United States District Court, S.D. New York
September 16, 2005.
ZBIGNIEW SLUPINSKI, Plaintiff,
FIRST UNUM LIFE INSURANCE CO. and WEIL, GOTSHAL & MANGES LONG TERM DISABILITY INCOME PLAN, Defendants.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
In this action, plaintiff Zbigniew Slupinski challenges the
termination of long-term disability benefits that he had been
receiving through a plan covered under the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.
Defendant First Unum Life Ins. Co. ("First Unum") was, at all
relevant times, the administrator and insurer of defendant Weil,
Gotshal, and Manges Long Term Disability and Income Plan (the
First Unum moves for judgment on the administrative record.
Plaintiff cross-moves for summary judgment.
First Unum's motion for judgment on the administrative record
is denied. Plaintiff's cross-motion for summary judgment is
treated as a motion for judgment on the administrative record and
is granted. FACTS
Plaintiff Zbigniew Slupinski was employed as an associate
attorney by the law firm of Weil, Gotshal, and Manges ("WG&M") in
1991. Plaintiff had received his law degree in Poland and
specialized at WG&M in the Eastern European markets that were
rapidly developing at that time. WG&M had recently opened an
office in Warsaw, and plaintiff was assigned the responsibility
of overseeing that office, an assignment that required plaintiff
to spend approximately half his time in Poland.
On August 4, 1991, while in Poland on work assignment,
plaintiff was involved in an automobile accident that caused him
serious injuries. In addition to other injuries he sustained,
plaintiff's left ulnar nerve was severed, and other nerves and
arteries in his left arm were severely damaged. It is this injury
to plaintiff's left arm and the resulting pain therefrom that are
the basis of plaintiff's claim for long-term disability benefits
("LTD" benefits) under the Plan. After the accident, plaintiff
was immediately hospitalized and was flown to London where he
underwent several surgeries on his left arm before retuning to
the United States in September 1991.
Upon his return to the United States, plaintiff unsuccessfully
attempted to return to work. On December 1, 1991, plaintiff
officially quit his position at WG&M citing continued
difficulties with his physical condition. Plaintiff continued to
experience functional limitations and pain in his left arm and
underwent additional surgeries in 1992 and 1993 in an attempt to
regain greater function. While employed at WG&M, plaintiff was enrolled in the WG&M Long
Term Disability Income Plan that was insured by First Unum Life
Insurance Co. The Plan provided "disability income insurance" to
WG&M employees. Under the Plan, WG&M employees were eligible for
disability payments if they became "disabled due to sickness or
injury" and "require[d] the regular attendance of a physician."
The Plan also required that an insured, at his own expense,
provide "proof" of these facts both at the time he initially
applies for benefits and thereafter when requested by First Unum.
The Plan defined "disability" as follows:
"Disability" and "Disabled" mean that because of injury or
1. The insured cannot perform each of the material
duties of his regular occupation; and
2. After benefits have been paid for 24 months, the
insured cannot perform each of the material duties of
any gainful occupation for which he is reasonably
fitted, taking into consideration training, education
or experience, as well as prior earnings.*fn1 (emphasis added). The Plan further provided that
"[d]isability benefits will cease on the earliest of
. . . (1) the date the insured is no longer
On February 25, 1992, plaintiff applied for LTD benefits from
First Unum under the Plan. First Unum approved the LTD benefits
and plaintiff began receiving those payments on August 3, 1992.
In addition to his functional limitations, plaintiff also began
to complain of severe pain in his left arm making it impossible
for him to focus or concentrate on various tasks. Though First
Unum asserts that plaintiff only began to complain of pain after
his benefits were at risk of termination and when he retained an
attorney, it appears that plaintiff complained of pain rather
earlier on. In June 1992, while still waiting for an initial
determination of eligibility for benefits from First Unum,
plaintiff stated to a First Unum "benefits analyst" that he was
unable to work due to pain. First Unum's notes of a 1993 phone
call with plaintiff indicate that plaintiff's work limitations
were related to pain in his left arm and that he was seeking
treatment for this pain. Plaintiff also claimed at various times
to suffer from memory loss and lack of concentration, and that
various pain medications that had been prescribed for him had
further limited his cognitive abilities.
In 1993 plaintiff moved from New York to Vero Beach, Florida
where he established treatment with two local physicians, a
neurologist named Fernando Miranda, and Romas Sakalas, a
neurosurgeon. From time to time, in accordance with First Unum's
requests, plaintiff submitted letters from each of these two
doctors indicating that he was unable to resume gainful
employment due to functional limitations with his left arm.
Plaintiff continued to receive benefits during his residency in
Florida. During the summer of 1995, as part of what First Unum terms its
"ongoing evaluation" of plaintiff's disability claim, it
contacted Miranda and Sakalas, requesting that they complete
"physical capacity evaluation" forms ("PCEs"). In a PCE dated
September 14, 1995, Sakalas stated that although plaintiff's left
arm and hand were incapacitated, plaintiff was able to work on a
full time basis. Miranda, on the other hand, made contradictory
statements. In a PCE dated September 11, 1995, he stated that
plaintiff was unable to work even part time. In the same report,
however, he indicated that plaintiff could sit, stand, and walk
for six hours with rests, and, in what is clearly factually
incorrect, that plaintiff had "functional capacity in both
hands." Then, in a follow up conversation with Sharon Hogan, a
First Unum physician, Miranda stated that he wished to "defer
making an assessment of [plaintiff's] work capacity" and that
"there would be no contraindication to his returning to work if
he specifically asked to do so."
Also as part of its "ongoing evaluation," First Unum mailed
plaintiff a "supplemental statement" form to complete. In it,
plaintiff indicated that he was disabled due to "nerve pain."
Finally, First Unum retained vocational counselor Leeper to
evaluate plaintiff's work capacity. In a report dated November
21, 1995, Leeper concluded that "[u]nless issues exist to impair
or diminish cognitive attention and focus, it appears that
claimant can perform the occupation of lawyer [without the use of
his left arm]."
On December 1, 1995, First Unum notified plaintiff that, based
upon the information it had on his medical condition and on its
vocational review, he "no longer met the [Policy's] definition of
total disability," and advised plaintiff that his benefits would
terminate if he did not submit "medical certification" within 30
days. The letter contained no explanation and simply quoted the
definition of disability that appeared in the Plan. On December 5, 1995, plaintiff called First Unum to
explain that he was scheduled to see five doctors for evaluations
in the near future and would submit updated medical information
as soon as possible. First Unum's notes from this conversation
include a notation that "pain is severe, it has reduced some but
still cannot perform daily activities."
Not having received the "medical certification" it had
requested within the given time, First Unum terminated
plaintiff's benefits. In its letter dated December 29, 1995,
First Unum stated, again with little explanation, that because
plaintiff no longer fell within the policy's definition of the
term "disabled," benefits would cease. The termination letter
also advised plaintiff that he could submit "new, additional
information to support your request for disability benefits" and
advised him that he could secure a review of its decision by
written request within 60 days.
Shortly thereafter, plaintiff informed First Unum by letter
dated January 1, 1996, that he was in the process of seeing
several physicians and would submit additional medical
information shortly. In response, First Unum sent a letter to
plaintiff, dated January 11, 1996, in which it indicated that the
reason for its denial was that plaintiff had "work capacity to
perform [his] own occupation or any occupation," and warned that
"[i]n order for us to consider reopening your claim, we must have
objective medical information that outlines the restrictions
and limitations that preclude you from performing your own
occupation or any other occupation." (emphasis added).
On February 27, 1996, plaintiff formally requested a review of
First Unum's denial of his claim. The following day, through his
attorney, plaintiff informed First Unum that debilitating chronic pain was the essential element of his
disability and that his inability to concentrate or focus due to
pain prevented his return to work.
On the same day, plaintiff also submitted a number of letters
from physicians that he had seen for treatment in December 1995
and January 1996 stating that, due to his neurological pain, he
was unable to return to work. In a letter dated February 21,
1996, Dr. David G. Kline, Chairman of Neurosurgery at Louisiana
State Medical Center, stated: "The patient has developed severe
burning pain sensation . . . [H]e is unable to return to gainful
employment at this time." Another letter by Dr. Robert E.
Lovelace, Professor of Neurology at the Neurological Institute in
New York and dated February 13, 1996, stated: "[T]he patient . . .
is now getting pain sensation which is reported very serious
and constantly present . . . he is unable to return to gainful
employment at this time." Each of these physicians had examined
plaintiff in December 1995. Letters from Doctors Wilson and
Kurtz, and a letter from Miranda now revising his September 11,
1995 opinion, contained similar statements. Each letter referred
to plaintiff's chronic pain and his consequent inability to
return to gainful employment.
Nevertheless, on March 12, 1996, the same First Unum unit that
initially terminated his benefits again rejected plaintiff's
claims and stated its refusal to resume paying benefits. It added
that First Unum would refer the matter to its LTD Quality Review
Section upon written request within 60 days. Shortly thereafter,
plaintiff's counsel formally requested this second level review
and sent several follow up letters requesting an explanation for
First Unum's refusal to reinstate benefits. In a May 16, 1996 letter, Arthur Hackett, a "Senior Benefit
Analyst" with First Unum, responded to plaintiff's attorney's
inquiries. Mr. Hackett gave as reason for rejecting the letters
from Kline, Lovelace and plaintiff's other doctors, the need for
"objective evidence of disability." The letter explained that
examples of "objective" evidence would include "office notes for
periods of treatment, test results showing objective findings,
hospital testing including: x-rays, MRIs, and other reports
containing additional evidence of [plaintiff's] medical
condition." The letter also indicated that the only "objective
medical evidence" in the record at that time were PCE forms
signed by Miranda and Sakalas in September 1995 indicating that
plaintiff could work. Hackett concluded his letter by agreeing to
"hold [the] file open for an additional 60 days" to allow
plaintiff to "provide objective medical information to us as
required under the contract."
From June 1996 through October 1996, in an attempt to comply
with First Unum's requirement that he provide "objective medical
evidence," plaintiff submitted additional medical documentation.
The majority of these were "treatment notes" from doctors who saw
plaintiff between February and June 1996. For example, on June
27, 1996, plaintiff submitted nearly 70 pages of treatment notes
from a number of physicians including those of John Carey and
William Cheshire, neurologists affiliated with the Mayo Clinic.
These letters reiterated plaintiff's complaints of severe pain
and further diagnosed plaintiff with causalgia.*fn2 Other
documents contained in plaintiff's June 27, 1996 submission were
reports by Doctors Steven Shiavitz, Jasper Daube, Jose Zuniga,
and Joann Link. These reports also restated plaintiff's complaints of
severe chronic pain, and echoed Carey's and Cheshire's diagnosis
of causalgia. Plaintiff continued submitting similar documents to
First Unum through September 1996.
In July 1996 First Unum assigned Richard Day, a First Unum
in-house physician, to assess plaintiff's physical limitations
and his potential ability to return to work. Day reviewed
plaintiff's medical documentation but never physically examined
plaintiff. Day also contacted only very few of the many
physicians that had treated plaintiff. Based upon his analysis of
plaintiff's file, Day concluded in a July 30, 1996 memorandum
that plaintiff "has work capacity."
Finally, in a letter dated March 26, 1997, First Unum informed
plaintiff of its final determination to deny his claim and
reiterated its previous finding that he was not "disabled" within
the meaning of the policy. In its letter, First Unum again cited
the PCE forms completed by Miranda and Sakalas, indicating that,
as of September and October 1995, plaintiff could return to work.
The letter also referred to the vocational review conducted by
First Unum in November 1995, which concluded that plaintiff could
return to work. Finally the letter asserted that "it was not
until [a later surgery] on June 26, 1996 that Mr. Slupinski's
pain became intolerable." Plaintiff then filed this suit
challenging the administrator's decision on January 28, 1999.
Characterizing the Parties' Motions
Because a motion for judgment on the administrative record is
not explicitly authorized by the Federal Rules of Civil
Procedure, courts in this circuit have ruled somewhat differently
on how to characterize such a motion. Some district courts have construed a motion for judgment on the administrative record as a
motion for summary judgment, see Lott v. Morgan Stanley Dean
Witter & Co. Long-Term Disability Plan, 03-CV-9235, 2004 U.S.
Dist. LEXIS 19471 (D.N.Y. 2004); Hammer v. First Unum Life Ins.
Co., 01-CV-9307, 2004 U.S. Dist. LEXIS 16893 (D.N.Y. 2004),
while others have taken it as a request for a "bench trial on the
papers," with the district court acting as finder of fact, see
Neeb v. Unum Life Ins. Co. of Am., 03-CV-0307, 2005 U.S. Dist.
LEXIS 6087 (D. Conn. 2005); DiMaria v. First Unum Life Ins.
Co., 01-CV-11413, 2005 U.S. Dist. LEXIS 5366 (D.N.Y. 2005). An
action for ERISA plan benefits under Section 502(a)(1)(B) of
ERISA, 29 U.S.C. § 1132(a)(1)(B) is equitable in nature.
Therefore, no right to trial by jury exists, DeFelice v.
American Int'l Life Assur. Co., 112 F.3d 61, 64 (2d Cir. 1997),
and such a bench trial on the papers is "entirely proper."
Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2nd Cir.
The Second Circuit has thus far indicated its approval of both
approaches. In Muller the court was squarely presented with the
question of how to characterize a motion for judgment on the
administrative record. The court held that "the decision on the
motion for judgment on the administrative record, or the District
Court's `de novo review of the parties' submissions' and
resolution thereof, can best be understood as essentially a bench
trial `on the papers' with the District Court acting as the
finder of fact. . . . [T]his form of bench trial was entirely
proper." Id. at 124. In Napoli v. First Unum Life Ins. Co.,
78 Fed. Appx. 787 (2d Cir. 2003), however, the court upheld the
district court's treatment of a motion for judgment on the
administrative record as a motion for summary judgment. The court
held that "although First Unum styled its motion as one for `Judgment on
the Administrative Record,' we are bound by the District Court's
treatment of that motion as one for summary judgment." Id. at
This court believes that the most appropriate characterization
of this kind of proceeding is as a bench trial under
Fed.R.Civ.P. 52 in accordance with Muller. The court will therefore treat
both First Unum's motion for judgment on the administrative
record and plaintiff's motion for summary judgment as motions for
a bench trial "on the papers" as authorized by Rule 52 and
approved by the Second Circuit in Muller.
Standard of Review
"[A] denial of benefits challenged under § 1132(a)(1)(B) is to
be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (U.S. 1989). The court's de novo review extends not only to
interpretation or construction of a benefit plan, rather, "the de
novo standard of review applies to all aspects of the denial of
an ERISA claim, including fact issues, in the absence of a clear
reservation of discretion to the plan administrator." Kinstler
v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 245 (2d Cir.
1999). Under this standard, no deference at all is accorded to
defendant's interpretation of the Plan but on the contrary, any
ambiguities in the Plan are to be construed in plaintiff's favor.
Masella v. Blue Cross & Blue Shield of Conn., Inc.,
936 F.2d 98, 107 (2d Cir. 1991). Furthermore, under such de novo review,
the district court "is free to evaluate a treating physician's
opinion in the context of any factors it consider[s] relevant,
such as the length and nature of their relationship, the level of
the doctor's expertise, and the compatibility of the opinion with the other evidence."
Locher v. Unum Life Ins. Co. of Am., 389 F.3d 288, 290-91 (2d
Cir. 2004) (citation, internal quotation marks and brackets
Here, all parties concede that the Plan confers no special
discretionary authority upon the administrator. The court's
review of First Unum's termination of benefits is therefore de
novo both as to the interpretation of the terms of the Plan and a
determination of facts.
Supplementing the Administrative Record
Another preliminary issue is the scope of the court's review,
particularly with regard to evidence not introduced during the
claims procedure and therefore not contained within the
administrative record. In this regard, plaintiff urges the court
to consider his submission titled "Declaration of Plaintiff
Zbigniew Slupinsi in Support of his Motion for Summary Judgment."
Furthermore, should his motion be denied, plaintiff indicates
that he would seek further discovery.
The decision whether to consider evidence from outside the
administrative record is soundly within the discretion of the
district court. Muller, 341 F.3d at 125. The court considers
plaintiff's declaration to be cumulative of what is already
contained in the administrative record. Therefore, the court will
evaluate plaintiff's claim for disability benefits solely on the
basis of the administrative record developed during the claims
It is well established that plaintiff bears the burden of
showing that he was entitled to long-term disability benefits
under his plan. Maniatty v. UNUMprovident Corp., 62 Fed. Appx. 413 (2d Cir. 2003). Under the terms of the Plan, in
order to be eligible for benefits, an insured must provide
"proof" of disability. Furthermore, even after benefits have been
awarded, the Plan provides that First Unum may require an insured
to provide "proof of continued disability" within 30 days of
written request. The Plan, however, makes no explicit statement
regarding the nature of "proof" required or what sort of evidence
would be competent to prove that an insured is "disabled."
"It has long been the law of this Circuit that `the subjective
element of pain is an important factor to be considered in
determining disability.'" Connors v. Connecticut General Life
Ins. Co., 272 F.3d 127, 136 (2d Cir. 2001); Mimms v. Heckler,
750 F.2d 180, 185 (2d Cir. 1984). Subjective complaints of pain
may even alone constitute sufficient evidence of disability.
Krizek v. Cigna Group Ins., 345 F.3d 91, 102 (2d Cir. 2003);
Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
The court recognizes that the subjective nature of pain and its
often non-objectively quantifiable nature present special
credibility concerns. A district court, of course, need not
blindly accept complaints of pain as credible. See Aponte v.
Sec'y of the Dep't of Health & Human Servs., 728 F.2d 588, 591
(2d Cir. 1984).
In evaluating the credibility of subjective complaints of pain
by a disability benefits claimant, two factors are particularly
crucial. First, the existence of some objectively verifiable
physical injury to which a claimant's pain may reasonably be
attributed assists in ensuring the credibility of a claimant's
complaints of pain. The court in Hyatt v. Sullivan,
899 F.2d 329 (4th Cir. 1990) stated:
Once an underlying physical or mental impairment that
could reasonably be expected to cause pain is shown
by medically acceptable objective evidence, such as
clinical or laboratory diagnostic techniques, the
[plan administrator] must evaluate the disabling effects of a disability
claimant's pain, even though its intensity or
severity is shown only by subjective evidence. If an
underlying impairment capable of causing pain is
shown, its intensity can, by itself, support a
finding of disability.
Id. at 337.
Second, it is of further assistance to have a claimant's
complaints of pain accepted and confirmed by physicians who have
examined him. See Krizek, 345 F.3d at 101.
In the present case, each of these two factors, as well as the
large volume of other evidence in the record, overwhelmingly
supports plaintiff's claim that his severe and chronic pain
prevents him from engaging in "any gainful occupation for which
he is reasonably fitted."
First, plaintiff's complaints of pain relate to a serious and
objectively proven injury, namely the severe nerve damage to
plaintiff's left arm. It is undisputed that plaintiff suffered
severe and objectively determined nerve damage leaving him with
serious functional limitations. Thus, there is an objective
component to his injury that tends to lend greater credibility to
his complaints of pain. Plaintiff's doctors have been
consistently and uniformly stated that these objective physical
injuries can and do explain his severe pain.
Second, the doctors reports contained in the administrative
record consistently confirm plaintiff's repeated statements that
he is unable to work due to his constant pain. Most persuasive
are the letters by Kline and Lovelace, each of whom examined
plaintiff in December 1995 and found him unable to return to
work. With one or two questionable exceptions, each of the many
doctors who evaluated plaintiff found his complaints of pain to be credible in light of the physical injuries he
sustained. Aside from Kline and Lovelace, plaintiff's inability
to return to work due to pain was documented by Doctors Carey,
Cheshire, Shiavitz, Daube, Zuniga, and Link. The consistency and
uniformity with which the doctors who have evaluated plaintiff
concur strongly support plaintiff's claims that his pain prevents
him from returning to work.
Contrary to the First Unum's assertions, plaintiff complained
of pain long before his benefits were threatened with termination
and his retention of an attorney. In a June 12, 1992 phone call
with First Unum, even before plaintiff's benefits were initially
approved, plaintiff indicated that he was unable to work because
of pain. First Unum's notes from a conversation with plaintiff on
January 13, 1993 also indicate that plaintiff was, at that time,
complaining of nerve pain. In July 1995 plaintiff again
indicated, in a "supplemental statement" requested by First Unum
as part of its "ongoing evaluation," that he was suffering from
"nerve pain." These statements, all made well before there was
any indication from First Unum that it was considering
termination of benefits, weigh heavily in favor of finding
plaintiff's claims credible.
First Unum relies primarily on the September 1995 PCEs of
Miranda and Sakalas and the report of its own physician Day. The
court does not find these statements to be credible. With regard
to Sakalas's September 14, 1995 PCE stating that plaintiff could
work, First Unum does not dispute plaintiff's assertion that
Sakalas had not seen plaintiff since January 12, 1995 at which
time he stated that plaintiff was "prevent[ed] from gainful
employment." Miranda's numerous contradictory and equivocal
statements are likewise unconvincing. But even if these two
questionable statements were credible they could not possibly outweigh the numerous other medical opinions
confirming plaintiff's pain and inability to work.
Day's report, too, provides little support for First Unum's
position. His July 30, 1996 report talks repeatedly both of
plaintiff's complaints of pain and his doctors' verification of
those complaints. For example, the report notes the following:
"June 23, 1994 Dr. Sakalas notes "fairly severe" burning feeling
in the hand. . . . January 12, 1995 notes no gainful work";
"April 14, 1995 Dr. Miranda notes no return to work"; March 11,
1996 letter from Dr. Joann Link citing "memory and concentration
problems"; "March 15, 1996 Dr. Cheshire note [sic] the pain of
the entire hand, and distal forearm dorsal"; "June 21, 1996 Dr.
Dorsher notes causalgia . . . Though he did not appear to be
acutely uncomfortable the pain was indicated to be 8 out of 10
Somehow, despite this overwhelming evidence of plaintiff's
painful condition, Day managed to conclude that plaintiff "has
work capacity." Day's failure to credit plaintiff's complaints of
pain and the "many letters from multiple neurologists,
physiatrists, and neurosurgeons" that he reviewed, undermines the
significance and credibility of his report. When evaluated side
by side with the overwhelming evidence of plaintiff's pain and
consequent inability to return to work, the report is of little
The court must now deal with First Unum's argument that any
reports of plaintiff's condition subsequent to January 1, 1996
must be disregarded because they do not necessarily reflect
plaintiff's condition at the time benefits were terminated. First
Unum states that as the burden was on plaintiff to "prove" his
disability at the time it made its determination to terminate his
benefits, he must show that his condition did not worsen prior to
those evaluations. This argument is incorrect. First, it appears that a number of the medical reports
submitted by plaintiff and contained in the administrative record
do in fact detail plaintiff's condition prior to January 1, 1996,
and were therefore unquestionably relevant to First Unum's
January 1, 1996 decision to terminate plaintiff's benefits. For
example, plaintiff was examined by Kline on December 18, 1995 and
by Lovelace on December 27, 1995. Each of these physicians
indicated that, as of those dates, prior to termination of
benefits, plaintiff was disabled due to his severe pain.*fn3
More importantly, even after the January 1, 1996 termination of
benefits, First Unum repeatedly offered plaintiff the opportunity
to submit additional information regarding his medical condition.
First Unum could not, on the one hand, offer to consider
plaintiff's medical reports submitted after January 1, 1996 and
then refuse to do so when those reports were unfavorable to it.
Furthermore, such information was unquestionably relevant to a
proper determination of plaintiff's ability to work. See
Pollard v. Halter, 377 F.3d 183, 193-194 (2d Cir. 2004)
(stating with respect to Social Security benefits "that evidence
bearing upon an applicant's condition subsequent to the date upon
which the earning requirement was last met is pertinent evidence
in that it may disclose the severity and continuity of
impairments existing before the earning requirement date or may
identify additional impairments which could reasonably be
presumed to have been present.")
Pre-Judgment Interest and Attorney's Fees
In a suit to enforce rights under ERISA, the question of
whether or not pre-judgment interest is appropriate lies within
the discretion of the district court. In exercising such discretion, the court is to take into
consideration "(i) the need to fully compensate the wronged party
for actual damages suffered, (ii) considerations of fairness and
the relative equities of the award, (iii) the remedial purpose of
the statute involved, and/or (iv) such other general principles
as are deemed relevant by the court." Jones v. UNUM Life Ins.
Co. of Am., 223 F.3d 130, 139 (2d Cir. 2000) (quoting SEC v.
First Jersey Securities, Inc., 101 F.3d 1450, 1476 (2d Cir.
1996)) (internal quotation marks omitted). Despite First Unum's
wrongful termination of plaintiff's LTD benefits there has been
no showing here of the sort of "fairness considerations" that
would warrant an award of pre-judgment interest. Indeed,
plaintiff does not dispute the fact that he first commenced this
action almost two years after First Unum's March 27, 1996 denial.
In addition, it appears that plaintiff failed to take any action
in this case for nearly three years after his initial counsel
withdrew in May 1999. Therefore, plaintiff's request for
pre-judgment interest must be denied.
Plaintiff's request for attorney's fees must likewise be
denied. In Chambless v. Masters, Mates & Pilots Pension Plan,
815 F.2d 869, 871 (2d Cir. 1987) the court set forth a five
factor test to guide the court in its exercise of discretion in
determining whether to award attorney's fees in an ERISA case.
Under the Chambless test the court is to consider
(1) the degree of the offending party's culpability
or bad faith, (2) the ability of the offending party
to satisfy an award of attorney's fees, (3) whether
an award of fees would deter other persons from
acting similarly under like circumstances, (4) the
relative merits of the parties' positions, and (5)
whether the action conferred a common benefit on a
group of pension plan participants. Id. Despite First Unum's improper termination of
plaintiff's LTD benefits, the lack of bad faith and
absence of a common benefit conferred upon a group of
pension plan participants counsels against an award
of attorney's fees in this case.
Accordingly, plaintiff's motion for summary judgment is treated
as a motion for judgment on the administrative record and is
granted and First Unum's motion for judgment on the
administrative record is denied.
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