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March 24, 1998


The opinion of the court was delivered by: SCULLIN

 The Plaintiffs, Joseph Pallozzi and Lori Pallozzi, bring this action pursuant to Title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12182(b)(2)(A)(i), and various provisions of state insurance law alleging that the Defendant, Allstate Life Insurance Company of New York, discriminated against them because of their mental illness by refusing to issue a joint life insurance policy. The Plaintiffs request the following relief: (1) an order directing the Defendant to issue an insurance policy; (2) an order directing the Defendant to make reasonable modifications to its policies, practices, or procedures so that disabled applicants have access to life insurance; and (3) other appropriate relief. Presently before the Court is the Defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 Factual Background

 The Plaintiffs have been diagnosed as suffering from major depression for which both have received counseling, medication, and inpatient treatment in the past. *fn1" Joseph Pallozzi additionally has agoraphobia, *fn2" but is not under current treatment for either ailment. Lori Pallozzi has also been diagnosed with borderline personality disorder and is currently seeing a psychiatrist twice a year and a therapist every two weeks, and is also taking the medication Zoloft.

 On October 4, 1996, the Plaintiffs applied for a joint life insurance policy in the amount of $ 65,000 from the Defendant and were issued a Temporary Insurance Agreement the same day. On November 22, 1996, the Defendant canceled the agreement and refused to issue a policy based on the medical information provided by the Plaintiffs' psychiatrist. When the Plaintiffs asked what the basis for the rejection was, the Defendant gave the Plaintiffs a copy of their application and referred them to their psychiatrist for further information.

 The Plaintiffs filed this action asserting that the Defendant's refusal to issue the joint policy was because of their disability and in violation of the public accommodations provision of the ADA. The Defendant has brought the present motion to dismiss for failure to state a cause of action on the ground that Title III of the ADA does not apply to an insurance underwriting decision not to issue a life insurance policy based on the increased risks associated with major depression, borderline personality disorder, and agoraphobia.


 I. Motion to Dismiss Standard

 When confronted with a motion to dismiss a complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the factual allegations in the complaint as true and in the light most favorable to the plaintiff. See Fed. R. Civ. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A complaint should not be dismissed unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 II. Title III of the ADA

 Title III of the ADA proscribes discrimination by an owner or operator of a "place of public accommodation" against those individuals with a disability, that is individuals who have "a physical or mental impairment that substantially limits one or more of the major life activities . . . ." 42 U.S.C. § 12182(a); 42 U.S.C. § 12102(2).

 For the purposes of this motion, the Defendant does not dispute whether major depression, agoraphobia, and borderline personality disorder are recognized disabilities under the ADA. Furthermore, the Defendant admits that it refused to issue the requested life insurance policy based on the medical history of the Plaintiffs.

 Title III enumerates various categories of a "place of public accommodation," and the federal regulations define a "place of public accommodation" as a "facility" which itself is defined as "buildings, structures, sites . . . ." See 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. Section 12182(a) states that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Discrimination under Title III includes the failure to make reasonable modifications in the place of public accommodation's policies, practices, and procedures in an effort to afford equal opportunity for a disabled individual to enjoy its goods and services unless such modifications would fundamentally alter the nature of the goods or services. See 42 U.S.C. § 12182(b)(2)(A)(ii).

 The Defendant argues that Title III of the ADA is meant to address physical structures which persons would enter for the purpose of using the goods or services provided therein. While the physical structure of an "insurance office" would be covered under the Act, neither the insurance policy nor an insurance company is a "place of public accommodation" under the ADA because neither is a physical structure. See 42 U.S.C. § 12181(7)(F). The Defendant contends that Title III merely requires that disabled people be provided with physical access to the goods and services offered and does not purport to regulate the underwriting practices of insurance companies. Furthermore, the Defendant maintains that the "safe harbor" ...

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