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VanBrocklen v. Government Employees Insurance Co.

February 18, 2009

RUSSELL VANBROCKLEN PLAINTIFF,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY (GEICO), DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiff Russell VanBrocklen ("VanBrocklen") brings this action alleging that the Government Employees Insurance Company ("GEICO") violated Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq., by canceling plaintiff's insurance policy when he was unable to undergo compulsory medical exams due to post-traumatic stress related to childhood sexual abuse. (See generally Am. Compl.; Dkt. No. 12.) Claims are also asserted for intentional and negligent infliction of emotional distress, and for breach of implied covenants of good faith and fair dealing. Id. Pending is GEICO's motion to dismiss VanBrocklen's amended complaint under FED. R. CIV. P. 12(b)(6).

(Dkt. No. 5.) For the reasons that follow, the motion is granted in part and denied in part.

II. Background

VanBrocklen's amended complaint is, unfortunately, not a model of clarity. However, the court has interpreted the relevant facts to be as follows. VanBrocklen suffers from post-traumatic stress disorder stemming from his childhood exposure to sexual abuse by medical professionals. (See Am. Compl. at ¶ 1; Dkt. No. 12.) As a result, he allegedly has severe anxiety attacks and testicular pain when undergoing medical examinations. Id. These attacks are significantly worse when the examination is given by a male member of the medical profession. Id.

In order to maintain or qualify for insurance through GEICO, VanBrocklen was apparently required to undergo a compulsory medical exam. Id. at ¶ 8. GEICO arranged for VanBrocklen to attend such an exam on June 5, 2007 with a male doctor. Id. Worried that having a male perform the exam would cause him to have a panic attack, VanBrocklen explained his condition to GEICO and requested that a female perform the exam. Id. at ¶ 9. GEICO accommodated VanBrocklen's request, but apparently cancelled the exam for reasons that are not entirely clear to the court. Id. at ¶¶ 10-12. Subsequent exams with female practitioners were scheduled, but were cancelled by either the doctors, GEICO or VanBrocklen. Id. at ¶¶ 13-18, 20-22.

Eventually, on March 4, 2008, VanBrocklen managed to show up for a series of scheduled medical exams with male physicians. Id. at ¶¶ 23-24. However, before the exams could take place, VanBrocklen suffered a moderate panic attack and began screaming. Id. at ¶¶ 25-27. 911 was appropriately called, and police and EMT's arrived. Id. at ¶¶ 28, 30-31. VanBrocklen voluntarily left with the EMT's after his panic attack had subsided, and was taken to Albany Medical Center. Id. at ¶ 32.

Thereafter, GEICO allegedly informed VanBrocklen it was canceling his insurance policy because of his anxiety attack, and because a prior medical exam had been cancelled by a physician. Id. at ¶ 33. This suit ensued, with VanBrocklen seeking injunctive relief which would essentially require GEICO to reinstate his insurance policy and benefits, and monetary relief.

III. Standard of Review

GEICO has moved for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court has previously addressed the standard for dismissal pursuant to Rule 12(b)(6), and need not repeat that standard here. For a full discussion of the standard, the court refers the parties to its decision in Dixon v. Albany County Bd. of Elections, No. 1:08-CV-502, 2008 WL 4238708, at *2 (N.D.N.Y. Sept. 8, 2008).

IV. Discussion

A. Title III ADA Claims

VanBrocklen's federal claims are asserted under Title III of the ADA which states that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advanatges, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. ยง 12182(a). GEICO asserts that VanBrocklen's Title III claims must be dismissed on a variety of grounds. ...


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