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Rosemary A. Ligotti, Report and v. Provident Life and Casualty and

December 1, 2011

ROSEMARY A. LIGOTTI, REPORT AND PLAINTIFF,
v.
PROVIDENT LIFE AND CASUALTY AND INSURANCE COMPANY, THE UNUM GROUP, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

RECOMMENDATION DECISION and ORDER

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on July 29, 2010, for all pretrial matters. The action is presently before the court on Defendants' motions for partial judgment on the pleadings (Doc. No. 16), filed March 14, 2011, and to compel Plaintiff to undergo a physical examination (Doc. No. 44), filed August 29, 2011, and on Plaintiff's motion for leave to file an amended complaint (Doc. No. 43), filed August 1, 2011.

BACKGROUND and FACTS*fn1

Since January 1985, Plaintiff Rosemary A. Ligotti ("Plaintiff" or "Ligotti"), has maintained a disability income insurance policy ("the insurance policy") issued by Defendant Provident Life and Casualty Insurance Company ("Provident"), a wholly-owned subsidiary of The Unum Group ("Unum") (together, "Defendants"). As relevant to this action, the insurance policy provides for payment of benefits to Plaintiff upon suffering an injury rendering Plaintiff totally disabled, a determination requiring Plaintiff be "unable to perform the substantial and material duties of [her] occupation," and "under the care and attendance of a Physician." (Doc. No. 1-2 at 15). Furthermore, "presumptive total disability" will be considered if Plaintiff suffers "the entire and irrevocable loss of sight of both eyes. . . . " Id.

On July 26, 2007, Plaintiff, who has long suffered from a chronic dry eye syndrome, was injured when some debris entered her eyes, exacerbating her dry eye condition, and causing marked swelling, redness, pain and blurriness, for which Plaintiff sought medical treatment, including, inter alia, undergoing two surgical procedures, over the course of almost two years. On June 3, 2009, however, Plaintiff was advised by her attending physicians, that the trauma to her eyes was permanent and could be neither alleviated nor lessened by further treatment. Plaintiff was also advised to avoid using her eyes for more than 20 minutes at a time, and to rest her eyes for two hours between use, rendering it impracticable that Plaintiff would be able to continue to perform the necessary functions of her profession as a financial consultant.

On August 20, 2009, Plaintiff submitted a claim seeking to receive disability benefits pursuant to the insurance policy issued by Provident. The claim was initially denied on January 11, 2010 on the basis that Plaintiff's eye impairment did not restrict or limit Plaintiff so as to prevent Plaintiff from performing the duties of her occupation. Plaintiff appealed the claim denial and, on May 26, 2010, the denial was upheld by Defendant.

On June 18, 2010, Plaintiff commenced this action in New York Supreme Court, Erie County, alleging Defendants have wrongly denied Plaintiff's claim for payment of disability benefits in accordance with the insurance policy. Plaintiff asserts four grounds for relief on which she seeks to recover against both Defendants including claims for (1) declaratory relief ("First Claim"); (2) breach of contract ("Second Claim"); (3) bad faith and attorney's fees ("Third Claim"); and (4) attorney's fees on the breach of contract claim ("Fourth Claim"). On July 7, 2010, Defendants removed the action asserting diversity of citizenship as the basis for jurisdiction in this court. Defendants filed an answer on July 27, 2010 (Doc. No. 6).

On March 14, 2011, Defendants filed a motion for judgment on the pleadings (Doc. No. 16) ("Motion for Judgment"), the Memorandum in Support of Defendants' Motion for Judgment on the Pleadings (Doc. No. 17) ("Defendants' Memorandum -Judgment"). On May 17, 2011, Plaintiff filed Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment on the Pleadings (Doc. No. 27) ("Plaintiff's Response - Judgment"), with attached exhibits A through F ("Plaintiff's First Exh(s). __"). On June 3, 2011, Defendants' filed the Reply Memorandum in Further Support of Defendants' Motion for Judgment on the Pleadings (Doc. No. 31)

("Defendants' Reply - Judgment").

On August 1, 2011, Plaintiff filed a motion seeking leave to amend the Complaint (Doc. No. 43) ("Plaintiff's Motion"), supported by the attached Memorandum in Support of Plaintiff's Motion to Amend Her Complaint (Doc. No. 43-1) ("Plaintiff's Memorandum").

On August 29, 2011, Defendants filed a motion to compel Plaintiff to submit to a physical examination (Doc. No. 44) ("Motion to Compel"), the Declaration of Paul K. Stecker, Esq. (Doc. No. 45) ("Stecker Declaration"), with attached exhibits A through I ("Defendants' Exh(s). __"), and the Memorandum of Law in Support of Defendants' Motion for an Order Directing Plaintiff to Submit to a Physical Examination and Extending Defendants' Time to Provide the Report of Expert Witness James F. Twist, M.D. (Doc. No. 46) ("Defendants' Memorandum - Compel").

On September 6, 2011, Defendants filed the Memorandum in Opposition to Plaintiff's Motion to Amend Complaint to Add Claims Under Massachusetts Unfair Practices Statutes (Doc. No. 48) ("Defendants' Response"). On September 20, 2011, Plaintiff filed the Supplemental Affidavit of Gregory Stamm, Esq., Regarding Plaintiff's Motion to Amend Complaint (Doc. No. 53) ("Stamm Affidavit"), with attached Exhibit A (Doc. No. 53-1) ("Stamm Exh.").*fn2

On September 30, 2011, Plaintiff filed Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for an Order Directing Plaintiff to Submit to a Physical Examination and Extending Defendants' Time to Provide the Report of Expert Witness James F. Twist, M.D. (Doc. No. 55) ("Plaintiff's Response - Compel"), with attached exhibits A through G ("Plaintiff's Compel Exh(s). __"). On October 13, 2011, Defendants filed the Reply Memorandum in Further Support of Defendants' Motion for an Order Directing Plaintiff to Submit to a Physical Examination and Extending Defendants' Time to Provide the Report of Expert Witness James F. Twist, M.D. (Doc. No. 56) ("Defendants' Reply - Compel").

By letter to the undersigned filed November 4, 2011 (Doc. No. 57) ("November 4, 2011 letter"), Defendants' counsel, Mr. Stecker, advised that Plaintiff, in papers filed regarding another motion not presently before the undersigned,*fn3 has withdrawn her claims for anticipatory repudiation, bad-faith claim denial, punitive damages, and attorneys' fees, such that the only claim for relief asserted in the Complaint against both Defendants is Plaintiff's Second Claim for breach of contract which remains pending against both Defendants. Plaintiff's withdrawal of her claims for anticipatory repudiation, bad-faith claim denial, punitive damages, and attorney's fees was ordered by text order entered November 9, 2011 (Doc. No. 59).

Oral argument was deemed unnecessary.

Based on the following, Defendants' motion for partial judgment on the pleadings should be converted to a motion for partial summary judgment and should be GRANTED; Plaintiff's motion for leave to file an amended complaint is DENIED; and Defendants' motion to compel is GRANTED.

DISCUSSION

1. Judgment on the Pleadings

Although Defendants move for partial judgment on the pleadings dismissing the First, Third, and Fourth Claims as against both Defendants, and the Complaint in its entirety as against Unum, as stated, supra, at 5, Plaintiff's withdrawal of her anticipatory repudiation, bad-faith claim denial, punitive damages, and attorneys' fees claims leaves only the Second Claim for breach of contract pending against Unum subject to Defendants' motion for judgment on the pleadings. The court's discussion of Defendants' Motion for Judgment is thus limited to Plaintiff's Second claim alleging breach of contract against Unum.

Defendant seeks judgment on the pleadings on the Second Claim against Unum on the basis that Unum is not a proper party to this action given that neither Unum's status as Provident's parent company nor Plaintiff's allegation that Unum "controls" Provident provides a basis on which Plaintiff, should she establish entitlement to benefits under the insurance policy, could recover against Unum. Defendants' Memorandum - Judgment, at 10-11 (quoting Complaint ΒΆ 10). In opposition, Plaintiff argues that the breach of contract claim should not dismissed as against Unum not only because Unum is Provident's parent company, but Unum's "name and 'fingerprints' are all over every aspect of Plaintiff's claims file." Plaintiff's Response - Judgment at 14. Plaintiff further asserts that dismissal of the claim as against Unum before discovery is complete would be premature. Id. In further support of their motion, Defendants assert that Plaintiff has failed to identify the basis for her claim that any Unum personnel were involved in the decision denying Plaintiff's ...


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