United States District Court, N.D. New York
August 2, 2004.
COMMUNITY GENERAL HOSPITAL, INC., Plaintiff,
ANTHONY E. ZEBROWSKI, Defendant. ANTHONY E. ZEBROWSKI, Defendant/Third-Party Plaintiff, v. UNIVERA HEALTHCARE, First Third-Party Defendant. ANTHONY E. ZEBROWSKI, Defendant/Third Party Plaintiff, v. CIGNA BEHAVIORAL HEALTH, INC., Second Third-Party Defendant.
The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
MEMORANDUM-DECISION AND ORDER
This action began as a simple collection matter in Syracuse
City Court. Community General Hospital ("Community") sued Anthony
E. Zebrowski, defendant/third-party plaintiff in this action, for
the unpaid balance on medical services rendered to him. See
Affidavit of Kevin G. Horbatiuk (Dec. 30, 2003), exh. A thereto.
It has mushroomed into a federal case, however, potentially
implicating a federal statute, the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Id.
at ¶ 2(b).
Plaintiff Zebrowski "was a covered member of the Employee
Welfare Benefit Plan ("the Plan") provided by Lockheed Martin for
the benefit of his [sic] qualified employees." Affidavit of
Jeffrey A. Harr (Dec. 30, 2003), at ¶ 3. This was a self insured
managed health care plan. Lockheed's Plan specifically excluded from coverage "services and supplies which are not
medically necessary for the diagnosis or treatment of a disease
or injury[.]" Id., exh. A thereto at 19 (emphasis in original).
The second third-party defendant, CIGNA Behavioral Health Inc.
("CIGNA") was not a party to the Plan. It had a separate
agreement with Lockheed Martin wherein it was "the claim
administrator of the mental health insurance piece" of the Plan
("the CIGNA Agreement"). Id., and exh. B thereto. Under the
terms of that Agreement, Lockheed delegated to CIGNA "the sole
authority to make determinations on behalf of [Lockheed Martin]
with respect to benefit payments under the Plan and to pay such
benefits." Id. at ¶ 3(b) (emphasis added).
"On November 17, 1998 Zebrowsk[i] was admitted to Community
. . . with a diagnosis of major depression with severe recurrent
psychotic features." Id. at ¶ 4 (citations omitted), and exh. C
thereto at 0302; see also Affidavit in Opposition to Motion
for Summary Judgement by Second Third Party Defendant Anthony E.
Zebrowski (Jan. 21, 2004), at ¶ II(3). Because Zebrowski's
"thought processing remain[ed] impaired[,]" and, among other
things, he "had to be placed in 4-pt [four point] restraints
after [he] became violent and attacked staff[,]" CIGNA authorized
additional inpatient care through November 24, 1998. Harr Aff.,
exh. C. thereto at 0303; see also id. at 0279; and
Affidavit of Anthony E. Zebrowski (Jan. 20, 2004) at ¶ III(4)
One day later, on November 25, 1998, Zebrowski's treating
physician Dr. Levine was notified that Zebrowski's wife did not
want him to return home. That news threw Zebrowski into a "real
depression." Harr Aff., exh. C thereto at 0279 and 0303. In Dr.
Levine's opinion, at that point Zebrowski could not "be trusted to be on his own[.]" Id. at 0303. Dr. Levine also noted that
Zebrowski had "a history of 3 real serious attempts [at
suicide]." Id. In light of the foregoing, in the discharge
summary Dr. Levine stated that "[i]t was clear to [him] that this
puts this man [Zebrowski] in severe risk and [Levine] could not
in good conscious discharge [Zebrowski] without adequate housing
and a follow-up plan in place." Id. at 0216; see also
Zebrowski Aff. at ¶ II(5) (citation omitted).
Despite the foregoing, Mr. Harr, CIGNA's Assistant Vice
President, Compliance and Performance and Improvement, avers that
"[c]linical documentation at that . . . time did not meet
[CIGNA's] level of care guidelines for further inpatient care."
Harr. Aff. at ¶ 8 (emphasis added). Nonetheless, CIGNA authorized
one more day of inpatient care, through November 26, 1998, "based
upon Dr. Levine's concern that Zebrowsky [sic] may harm himself
over the Thanksgiving weekend." Id. (citations omitted); see
also id., exh. C thereto at 0304, 0279 and 0280.
Once Zebrowski found alternative housing on his own, he was
discharged on December 11, 1998. Id., exh. C thereto at 0216.
In the interim, however, CIGNA determined that after the one
additional inpatient day it authorized, November 26, 1998, it
would not provide Zebrowski coverage for any further inpatient
stay, i.e. it was not "medically necessary." Id. at 0305.
This was based upon the assessment by CIGNA's psychiatrist, Dr.
Karauysuf, who found that Zebrowksi did not meet CIGNA's criteria
for such a stay. More specifically, Dr. Karauysuf stated that
CIGNA could not authorize any more inpatient care in the absence
of such symptoms as violent threats and behavior, suicidal
threats and behavior and psychosis." Id. Dr. Levine conceded
that Zebrowski did not meet any of these criteria. Id. at 0305
and 0280. In advising Dr. Levine that CIGNA would not provide inpatient
coverage beyond November 26, 1998, CIGNA further advised him of
its "expedited appeals process[,]" and Levine stated that he
"definitely want[ed] to exercise [that] right[.]" Id. at 0305;
and Zebrowski Aff. at ¶ II(9) (citations omitted). Levine did not
do that, however, because he thought it would be "a waste of his
time[.]" Id. at 0305. Levine did agree to send Zebrowski's
chart to CIGNA for a "retro" review because he was not releasing
Zebrowski yet. Id. at 0305. There was no appeal at that time
however because CIGNA never received any of Zebrowski's medical
records. Id. at 0280.
On December 4, 1998, while still at Community, Zebrowski
contacted CIGNA himself questioning its denial of coverage for
his stay there beyond November 26, 1998. Id. at 0280. Zebrowski
was advised that at that point the only way for an appeal was if
Community sent CIGNA his records, but again, that was never done.
Id. Slightly over a year later, on December 14, 1999, CIGNA
received a letter from Dr. Levine requesting an appeal. Id. at
0025 and Zebrowski Aff. at ¶ III(4). Evidently CIGNA never
responded to that request. Zebrowski Aff. at ¶ III(4).
Several years later, according to Zebrowski he again contacted
CIGNA on August 15, 2001, requesting that it pay his hospital
bill in its entirety. Zebrowski Aff. at ¶ III(1). A couple of
months later, on October 24, 2001, Zebrowski called CIGNA to
inform it that he was being sued by Community for payment. Harr
Aff., exh. C thereto at 0100. Even though there had been no
appeal process earlier because Zebrowski's chart was never sent
to CIGNA, it agreed that he "did not get due process[.]" Id. at
0100 and 0321. Thus, even though this matter was "very old[,]"
CIGNA told Zebrowski that if Community would send his chart, then CIGNA would undertake a "standard review." Id. Its review would
be limited to 14 of the 23 days of Zebrowski's inpatient stay for
which CIGNA had declined coverage, i.e. November 27, 1998
December 11, 1998 Id. 0100-0101.
On appeal, as it had previously, CIGNA stated that Zebrowski
met its criteria for inpatient stay through December 3, 1998, but
not after that. Id. at 0322; and Zebrowski Aff. at ¶ III (7).
CIGNA denied coverage after that date through Zebrowski's actual
discharge date of December 11, 1998. Id. During the next level
of the appeal process CIGNA adhered to its prior decision, but it
provided additional reasoning.
CIGNA justified its denial by noting that on December
4th-7th, and on the 10th, Zebrowski was out on day
passes. Id. at 0327. He also had two day passes on December
8th. Id. Zebrowski was out on supervision during that time,
driving his car, and looking for housing. Id. Zebrowski
acknowledges that he engaged in those activities while out on the
day passes. Zebrowski Aff. at ¶ II(8).
Not surprisingly, CIGNA observed that "[i]t was plainly
documented in the hospital record that [plaintiff's] stay was
extended to allow him to look for housing, per the discharge
summary." Harr Aff., exh. C thereto at 0327. CIGNA thus concluded
that plaintiff "was not meeting the . . . medical necessity
guidelines in effect at the time on 12/4 or any of the subsequent
hospital days." Id. Moreover, CIGNA further noted that because
plaintiff "was simply awaiting appropriate housing, authorization
of inpatient level of care [wa]s specifically excluded." Id.
(citation omitted). On the basis of the foregoing, CIGNA found
that it was not "medically necessary" for plaintiff to remain in
Community's inpatient unit from November 27 December 11, 1998.
Accordingly, CIGNA held steadfast in its initial decision that it
had no obligation to provide coverage during that time.
The City Court collection matter between Community and
plaintiff, mentioned earlier was discontinued by stipulation on
November 4, 2002. Horbatiuk Aff., exh. E thereto. In early
February 2003, also in Syracuse City Court, Zebrowski commenced
an action as a third-party plaintiff against Univera
Healthcare,*fn1 as the first third-party defendant, and
against CIGNA as the second third-party defendant. Shortly
thereafter CIGNA removed the case to this court. Id., exh. B
thereto. On July 23, 2003, pursuant to Fed.R.Civ.P. 41(a)(1),
the parties agreed to "stipulate to dismiss this action in its
entirety and with prejudice as against . . . Univera[.]" Id.,
exh. F thereto. In light of the foregoing, the only remaining
claims are those by Zebrowski against CIGNA.
After removal Zebrowski filed an amended third party complaint
against CIGNA. Although not a model of clarity, broadly reading
this pro se complaint it appears that Zebrowski is alleging
that CIGNA breached an employee welfare benefit plan which
plaintiff's employer, Lockheed Martin, provided to its employees.
In particular, plaintiff alleges that "[t]he actions of [CIGNA]
in refusing to cover the subject balance were in clear
contravention, violation and breach of the terms and provisions
of subject policy coverage." Id., exh. C thereto at ¶ 23
(emphasis added). This language is mirrored in plaintiff's
opposing affidavit: "The actions of CIGNA in refusing to cover
the subject balance were in clear contravention, violation and
breach of the terms and provisions of the subject policy
coverage and benefits allowed for [him]." Zebrowski Aff. at ¶
III(9) (emphasis added). In addition to this claim, which the court construes as one for
breach of contract,*fn2 Zebrowski alleges that CIGNA's
"actions were reckless, intentional, tortuous and wrongful and
have subjected [him] to several years of totally unnecessary,
unwarranted and avoidable, apprehension, inconvenience,
significant trouble and suffering." Id. A liberal reading of
this claim, especially when taken together with plaintiff's
allegations that he "suffered pain and suffering . . . in the
amount of $500,000" as a result of CIGNA's denial of medical
coverage for part of his inpatient stay at Community, supports
the conclusion that he is asserting claims for negligent and
intentional infliction of emotional distress. See id.
Finally, plaintiff is seeking "overdue payments with interest
at the rate of two percent per month per S [sic] 5106 of the New
York Insurance Law." Id. (emphasis added).
CIGNA is moving for summary judgment pursuant to Fed.R. Civ.
P. 56 on three grounds. First, CIGNA claims that it "bears no
liability to . . . ZEBROWSKY [sic] for the plan benefits which he
seeks." CIGNA Memo. at 3. Second, CIGNA maintains that
Zebrowski's claims for "emotional distress" are state law based
and hence preempted by ERISA. Id. at 4. Third, CIGNA posits
that its denial of "benefits was not arbitrary and capricious."
Id. at 7.
Zebrowski filed an "affidavit in opposition to motion for
summary judgment by second third party defendant," but not a
memorandum of law or a Statement of Material Facts as Local
Rule 7.1 requires. Given Zebrowski's pro se status the court will
overlook his non-compliance with this Local Rule. Cf. United
States v. Hernandez, No. 99 CR. 73, 2002 WL 31098505, at *4 (S.D.N.Y.
Sept. 18, 2002) (because defendant's motion appeared to have been
drafted without "significant assistance from an attorney[,]"
court applied the "liberal construction" standard to his motion).
In response to CIGNA's motion, Zebrowski avers that CIGNA
breached the "policy" when it refused to cover the balance due to
Community as a result of his extended inpatient stay. Zebrowski
at ¶ III(9) (emphasis added). As mentioned above, plaintiff's
complaint as well as his opposing affidavit can easily be read as
asserting breach of contract. Elsewhere in his opposing affidavit
Zebrowski seems to contradict that position by arguing that ERISA
does not preempt his claims because the issue is not CIGNA's
denial of coverage. See id. at ¶ V(1). Rather, according to
Zebrowski, "the main issues" are the "pain and suffering" which
he allegedly incurred due to his in-patient stay at Community and
CIGNA's "abandonment and disregard leaving him to fend for
himself at a time of great vulnerability including potential
self-destruction." Id. Presumably plaintiff is referring to his
inpatient stay beyond that for which CIGNA would provide
coverage. In any event, Zebrowski further avers that "[t]he
delays and failure to make information known to [him] about the
actions taken place were negligent and injurious." Id. Although
rather vague, essentially this claim appears to be one for
improper processing of his claim, including the appeal.
Zebrowski next alleges that CIGNA acted in bad faith, and
continues to do so by withholding court "approved"
discovery.*fn3 Id. at ¶ V(2). Apparently Zebrowski believes that CIGNA was under some court ordered
obligation to provide him with the agreement between CIGNA and
Lockheed. Zebrowski, argues that this purported bad faith brings
his claim outside the scope of ERISA and instead such claim is
"governed by the common tort law of the State of New York." Id.
Insofar as CIGNA's request for costs, disbursements and
attorney's fees, Zebrowski responds that there is no basis for
such an award because he has been asserting his rights in good
In its reply, CIGNA points out that Zebrowski is emphasizing
that his claims for "pain and suffering and "[t]he delays and
failure to make information known to him . . . are the main
issues and not the denial of benefits itself[.]" Zebrowski Aff.
at ¶ V(1) (emphasis in original). According to Zebrowski, it is
CIGNA's alleged "abandonment" of him along with these alleged
delays which purportedly "are the proximate cause of the pain
and suffering incurred by [him][.]" Id. Based upon that
reasoning, Zebrowski contends that his claims are not preempted
by ERISA. Id. Zebrowski further reasons that "Congress did not
and could not have intended to shield administrators [such as
CIGNA] dealing in clear bad faith." Id. at ¶ V(2).
As to plaintiff's bad faith claim, CIGNA responds that such
claim cannot survive this summary judgment motion because even
assuming arguendo it is not preempted by ERISA, it would fail
because plaintiff is unable to satisfy the elements of same under
New York law.
As CIGNA reads the complaint, the "only pending claims" are
those "for emotional distress as a result of [its] denial and for
damages under [§] 5106 of New York State Insurance Law." CIGNA
Memo. at 4. The court disagrees. It cannot reconcile plaintiff's unequivocal statement that he is
not seeking payment for denial of benefits with the allegations
in the complaint and in his opposing affidavit that, among other
things, CIGNA breached "the subject policy coverage[.]" Zebrowski
Aff. at ¶ III(9). Furthermore, in his complaint plaintiff
declares that he is "entitled to all overdue payments[.]"
Horbatiuk Aff., exh. C thereto ¶ 26. Although somewhat ambiguous,
this language lends further credence to the view that plaintiff
is alleging breach of contract. Thus, liberally construing this
pro se litigant's papers, the court interprets the same as
alleging the following: (1) breach of contract; (2) negligent
infliction of emotional distress; (3) intentional infliction of
emotional distress; (4) a cause of action based on section 5106
of the New York Insurance Law; and (5) bad faith.
I. Summary Judgment Standard
"The standards for summary judgment motion[s] are well
established and there is no need to repeat the same herein."
Cade & Saunders, P.C. v. Chicago Ins. Co., 307 F. Supp.2d 442,
446 (N.D.N.Y. 2004) (citing, inter alia, Fed.R.Civ.P. 56
(c)). It does bear repeating, however, that "[s]ummary judgment
is inappropriate only if the issue to be resolved is both
genuine and related to a material fact." Lajeunesse v. Great
Atlantic & Pacific Tea Company, Inc., 160 F. Supp.2d 324, 329
(D.Conn. 2001) (emphasis in original). "Therefore, the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment." Id. (emphasis in original). As will be seen,
because there are no genuine issues of material fact here, this
case is ripe for summary judgment.
II. Breach of Contract Putting aside ERISA preemption for the moment, the court will
first examine the merits of plaintiff's breach of contract claim.
The "contract" under which plaintiff is seeking damages is the
managed care contract between Lockheed Martin, as plaintiff's
employer, and Plan beneficiaries, such as plaintiff. Obviously,
CIGNA is not a party to that contract.
CIGNA is a party, however, to an "Agreement for Administration
Services" with Lockheed Martin ("the CIGNA Agreement"). See
Horbatiuk Aff., exh. B thereto. In arguing that it has no
liability to plaintiff thereunder, CIGNA relies upon the
following provision: "With respect to the outcome of . . .
litigation ["for benefits under the Plan resulting from a final
denial of benefits by CIGNA[,"] [Lockheed Martin] is liable for
the full amount of any Plan benefits paid as a result of the
litigation[.]" Id., exh. B thereto at ¶ 8(b)(v). However, there
is even more compelling language, which CIGNA overlooked, to
support a finding that plaintiff is not entitled to any relief
under the CIGNA Agreement. That Agreement unequivocally states
that it "is for the benefit of [Lockheed Martin] and CIGNA . . .
and not for any other person." Id., exh. B thereto at ¶ 15
(emphasis added). Thus, by its terms plaintiff is not a party to
the CIGNA Agreement and indeed is specifically excluded from
claiming an entitlement to benefits thereunder.
In addition to the just quoted provisions, there are several
factors which provide further support for a finding that
plaintiff is not a party to the CIGNA Agreement. That agreement
clearly and unambiguously states that it "is by and between
Lockheed Martin . . . and CIGNA . . ., for itself and its
subsidiaries and affiliated companies providing services to
[Lockheed Martin's] plan under this Agreement." Id., exh. B
thereto (emphasis). Furthermore, there is nothing before the
court even tending to show that in that Agreement either CIGNA or
Lockheed intended to bind employees such as plaintiff.
It is axiomatic that one who is not a party to a contract
cannot be held liable thereunder. Therefore, to the extent
plaintiff is asserting a claim for breach of contract under the
CIGNA agreement, such claim is without merit. The contractual
relationship, if any, of which plaintiff complains is the one
between he and Lockheed. Accordingly, CIGNA is entitled to
summary judgment on this contract claim.
Even if this alleged contract claim had merit, CIGNA still
would be entitled to summary judgment on same. That is so because
to the extent plaintiff is claiming a breach of contract, ERISA
ERISA preemption is expansive, to say the least. See Aetna
Health Inc. v. Davila, 124 S.Ct. 2488, 2503 (2004) (citation and
internal quotation marks omitted) (emphasis added) ("[V]irtually
all state law remedies are preempted but very few federal
substitutes are provided.") Indeed, "ERISA supersedes `any and
all State laws insofar as they may now or hereafter relate to
any employee benefit plan.'" Denniston v. Taylor, 98 Civ. 3579,
2004 WL 226147, at *6 (S.D.N.Y. Feb. 4, 2004) (quoting
29 U.S.C. § 1144(a) (West 1999)) (emphasis added). "The phrase `relate to'
in section 1144(a) is interpreted in its broadest sense, reaching
any state laws that have any connection or reference to a
particular employee benefit plan." Id. (citing, inter alia,
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48 (1987)). "A
law `relates to' an employee benefit plan, in the normal sense of
the phrase, if it has a connection with or reference to such a
plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97
Here, there is no doubt that the Lockheed Plan is an employee
benefit plan governed by ERISA, and likewise that the CIGNA
agreement also comes within the ambit of ERISA. See Aetna Health Inc. v. Davila,
124 S.Ct. 2488, 2493 (2004) (plan participant and plan beneficiary
sued plan administrators alleging that they sustained injuries
when those administrators decided not to provide coverage
recommended by treating physicians). Nor can there be any doubt
that plaintiff's contract claim arises from the administration of
an employee benefit plan in that he is alleging a "breach of the
terms and provisions of subject policy coverage." Horabituk Aff.,
exh. C thereto at ¶ 23. As such, ERISA preempts this state common
law breach of contract claim. See Met Life Ins. Co. v.
Taylor, 481 U.S. at 62 (ERISA preempted state law breach of
contract action by employee seeking to recover benefits under a
disability insurance policy); see also Diduck v. Kaszycki &
Sons Contractors, Inc., 974 F.2d 270, 288 (2d Cir. 1992) (ERISA
preempts "[a] state common law action which merely amounts to an
alternative theory of recovery for conduct actionable under" that
III. Emotional Distress
The parties do not distinguish between negligent and
intentional emotional distress. However, because plaintiff's
papers can be read as alleging both, the court will separately
address each of these claims. Although CIGNA claims that ERISA
preempts claims for emotional distress, the only case which it
cites for this proposition is Pilot Life, 481 U.S. 41. Pilot
Life did not so hold. Regardless, as set forth below, CIGNA is
entitled to summary judgment dismissing plaintiff's emotional
A. Intentional Infliction of Emotional Distress
"Under New York law, a party claiming intentional infliction of
emotional distress must prove four elements: 1) conduct that goes
beyond `all possible bounds of decency;' 2) intention to cause
distress, or knowledge that defendant's conduct would result in emotional distress; 3) severe emotional
distress; and 4) a causal link between the defendant's conduct
and plaintiff's distress." Gay v. Carlson, 60 F.3d 83, 89 (2d
Cir. 1995) (citing Richard L. v. Armon, 536 N.Y.S.2d 1014, 1015
(2d Dep't 1989)). "New York courts have been very strict in
applying these elements." Id. (internal quotation marks and
citation omitted) (emphasis added).
Plaintiff's complaint, let alone his opposition papers, is
wholly lacking when viewed against this standard. "The court may
determine, as a threshold matter, that the conduct in question
was not sufficiently outrageous to satisfy the first element of
this standard." Fraad-Wolff v. Vassar College, 932 F. Supp. 88,
93 (S.D.N.Y. 1996) (citing, inter alia, Kalika v. Stern,
911 F. Supp. 594, 604-05 (E.D.N.Y. 1995) (granting summary judgment
dismissing claim)). The court can easily do that here. "There
[are] no allegation[s,] and [the court] ha[s] no basis for
concluding, that the behavior alleged here goes beyond all
possible bounds of decency." Id. (internal quotation marks
omitted). Although plaintiff does allege that CIGNA acted
intentionally, he has come forth with nothing on this motion to
substantiate that allegation. Thus, even reading the facts in the
light most favorable to plaintiff and drawing all reasonable
inferences in his favor, no reasonable jury could find that
CIGNA's conduct here was "beyond all possible bounds of decency."
CIGNA was simply exercising its discretion under the Agreement
with Lockheed to deny coverage for matters which it deemed
medically unnecessary. Moreover, the record amply supports
Even if there was some possible way which plaintiff could
survive CIGNA's summary judgment on the merits, CIGNA would still
prevail. "[S]tate law claims of . . . intentional infliction of
emotional distress, . . . are clearly preempted by ERISA as a matter of law." Todd v. Aetna Health
Plans, 62 F. Supp.2d 909, 915 (E.D.N.Y. 1999) (and cases cited
therein), aff'd unpub'd decision, 31 Fed.Appx. 13 (2d Cir.
Feb. 21, 2002) Thus, whether on the merits or due to ERISA
preemption, CIGNA is entitled to summary judgment dismissing
plaintiff's claim for intentional infliction of emotional
2. Negligent Infliction of Emotional Distress
"To sustain . . . a [negligent infliction of emotional
distress] claim, plaintiff must allege injuries, physical or
mental, incurred by fright negligently induced." Geiger v. E.I.
Dupont Nemours & Co., Inc., No. 96 CIV. 2757, 1997 WL 83291, at
*12 (S.D.N.Y. Feb. 27, 1997) (internal quotation marks and
citations omitted). "Thus, although an allegation of physical
injury is not a prerequisite, such a cause of action must
generally be premised upon conduct that unreasonably endangers
plaintiff's physical safety." Id. (internal quotation marks and
citations omitted). Obviously the record here is conspicuously
void of any such conduct. Consequently, CIGNA is also entitled to
summary judgment dismissing this claim for negligent infliction
of emotional distress.
IV. New York Insurance Law § 5106
Section 5106 of New York's Insurance Law governs claims for
no-fault personal injury benefits. The court therefore agrees
with CIGNA that on its face this statute has no applicability to
this action. So CIGNA is entitled to summary judgment dismissing
this cause of action as well.
V. Bad Faith
There are no bad faith allegations in plaintiff's complaint, as
previously mentioned. Broadly reading his opposition papers,
however, it is possible to conclude that plaintiff is making such
a claim now. There appear to be two aspects to this bad faith claim. First of all, evidently
plaintiff asserts that CIGNA acted in bad faith by refusing
coverage for his additional in-patient stay. As the court reads
it, part of this alleged bad faith also pertains to CIGNA's
handling of the appeal process in connection with plaintiff's
request for coverage. Second, it seems that plaintiff is alleging
"bad faith dealings" arising from CIGNA's purported failure to
turn over the CIGNA Agreement during discovery. See Zebrowski
Aff. at ¶ III(10).
Irrespective of the nature of plaintiff's bad faith claim,
because clearly it is nothing more than a state common law cause
of action based, for the most part, on CIGNA's alleged improper
processing of his claim, ERISA preempts it too. See Pilot
Life, 107 S.Ct. 1549 (state law bad faith claim asserting
improper processing of a benefits claim was grounded in general
principles of tort and contract law and thus preempted by ERISA).
To the extent this claim can be read as asserting bad faith in
CIGNA's denial of coverage, ERISA preempts it as well. See
also Owens v. Metropolitan Life Ins. Co., 865 F. Supp. 100,
103 (N.D.N.Y. 1994) (ERISA preempted insured's claim that
disability benefits were denied in bad faith).
As to CIGNA's alleged failure to provide discovery in this
action, the record does not support this allegation at all.
Magistrate Judge DiBianco ably handled the discovery phase of
this litigation, and there is simply no basis for concluding that
CIGNA did not fully comply with its obligations in connection
therewith. Moreover, not only has plaintiff failed to meet his
burden of "com[ing] forward with specific facts showing . . . a
genuine issue for trial[,]" but he has failed to come forth with
any facts to support his bad faith claim. See Lajeunesse,
160 F. Supp.2d at 330 (internal quotation marks and citation omitted)
(emphasis added). Thus once again CIGNA is entitled to summary
judgment this time on plaintiff's bad faith claim.
VI. Arbitrary and Capricious
The final reason which CIGNA offers as a basis for its summary
judgment motion is that its decision to deny coverage for
plaintiff's stay at Community after December 3, 1998 can, "by no
stretch of the imagination . . . can be considered arbitrary and
capricious." CIGNA Memo. at 10. Given that unfettered delegation,
CIGNA is correct that the standard of review here is arbitrary
and capricious. See Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989) (default standard of review under ERISA is
de novo, but it is the "more deferential arbitrary and
capricious" standard which applies when the plan delegates
authority to the plan administrator). Plaintiff does not contend
CIGNA also is correct that the scope of review in this case is
limited to the administrative record. See Krizek v. CIGNA
Group Ins., 345 F.3d 91, 97 (2d Cir. 2003) (absent a finding of
"good cause" warranting the introduction of additional evidence,
court's review of ERISA plan administrator's decision as to
eligibility benefits is confined to the administrative record).
Plaintiff does not challenge the scope of review here. In fact,
plaintiff did not address CIGNA's arbitrary and capricious
argument at all. The court will touch upon it briefly.
Arbitrary and capricious means that a court may reverse only
if the decision was "without reason, unsupported by substantial
evidence or erroneous as a matter of law." Miller v. United
Welfare Fund, 72 F.3d 1066, 1070 (2d Cir. 1995). It is
self-evident from a careful review of the administrative record
that CIGNA's decision to decline plaintiff coverage for an
additional week of inpatient care at Community does not run afoul
of that highly deferential standard. That decision was not
"without reason." Nor was CIGNA's decision "unsupported by substantial evidence, or erroneous as a matter of law." It
necessarily follows that CIGNA's decision was not arbitrary or
As should be readily apparent by now, plaintiff, as the
non-moving party has not met his burden in any respect of coming
forth with specific facts showing that there is a genuine issue
of fact for trial. In this regard it should be noted that
unsupported allegations, of which there are many here, "`do not
create a material issue of fact." Lajeunesse, 160 F. Supp.2d at
330 (quoting Weinstock v. Columbia Univ., 131 F.3d 305, 41 (2d
Cir. 2000)). Thus, summary judgment should be granted to CIGNA in
all respects. See id. "The question then becomes: is there
sufficient evidence to reasonably expect that a jury could return
a verdict in favor of the nonmoving party." Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In
this case, the answer is emphatically no.
Even though CIGNA has prevailed on this motion, in its
discretion, the court declines to grant CIGNA its attorneys'
fees, costs and disbursements.
For all of these reasons, the court finds that defendant CIGNA
BEHAVIORAL HEALTH INC. is entitled to summary judgment pursuant
to Fed.R.Civ.P. 56 dismissing this action in its entirety. The
Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.