Desrochers v . Manchester Body CV-94-604-SD 03/24/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Desrochers; Vicki Desrochers
v. Civil N o . 94-604-SD
Manchester Body & Fender, Inc., et al
O R D E R
This civil action, removed from state court, arises out of
the failure of defendants to provide plaintiffs' dependent
daughter with health insurance coverage when she became seriously
ill. The court has previously ruled that all of plaintiffs'
state law claims (negligence, breach of fiduciary duty, and
misrepresentation) are preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq.
See Order of December 2 1 , 1995. Thus, the amended complaint
currently has one viable count under ERISA.
Presently before the court is defendant Anthony Cilwa's
motion to dismiss (document 7 4 ) , to which plaintiffs object. As
both sides rely on matters outside the pleadings, the court
herewith converts defendant's motion to a motion for summary
judgment. See Rule 12(b), Fed. R. Civ. P. This decision should not represent an unfair surprise to either side--plaintiffs'
objection expressly requests that defendant's motion be so
treated.
Background1
Until May 1994, plaintiff Anthony Desrochers was
employed by defendant Manchester Body & Fender (MB&F) as a
painter and body specialist, working in that capacity under the
direct supervision of defendant Thomas Redburn. While so
employed by MB&F, plaintiff participated in the health insurance
plan offered through the Travelers Insurance Company.
In or about June 1991, a Request for Group Insurance--Health
Statement and Employment Card was submitted to Travelers
purportedly on behalf of the Desrochers. Said card, subscribed
by the alleged forged signatures of both Anthony and Vicki
Desrochers, indicated a preference on their part to not include their daughter Laura as a beneficiary under the plan.
Some time subsequent to the submission of the insurance
paperwork to Travelers, Laura Desrochers was hospitalized and
ultimately diagnosed as having pulmonic stenosis, patent foramen
1 This Background section has been taken verbatim from a previous order and is included solely to orient the reader as to some of the relevant alleged facts. See Order of December 2 1 , 1995.
2 ovale.2 As a result of this initial hospitalization, plaintiffs
became apprised of the fact that, unbeknownst to them, their
daughter was indeed not covered under the medical insurance
policy issued by Travelers. Plaintiffs maintain they neither
signed the insurance card nor ever indicated in any way to any of
the defendants a desire on their part to exclude their daughter
from their medical insurance coverage. Consequently, plaintiffs have both incurred a vast amount of medical bills and, due to what is now a pre-existing condition, are unable to obtain alternate insurance coverage for their daughter. The amended four-count complaint filed in this court seeks equitable relief in the form of policy coverage, both past and future, as well as compensatory relief for, inter alia, past medical bills and expenses.
Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman
v . Prudential Ins. C o . of Am., 74 F.3d 323, 327 (1st Cir. 1996).
Since the purpose of summary judgment is issue finding, not issue
2 A pulmonary stenosis is described as a "narrowing of the opening between the pulmonary artery and the right ventricle, usually at the level of the valve leaflets." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1576 (28th ed. 1994).
3 determination, the court's function at this stage "'is not [ ] to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Stone &
Michaud Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065,
1068 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 249 (1986)).
When the non-moving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v . Catrett,, 477 U.S.
317, 322-23 (1986). It is not sufficient to "'rest upon mere
allegation[s] or denials of his pleading.'" LeBlanc v . Great Am.
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (quoting Anderson,
supra, 477 U.S. at 2 5 6 ) , cert. denied, ___ U.S. ___, 114 S . C t .
1398 (1994). Rather, to establish a trial-worthy issue, there
must be enough competent evidence "to enable a finding favorable
to the non-moving party." Id. at 842 (citations omitted).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the non-moving party's favor. Anderson, supra, 477 U.S. at
255. Nevertheless, "[e]ven in cases where elusive concepts such
as motive or intent are at issue, summary judgment may be
appropriate if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v . R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st
4 Cir. 1990) (citations omitted).
2. The Merits
Defendant Cilwa argues in his pro se motion that plaintiffs'
ERISA claim is flawed because they lack evidence that could
support the conclusion that his conduct was the cause of their
harm. He argues that defendant Travelers declined to cover
plaintiffs' daughter under the group plan because it determined
that, given her history, she represented an unacceptable level of
risk. To support his position, Cilwa submits a letter of
declination sent to plaintiffs by Consolidated Group Trust, the
health plan administrator. From this letter, Cilwa asks that the
court infer that plaintiffs were not harmed by any conduct of his
in failing to properly obtain insurance on behalf of plaintiffs'
daughter.
Plaintiffs respond by submitting excerpts from Cilwa's deposition testimony in which he admits that he knew that the
Desrochers wanted coverage for their daughter. He also testified
that he neglected to recognize mistakes in the Desrochers'
insurance application with respect to information relating to
their "coverage request" and "dependent information." See
Deposition of Anthony Cilwa at 4 8 , 55-56 (attached to plaintiffs'
objection). The record also reveals that the plaintiffs'
daughter was not declined coverage until after she became ill and
had received health care. Under these circumstances, a
5 reasonable jury could find that Cilwa's failure to file a timely
and accurate request for health coverage caused plaintiffs to
learn about the denial when it was too late for them to find
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Desrochers v . Manchester Body CV-94-604-SD 03/24/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Desrochers; Vicki Desrochers
v. Civil N o . 94-604-SD
Manchester Body & Fender, Inc., et al
O R D E R
This civil action, removed from state court, arises out of
the failure of defendants to provide plaintiffs' dependent
daughter with health insurance coverage when she became seriously
ill. The court has previously ruled that all of plaintiffs'
state law claims (negligence, breach of fiduciary duty, and
misrepresentation) are preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq.
See Order of December 2 1 , 1995. Thus, the amended complaint
currently has one viable count under ERISA.
Presently before the court is defendant Anthony Cilwa's
motion to dismiss (document 7 4 ) , to which plaintiffs object. As
both sides rely on matters outside the pleadings, the court
herewith converts defendant's motion to a motion for summary
judgment. See Rule 12(b), Fed. R. Civ. P. This decision should not represent an unfair surprise to either side--plaintiffs'
objection expressly requests that defendant's motion be so
treated.
Background1
Until May 1994, plaintiff Anthony Desrochers was
employed by defendant Manchester Body & Fender (MB&F) as a
painter and body specialist, working in that capacity under the
direct supervision of defendant Thomas Redburn. While so
employed by MB&F, plaintiff participated in the health insurance
plan offered through the Travelers Insurance Company.
In or about June 1991, a Request for Group Insurance--Health
Statement and Employment Card was submitted to Travelers
purportedly on behalf of the Desrochers. Said card, subscribed
by the alleged forged signatures of both Anthony and Vicki
Desrochers, indicated a preference on their part to not include their daughter Laura as a beneficiary under the plan.
Some time subsequent to the submission of the insurance
paperwork to Travelers, Laura Desrochers was hospitalized and
ultimately diagnosed as having pulmonic stenosis, patent foramen
1 This Background section has been taken verbatim from a previous order and is included solely to orient the reader as to some of the relevant alleged facts. See Order of December 2 1 , 1995.
2 ovale.2 As a result of this initial hospitalization, plaintiffs
became apprised of the fact that, unbeknownst to them, their
daughter was indeed not covered under the medical insurance
policy issued by Travelers. Plaintiffs maintain they neither
signed the insurance card nor ever indicated in any way to any of
the defendants a desire on their part to exclude their daughter
from their medical insurance coverage. Consequently, plaintiffs have both incurred a vast amount of medical bills and, due to what is now a pre-existing condition, are unable to obtain alternate insurance coverage for their daughter. The amended four-count complaint filed in this court seeks equitable relief in the form of policy coverage, both past and future, as well as compensatory relief for, inter alia, past medical bills and expenses.
Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman
v . Prudential Ins. C o . of Am., 74 F.3d 323, 327 (1st Cir. 1996).
Since the purpose of summary judgment is issue finding, not issue
2 A pulmonary stenosis is described as a "narrowing of the opening between the pulmonary artery and the right ventricle, usually at the level of the valve leaflets." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1576 (28th ed. 1994).
3 determination, the court's function at this stage "'is not [ ] to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Stone &
Michaud Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065,
1068 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 249 (1986)).
When the non-moving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v . Catrett,, 477 U.S.
317, 322-23 (1986). It is not sufficient to "'rest upon mere
allegation[s] or denials of his pleading.'" LeBlanc v . Great Am.
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (quoting Anderson,
supra, 477 U.S. at 2 5 6 ) , cert. denied, ___ U.S. ___, 114 S . C t .
1398 (1994). Rather, to establish a trial-worthy issue, there
must be enough competent evidence "to enable a finding favorable
to the non-moving party." Id. at 842 (citations omitted).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the non-moving party's favor. Anderson, supra, 477 U.S. at
255. Nevertheless, "[e]ven in cases where elusive concepts such
as motive or intent are at issue, summary judgment may be
appropriate if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v . R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st
4 Cir. 1990) (citations omitted).
2. The Merits
Defendant Cilwa argues in his pro se motion that plaintiffs'
ERISA claim is flawed because they lack evidence that could
support the conclusion that his conduct was the cause of their
harm. He argues that defendant Travelers declined to cover
plaintiffs' daughter under the group plan because it determined
that, given her history, she represented an unacceptable level of
risk. To support his position, Cilwa submits a letter of
declination sent to plaintiffs by Consolidated Group Trust, the
health plan administrator. From this letter, Cilwa asks that the
court infer that plaintiffs were not harmed by any conduct of his
in failing to properly obtain insurance on behalf of plaintiffs'
daughter.
Plaintiffs respond by submitting excerpts from Cilwa's deposition testimony in which he admits that he knew that the
Desrochers wanted coverage for their daughter. He also testified
that he neglected to recognize mistakes in the Desrochers'
insurance application with respect to information relating to
their "coverage request" and "dependent information." See
Deposition of Anthony Cilwa at 4 8 , 55-56 (attached to plaintiffs'
objection). The record also reveals that the plaintiffs'
daughter was not declined coverage until after she became ill and
had received health care. Under these circumstances, a
5 reasonable jury could find that Cilwa's failure to file a timely
and accurate request for health coverage caused plaintiffs to
learn about the denial when it was too late for them to find
alternative means of coverage. Therefore, the court finds and
rules that genuine issues of fact exist concerning the causation
issue raised by Cilwa.
Similarly, after reviewing the excerpts of Cilwa's
deposition testimony submitted by plaintiffs, the court finds and
rules that genuine issues of fact remain regarding whether Cilwa
acted as the agent of Travelers.
Ordinarily, this would end the court's analysis, but some
caveats are in order here. The court has only answered the
narrow questions placed before it by the parties--issues that
have been abstracted from the other elements necessary to sustain
plaintiffs' ERISA claim. This order does not address two rather
important issues. First, the court has not reassessed its
earlier decision, which found that plaintiffs' state law claims
were preempted by ERISA because they "related to" an employee
benefit plan. Since the court's previous order, several changes
in ERISA jurisprudence have occurred, suggesting that the court
should have taken a less expansive view of the scope of ERISA
preemption. See, e.g., California Div. of Labor Standards
Enforcement v . Dillingham Constr., N.A., Inc., ___ U.S. ___, 117
S . C t . 8 3 2 , 838 (1997); New York State Conference of Blue Cross
and Blue Shield Plans v . Travelers Ins. Co., 514 U.S. 645, ___,
6 115 S . C t . 1671, 1677 (1995); Burgio & Campofelice, Inc. v . New
York State Dep't of Labor, ___ F.3d ___, ___, 1997 WL 89191 (2d
Cir. Mar. 4 , 1997); Golas v . Homeview, Inc., 106 F.3d 1 , 4-10
(1st Cir. 1997) (Bownes, J., concurring). C f . Morstein v .
National Ins. Servs., 93 F.3d 715 (11th Cir. 1996) (holding, in
light of New York Blues, that ERISA did not preempt plaintiff's
state law tort claims against independent insurance agent and
insurer), cert. denied, 117 S . C t . 769 (1997). However, the
parties have not asked that the court reconsider its previous
order in light of this new precedent. In addition, as the issue
of ERISA preemption is complicated, the question is not so easily
answered by the court that it believes it can amend its prior
order sua sponte. It also should be noted that were the court to
address the question at this late date, the parties would be
significantly prejudiced, as the eve of trial is fast
approaching. Accordingly, the court expresses no opinion at this
point on the effect of the new precedent.
The second issue deserving brief mention concerns defendant
Cilwa's status as a fiduciary. In his pro se motion, Cilwa
states in conclusory fashion that he did not participate in the
decision to decline coverage for plaintiffs' daughter. See
Cilwa's motion ¶ 9. He states only that he played a part in the
application process. However, Cilwa cites no law and does not
explain how these facts are legally relevant. Perhaps Cilwa is
arguing that he is not a "fiduciary" as that term is defined in
7 ERISA, and therefore cannot be personally liable under ERISA.
But Cilwa neglects even to mention the word "fiduciary" or to set
forth how the term is defined under ERISA. This may well be a
situation where the lack of an attorney's assistance has
precluded Cilwa from making a legitimate argument. Nonetheless,
given the scantiness of Cilwa's argumentation, the court is
unable to rule on the merits of this issue.
Conclusion
For the reasons stated above, the court denies defendant
Cilwa's motion for summary judgment (document 7 4 ) .
SO ORDERED.
Shane Devine, Senior Judge United States District Court March 2 4 , 1997
cc: Peter G. McGrath, Esq. H . Jonathan Meyer, Esq. Anthony Cilwa, pro se Edward P. O'Leary, Esq.