Buote v. Verizon New England

• Decision Date: 12 March 2002
• Docket Number: No. 2:00-CV-475.,2:00-CV-475.
• Citation: 190 F.Supp.2d 693
• Parties: Kevin BUOTE and Kimberly Buote Plaintiffs, v. VERIZON NEW ENGLAND and Bell Atlantic Communications, Inc. Defendants.
• Court: U.S. District Court — District of Vermont

190 F.Supp.2d 693

Kevin BUOTE and Kimberly Buote Plaintiffs, v. VERIZON NEW ENGLAND and Bell Atlantic Communications, Inc. Defendants.

No. 2:00-CV-475.

United States District Court, D. Vermont.

March 12, 2002.

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Thomas C. Bixby, Esq., McCarty Law Offices, Brattleboro, VT, for Kevin Buote, Kimberly Buote, plaintiffs.

Potter Stewart, Jr., Esq., Kirsten A. Beske, Esq., Potter Stewart Law Offices, P.C., Brattleboro, VT, for Verizon New England, Bell Atlantic Communications Inc., defendants.

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiffs Kevin and Kimberly Buote brought suit against defendants Verizon New England ("Verizon") and Bell Atlantic Communications (collectively, "Bell Atlantic") on November 2, 2000 in Vermont State Court. Bell Atlantic subsequently removed the case to this court. Kevin Buote ("Buote") claims breach of contract (counts I and VII), insurance bad faith (counts II and VIII), and breach of fiduciary duties (counts III and IX) by Bell Atlantic during its handling of his workers' compensation claim.¹ Kim Buote brings a claim of loss of consortium (count X) stemming from the alleged damages caused to Buote. On July 30, 2001 Bell Atlantic moved for summary judgment on all of the Buotes' claims based on preemption by section 301(a) of the Labor Management and Relations Act, 1947 ("LMRA"), 29 U.S.C. § 185(a), and section 514(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1144(a), and exclusion by section 622 of the Vermont Workers' Compensation Act ("VWCA"), Vt. Stat. Ann. tit. 21, § 622. (Paper 30). For the reasons described below, the Court GRANTS in part and DENIES in part Bell Atlantic's' motion for summary judgment.

I. BACKGROUND

A. Facts

The following facts are viewed, as they must be when considering a motion for summary judgment, in the light most favorable to the non-moving parties, the Buotes. In 1997 Buote was employed as a splice technician for Bell Atlantic. On October 27, 1997 he was injured in the course of his employment when he fell from a ladder while servicing a telephone cable. As a result of this fall Buote suffered injuries including a broken wrist and finger, fractures of the orbit and sinus, and facial lacerations. He returned to work as a splice technician for Bell Atlantic in January 1998.

On or about January 1, 2000 Buote began to suffer dizziness, headaches, and blurred vision. A few weeks later he reported his condition to his immediate supervisor. On January 27, 2000 Buote met with a Dr. Leppman who diagnosed his condition as related to the October 1997 injury. Dr. Leppman also determined that Buote's condition made him unable to perform his work as a splice technician.

Buote informed Bell Atlantic's compensation adjuster, Steve Gottsche ("Gottsche"), of his condition. Despite being informed of Buote's previous fall and Dr. Leppman's diagnosis linking Buote's condition to that fall, Gottsche denied Buote's workers' compensation claim because he found that Buote's condition was not work-related. Instead he placed Buote on non-occupational disability pursuant to Bell Atlantic's Disability and Sickness Plan. During the winter and spring of 2000, Buote's doctors maintained that Buote's condition was related to the October 1997 fall and that it prevented him from working as a splice technician.

Despite these consistent medical determinations, on May 21, 2000 Buote was terminated from non-occupational disability by Bell Atlantic and was requested to return to work. The notice provided to Buote stated that his non-occupational disability benefits were terminated because he had not provided Bell Atlantic "with sufficient clinical information to indicate [he was], or continue[d] to be, disabled from working." Bell Atlantic Letter, 5/24/000 at 1 (Paper 37, Ex. 13). At this time Buote sought and obtained legal representation. During an informal conference with the Vermont Workers' Compensation Board in July 2000, the Workers' Compensation Specialist, Janet LaPerle ("LaPerle"), determined that Buote's current medical condition was a result of the October 1997 work injury. LaPerle requested that Bell Atlantic "reinstate temporary total disability benefits effective January 20, 2000" and that these benefits be paid "under the workers' compensation policy for Bell Atlantic." LaPerle Letter, 7/18/2000 (Paper 37 Ex. 14). She further required that these benefits be paid to Buote immediately, within ten days after the conference.

Between July of 2000 and February of 2001, Bell Atlantic repeatedly failed to provide Buote with the appropriate workers' compensation benefits in a timely manner. In particular, despite LaPerle's clear request that Bell Atlantic provide Buote with the workers' compensation benefits within ten days of their conference, on August 4, 2000 Buote's attorney wrote to Gottsche that Buote had not yet received a check. Buote's attorney sent another letter on August 21, 2000 stating that Buote had still not received a check. Even after a check was received on August 28, 2001 similar delays in Buote's receipt of subsequent checks continued until early February 2001. During this time Bell Atlantic also failed to provide Buote with checks for the correct amount or with information on reassignment within Bell Atlantic to positions appropriate for his condition. These failures continued despite persistent letters and phone calls from Buote's attorney requesting that the payments be sent and explaining the economic hardship the delays and incorrect benefit amounts were causing Buote's family. In these letters, Buote's attorney also repeatedly informed Bell Atlantic of various job-openings within the company that Buote felt he would be able to undertake despite his condition. Buote has identified numerous other Bell Atlantic positions open during this time period that he would have been qualified for and able to undertake despite his disability.

Based on the delays and inaccuracies in the benefit payments, on April 19, 2001 Laura K. Collins, Director of Workers' Compensation in Vermont, recommended that Bell Atlantic pay Buote's attorney's fees for 22 hours of work. At present Verizon has paid Buote all past due wages due under the VWCA and these attorney's fees, as well as a lump sum for permanent partial disability resulting from the 1997 fall.²

During these events Buote was a member of the International Brotherhood of Electrical Workers, AFL-CIO Local 2326 (the "Union"). On or about January 27, 2000 Buote contacted his Union representative and informed the representative of his "situation."³ He continued to contact his Union representative every other weekday, however, the Union did not conduct an investigation into his placement on non-occupational disability instead of workers' compensation. Neither Buote nor the Union filed a formal grievance regarding Buote's workers' compensation claim using the procedures set out in the agreement between the Union and Verizon ("Labor Contract"). See Union Agreements, Effective Aug. 6, 2000 and Aug. 9, 1998, Art. G8 (Paper 32, Ex. B).

During the period in which Bell Atlantic's payments to Buote were denied, delayed, and/or incorrect, Buote and his family faced resulting economic hardship, including eviction from their home and reliance on public assistance. In addition, Buote received benefit checks that did not include the same pay differential that he received while on workers' compensation in 1997 after his fall.⁴ Finally, despite Buote's suggestions of open positions that he would be willing and able to fill and the availability of various other job openings during that time, Bell Atlantic did not offer Buote re-employment. Presently Buote has obtained a lower paying job⁵ and has been forced to relocate.

B. Relevant Provisions of the VWCA

The VWCA regulates compensation of workers for "personal injury by accident arising out of and in the course of employment." Vt. Stat. Ann. tit. 21, § 618 (Lexis Supp.2001). Personal injury is defined to include "occupational diseases, death resulting from injury within two years." Id. § 601(7). Among other benefits, the VWCA guarantees employees certain medical benefits, id. § 640, as well as wage compensation when the employee is unable to work as a result of disability caused by the injury, id. §§ 642, 643, 646. When disability is permanent, either total or partial, the employer has additional monetary support obligations. Id. § 644, 648. The VWCA also provides benefits involving vocational rehabilitation. Under section 641, "[w]hen as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment." Id. § 641.

The VWCA requires employers to secure payment of compensation for their employees in one of four ways, including through self-insurance. Id. § 687. In this case Bell Atlantic is self-insured.

II. SUMMARY JUDGMENT STANDARD

Summary judgment should be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of coming forward with those parts of the record it feels demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e).

When evaluating a motion for summary judgment, the court is required to view the evidence in the light most favorable to the nonmoving party. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct....