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SAMMARCO v. BOARD OF TRUSTEES

June 24, 2004.

MICHAEL SAMMARCO, Plaintiff,
v.
BOARD OF TRUSTEES, LOCAL 812 HEALTH FUND, Defendant.



The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge

OPINION AND ORDER

This action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., is brought by plaintiff Michael Sammarco ("Sammarco"), a participant in the Local 812 Health Fund ("Fund"), to secure health benefits that the defendant Trustees ("Trustees") declined to provide following an accident on January 10, 2002 ("Accident"), in which he was seriously injured. The parties previously consented to my exercise of jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). (See Docket No. 2). They now have cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons detailed below, the Trustees' motion is granted, Sammarco's motion is denied, and the complaint is dismissed. I. Factual Background

The following facts are undisputed. In 2002, Sammarco was employed by his own corporation, which was an independent Pepsi Cola distributor. (See Sammarco Aff. ¶¶ 3, 7). As such, he was a member of the Local 812 health plan ("Plan"), which is an ERISA benefit plan. (See id. ¶ 7; Warner Aff. Ex. A at 53). Although Sammarco had the option of also securing Workers' Compensation coverage, his accountant advised him that New York law permits an owner employer not to participate in that coverage. (Sammarco Aff. ¶ 7). He therefore did not purchase any Workers' Compensation coverage for himself. (See id. ¶ 10).

  The Fund's Summary Plan Description which was in effect on the date of the Accident and when Sammarco submitted his claims was the version revised and restated as of June 1, 1996 ("1996 SPD"). (See id. ¶ 7; Warner Aff. ¶ 8, Ex. A). The 1996 SPD contained nearly forty coverage exclusions. (See Warner Aff. Ex. A at 22-25). The third of these exclusions ("Exclusion 3") provided that the Fund would not pay

 
[c]harges arising out of or in the course of any occupation for wage or profit, or for which the covered person is entitled to benefits under any Worker's Compensation or Occupations Disease Law, or any such similar law[.]
(Id. at 22).
  Following the Accident and Sammarco's submission of his claims, the Fund revised its Summary Plan Description to clarify the Plan's benefits and exclusions effective January 1, 2003 ("2003 SPD"). (See id. Ex. G at 1-2). The 2003 SPD contained a third exclusion substantially similar to Exclusion 3. (See id. at 24). However, the 2003 SPD further described the relationship between the Fund's health benefits and Workers' Compensation coverage as follows:
If you incur a work related injury or illness, any claims related to that injury or illness must be submitted through your employer for Workers' Compensation coverage. No benefits are payable by the Fund for claims related directly or indirectly to a work-related injury or illness unless the claim is denied by Workers' Compensation. Every participant must be covered by Workers' Compensation regardless of whether the law permits a voluntary exemption.
. . .
Where Workers' Compensation would cover your injury or illness and you do not have Workers' Compensation coverage, the Fund will consider your claim as if you did have it and determine benefits accordingly.
(Id. at 29-30) (emphasis added). The 1996 SPD did not contain any comparable explanatory language.

  On the date of the Accident, Sammarco returned to the Pepsi Cola plant from his delivery route at approximately 5:30 p.m. after a twelve-hour shift. (Sammarco Aff. ¶ 3). As was his custom, Sammarco parked his truck at the plant so that Pepsi Cola employees could reload it overnight. (Id.). Sammarco also completed certain necessary paperwork. (Id.). By about 6:15 p.m., his work for the day was done. (Id.).

  At the time, Sammarco was in the process of planning a confirmation party for his son. (Id. ¶ 5). Accordingly, Sammarco went into a "back area" of the plant in an effort to locate Jerry Troyanos, a Pepsi Cola employee who "had a band" (Id.). Although Troyanos was on vacation, Sammarco contacted him by telephone and agreed to meet at the plant at 7 p.m. (Id.; Troyanos Aff. ¶¶ 4-5).

  At approximately 7:15 p.m., while he was in the back area of the plant to meet with Troyano to discuss his need for a band, Sammarco slipped on an oil slick on the floor near several leaking "hi-los." (Sammarco Aff. ¶ 6; Troyanos Aff. ¶ 5). Sammarco suffered a concussion, a right shoulder dislocation, and a collapsed lung, among other injuries, and he underwent surgery. (Sammarco Aff. ¶ 8).

  Sammarco and his health care providers submitted bills to the Fund for his medical care, but the Plan Administrator ("Administrator") denied payment.*fn1 (Id. ¶ 9). At the time, Sammarco's understanding was that the denial was based upon Exclusion 3, even though he did not have Workers' Compensation coverage. (Id. ¶ 10). He later learned from his attorneys that the Fund was rejecting his claims because he "could have obtained [W]orker[s'] [C]ompensation had [he] wanted to." (Id.).

  On May 17, 2002, Sammarco's counsel wrote to the Administrator in an effort to reverse the Administrator's prior decision. In his letter, counsel stated that Sammarco

 
was injured while at the Pepsi Cola plant but he is not an employee of Pepsi Cola. He therefore has no [W]orkers [C]ompensation benefits available in connection with the injuries he suffered in his [Accident.]
(Saunders Decl. Ex. 1). Counsel also threatened to file a lawsuit unless the Administrator corrected its error "immediately." (Id.).

  On June 4, 2002, counsel again wrote to the Administrator. (See id. Ex. 2). This second letter noted the lack of any response to the May 17th letter. (Id.). Counsel also observed that he previously had advised the Administrator that Sammarco "was an independent trucker who happened to be injured in the Pepsi Cola plant while picking up a load of goods for his distribution." (Id.) (emphasis added).

  Finally, on July 31, 2002, counsel wrote to Pat Paolucci, an officer of the Administrator. (See id. Ex. 3). In that letter, counsel complained that Sammarco's claim had been denied in the mistaken belief that "he should receive [W]orkers' [C]ompensation." (Id.). Counsel indicated that one of his partners ...


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