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Chernish v. Massachusetts Mutual Life Insurance Co.

February 10, 2009

ANNE K. CHERNISH, PLAINTIFF,
v.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

ORDER

1. The Complaint

According to the Complaint (Dkt. No. 1-2), on or about March 16, 1987, Defendant Massachusetts Mutual Life Insurance Company ("Mass Mutual") sold to Plaintiff Anne K. Chernish a disability income insurance policy that was to expire 30 years later. In or about 1988 Plaintiff became ill, ultimately developing a chronic, permanent and untreatable medical condition diagnosed as orthostatic hypotension, autonomic dysfunction, and complete AV block, and, more recently, Crohn's Disease. This illness includes a disorder of the nervous system, chronic migraine headaches and chronic fatigue, among other disabling sequelae.

Dkt. No. 1-2, at ¶5.

In 1988 Plaintiff filed a claim for benefits under the policy, and, "after an unsuccessful contest, [Mass Mutual] paid benefits." Id. at ¶7. For reasons that are not clear from the Complaint, benefit payments apparently were stopped, and in 2001 and 2004 Plaintiff renewed her claim for benefits. Mass Mutual has not denied these claims nor has it renewed the payment of benefits. The Complaint alleges that throughout this period Plaintiff "has been disabled within the meaning of the policy, and is entitled to full benefits." Id. at ¶12.

In her First Cause of Action Plaintiff asserts a breach of contract, and claims to have been damaged by, inter alia, "loss of benefits under the policy; loss of premiums; obligation for legal fees and other consequential damages as allowed by law; expenses." Id. at ¶20.

In her Second Cause of Action Plaintiff asserts a breach of the covenant of good faith and fair dealing. She alleges that:

The systematic and exclusionary misconduct on the part of the defendant includes but is not limited to: delaying the payment of claims; requiring unreasonable and repeated production of documents; making unreasonable settlement offers before engagement of counsel; engaging in unlawful surveillance; denying coverage of legitimate claims; and otherwise acting in bad faith.

Id. at ¶24. In this regard she alleges that she has been damaged by, inter alia, loss of the benefit of the bargain; loss of insurance benefits including peace of mind, the comfort and knowledge of protection against disaster and loss; pain, suffering, inconvenience and mental anguish; loss of enjoyment of life; loss of dignity; expenditure of unreasonable amounts of time in pursing [sic] her claims herein.

Id. at ¶26.

In her Third Cause of Action Plaintiff alleges that Mass Mutual has violated New York General Business Law ("GBL") § 349, which prohibits deceptive acts and practices.

2. The Motion

Mass Mutual has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the Complaint's Second and Third Causes of Action, "and to strike plaintiff's request for attorney's fees." Dkt. No. 4-5, at 3. Plaintiff opposed the motion (Dkt. ...


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