benefits." Item 1, Exhibit H. Defendant based its decision on a medical report which stated that plaintiff "can perform [his] sedentary occupation on a full-time basis." Id.
Plaintiff immediately appealed this denial of his benefits. Item 1, Exhibit I. His primary physician, Dr. John Ricotta, also sent a letter to defendant stating that plaintiff's medical condition had remained unchanged since March 14, 1991. Item 1, Exhibit J. On February 13, 1995, Dr. Ellen Dickinson informed defendant that plaintiff was still suffering from a variety of psychiatric disorders and that he "is currently totally disabled." Item 1, Exhibit K.
On May 23, 1995, defendant informed plaintiff that it had approved "benefits for disability due to mental illness." Item 1, Exhibit L.
On June 27, 1995, defendant informed plaintiff that it had completed review of his disability claim and that "our review has concluded that we are denying all liability on your claim as of 2/95." Item 1, Exhibit M. Defendant's reason for the denial was that "we have no evidence of continued disability beyond 2/95." Id.
On August 15, 1995, defendant informed plaintiff that "we have reviewed the additional information you recently sent us and regret that this was not sufficient to reverse our previous decision." Item 1, Exhibit N.
On October 31, 1995, defendant informed plaintiff that its June 27, 1995 denial of all benefits was final and "appropriate." Item 1, Exhibit O.
At issue are defendant's settlement offers given to the plaintiff on July 10, 1991, and July 13, 1994, while plaintiff was still receiving disability benefits. Item 1, Exhibits F and G. Defendant argues that because evidence of settlement offers is not admissible under Federal Rules of Evidence ("FRE") 408, the court should exclude these two settlement offers from evidence. Item 12. Defendant contends that this evidence should be stricken from the complaint and that plaintiff should be precluded from introducing evidence of the two settlement offers, or anything related to them, at the trial of this action. Id.
Defendant bases its argument on FRE 408, "Compromise and Offers to Compromise," which states in relevant part:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.