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Micciche v. Kemper National Services

March 24, 2008

SUSAN MICCICHE, PLAINTIFF,
v.
KEMPER NATIONAL SERVICES, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

On September 21, 2006, plaintiff Susan Micciche sued defendant Kemper National Services ("Kemper") under the Employee Retirement Income Security Act ("ERISA"), alleging that defendant, as administrator of her employer-sponsored insurance plan (the "HSBC plan"), improperly denied her claim for long-term disability benefits. Plaintiff seeks the value of the benefits she believes are owed to her under the HSBC plan. Kemper moves the court to dismiss the complaint pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of Civil Procedure because plaintiff failed to serve Kemper with the summons and complaint within 120 days after it was filed, or alternatively, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the present action is time-barred by the terms of the HSBC plan. For the reasons set forth below, the court excuses plaintiff's failure to comply with Rule 4(m)'s service requirements, and dismisses plaintiff's complaint pursuant to Rule 12(b)(6).

I. Background

A. Facts

Plaintiff worked as a Branch Platform Officer for HSBC Bank USA, and received disability insurance coverage under the HSBC plan. (Compl. ¶ 6; Attachment to Complaint (hereinafter, "O'Rourke Letter") at 1-2) In February of 2000, an accident rendered plaintiff unable to work and she took disability leave. (Comp. ¶ 7; O'Rourke Letter at 2-3) Plaintiff briefly returned to work from August 17, 2000 until September 14, 2000 but has not worked since because her disability "has [ ] prevented [her] from engaging in any occupation or from performing any work for compensation or profit." (Compl. ¶¶ 7, 16) Plaintiff asserts in her complaint that she has been totally disabled since 2001, and has received social security disability benefits, in addition to short-term disability benefits under the HSBC plan. (Compl. ¶¶ 8, 16) Plaintiff's application for long-term disability benefits under the HSBC plan was denied. (See O'Rourke Letter at 1)

Plaintiff, through counsel, made several unsuccessful attempts to appeal the denial of her claim. (Id.) Plaintiff attached to her complaint a letter dated October 3, 2001 from the claims administrator that preceded Kemper-Integrated Disability Resources, Inc. ("IDR")-to plaintiff's counsel, Mr. Thomas Bello, which reads, "We are writing to you concerning your appeal of the denial decision on your client's application for Long Term Disability benefits under the above employer's policy. We have completed our review of your appeal and we must uphold the previous denial decision on your client's claim." (O'Rourke Letter at 1) The letter concludes with the following language:

Since this is the third appeal and we still have not been provided with medical evidence to support a disability for the period of time for which the claim is being filed, this is our final decision on the claim. We will not consider for review any medical information submitted that is already in the file and is not supportive of a Disability that began at the start of the policy's Benefit Qualifying period. (Id. at 3)

On November 4, 2002, more than a year after the denial of plaintiff's third appeal, Mr. Bello sent IDR a letter, attempting to submit additional medical documentation and requesting that the administrator contact him to discuss plaintiff's benefits claim. (ECF Docket Entry 26, Ex. Dat 25) A subsequent letter to IDR from Mr. Bello dated April 2, 2003 states, "On November 4, 2002 this firm forwarded correspondence to you regarding [plaintiff]. To date we have not received a response. Kindly contact this office at your earliest convenience." (Id. at 27) On April 7, 2003, IDR wrote a response to Mr. Bello, which states:

We are writing to you concerning your client's Long Term Disability claim under [HSBC]'s policy.

We wish to acknowledge receipt of your letter dated April 2, 2003 in which you indicated information was forwarded to us concerning [plaintiff]'s claim.

Please note that [Kemper], the claim administrator for the Long Term Disability (LTD) Plan, has transitioned claims administration from IDR Inc.'s Connecticut office to Kemper's Florida claims center. The transition to the Florida office took place effective December 1, 2002. Therefore, your client's claim has been transferred to the Florida office for ongoing claims administration.

The Kemper Disability Claims Unit, located in Plantation, Florida, has a fully staffed team of professionals dedicated to coordination your disability needs.

If you have any questions concerning your client's claim, you may contact Kemper at the address and telephone number listed below: (ECF Docket Entry 27, Ex. D at 39-40) The letter also includes Kemper's general address and toll free number. (Id. at 39-40)

On March 5, 2004, Mr. Bello sent another letter to IDR, renewing his request that IDR contact him and resubmitting the medical documentation originally sent with his November 4, 2002 letter. (Id. at 29, 33) On April 20, 2004, Mr. Bello also sent a letter to Kemper, asking it to contact him regarding the status of plaintiff's claim and forwarding copies of correspondence between IDR and his office. (Id. at 30.) There is no indication that either IDR or Kemper ever replied to these communications. A letter from Mr. Bello to Kemper dated September 8, 2004 and addressed "To Whom It May ...


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