Espinosa v. Guardian Life Ins.

• Decision Date: 07 July 1994
• Docket Number: Civ. A. No. 94-10547-RCL.
• Citation: 856 F. Supp. 711
• Parties: Josef ESPINOSA, Plaintiff, v. GUARDIAN LIFE INSURANCE, Defendant.
• Court: U.S. District Court — District of Massachusetts

856 F. Supp. 711

Josef ESPINOSA, Plaintiff, v. GUARDIAN LIFE INSURANCE, Defendant.

Civ. A. No. 94-10547-RCL.

United States District Court, D. Massachusetts.

July 7, 1994.

COPYRIGHT MATERIAL OMITTED

Bennett H. Klein, Gay & Lesbian Advocates & Defenders, William Garza, Boston, MA, for Plaintiff.

Joseph F. Ryan, Mary J. Ryan, Lyne, Woodworth & Evarts, Boston, MA, for defendant.

MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

LINDSAY, District Judge.

The plaintiff, Josef Espinosa, filed this action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et. seq., to enforce rights he claims to past and future group health insurance benefits under a health insurance plan issued and administered by the defendant, Guardian Life Insurance Company of America, Inc. ("Guardian"). Espinosa now moves for a preliminary injunction (1) to prohibit Guardian from failing or refusing to provide him full accident and health insurance benefits coverage under his employer's group accident and health insurance plan; (2) to prohibit Guardian from interfering with, refusing payment of claims under, or cancelling or rescinding, his accident and health insurance benefits; and (3) to require Guardian to take all administrative and other necessary steps to implement the injunction.

After careful review of all of the affidavits, exhibits and briefs submitted by the parties, and their oral argument on the motion, the Court concludes that Espinosa has failed to demonstrate that he is likely to succeed on the merits at trial.¹ Therefore, the Court will deny Espinosa's motion. As the First Circuit has said, however:

... A district court's conclusions at the preliminary injunction stage are only attempts to predict probable outcomes. Thus, `a party losing the battle on likelihood of success may nonetheless win the war at a succeeding trial....'

Cohen v. Brown University, 991 F.2d 888, 902 (1st Cir.1993), quoting Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). Thus, whether Espinosa can regain what is lost to him on this motion is a question that must await a trial on the merits.

I. Findings of Fact.

The findings which follow represent the Court's determination as to the "probable existence" of the facts detailed below. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 848 F.Supp. 271, 273 (D.Mass.1994).

A. Espinosa's Health History

Espinosa tested positive in 1987 for the antibody to the human immunodeficiency virus ("HIV"). A positive HIV test result indicates that a person has been exposed to HIV; it does not mean that a person has acquired immune deficiency syndrome ("AIDS") or that he or she is even ill. An HIV-positive person may remain in excellent health for as long as ten or eleven years after being infected with HIV. AIDS is a disease manifested by the presence of specific, defined opportunistic infections, e.g., Pneumocystis Carinii Pneumonia, Kaposi's Sarcoma, lymphoma, or toxoplasmosis.

At the time Espinosa received his HIV-positive result, he felt well and understood the test result to mean only that he had been exposed to the virus, and not that he was suffering from any illness. Espinosa continues to feel well, has not experienced any health problems, and has led a busy, active life.

In 1987, Espinosa was a restaurant owner and chef. He was responsible for every facet of the business, from cooking to finances, and typically worked 60-80 hours per week. In 1989, he sold the restaurant and started an interior decoration business. From September of 1991 to the present, Espinosa has worked at Restaurant Navona ("Navona"), where he is now General Manager. In addition, he has continued his design business. A typical work week for him comprises sixty hours.

Espinosa's medical care provider, Jerald Feuer, by affidavit states that at all times subsequent to receiving his HIV test result in 1987, Espinosa has been in excellent health. According to Feuer, Espinosa has not had any problems or symptoms related to HIV. He has never received any medication or treatment for any sort of HIV-related problem.

Beginning in November of 1989, Espinosa went for checkups with Feuer to monitor Espinosa's health status.² The dates of these checkups were: November 8, 1989; February 14, 1990; June 22, 1990; December 11, 1990; March 9, 1991; October 8, 1991; April 8, 1992. In his notes of Espinosa's December 11, 1990 visit with him, Feuer referred to Espinosa's "six month HIV check up." In his March 9, 1991, Feuer noted that "Josef is back today for his quarterly HIV" visit. Likewise, the October 8, 1991 visit referred to HIV. During these visits, Espinosa gave blood samples. Feuer also checked Espinosa's weight, temperature and blood pressure, and examined his ears, eyes, nose and throat, and listened to his lungs. The Court concludes that all the medical visits between November 8, 1989 and April 8, 1992 were primarily intended to determine whether Espinosa was experiencing any HIV-related problems, and to monitor his general health in light of the fact that he was HIV-positive.

The blood sample was drawn to test the count of Espinosa's CD4 cells. CD4 cell blood tests are used as a marker of a person's immune status. A count of 500 or more indicates that an individual is capable of living a normal, active life. A decline over time indicates the individual's likely inability to resist infections. Espinosa's CD4 cell test results were as follows: November 8, 1989 — 563; February 14, 1990 — 556; June 18, 1990 — 638; December 11, 1990 — 524; March 14, 1991 — 468; October 8, 1991 — 516. According to Feuer, these CD4 cell counts "are not normal in the sense that they would be higher absent the presence of HIV infection." They are, however, consistently in a range in which HIV-positive persons are likely to stay healthy and free of infections or other symptoms.

Espinosa has suffered from fatigue, but Feuer states that the fatigue is the result of excessive work — not of HIV.

B. The Insurance Application.

After becoming a full-time employee of Navona, Espinosa filled out an application for Navona's group health insurance, issued and administered by Guardian. Espinosa completed the application on March 27, 1992.

The questions relevant to this action were 16 and 17. Question 16 asked whether Espinosa had

ever been treated for or ever had any known indication of heart disorder, high blood pressure, diabetes, rheumatic fever, stroke, stomach or intestinal trouble, genito-urinary disorder, cancer, tumor, injury to or pain or disorder of the back or neck, arthritis, chest pain, asthma, allergies, or respiratory illness, mental or nervous disorder?

Espinosa checked "no." Question 17 asked whether Espinosa had, "in the past five years (a) consulted or been examined by or treated by a physician, practitioner or specialist." Espinosa checked "yes." He was asked if, in the past five years, he had "(b) been in a hospital, sanitarium, or other institution for observation, diagnosis, treatment or an operation." Espinosa checked "no." He was asked whether, in the past five years, he had "been prescribed medication(s)." He checked "no."

The application asked that "for each `Yes' answer," the applicant "give details." The following information was given in response to the following items: Below "Ques. No." was written "17." Below "Name of Person" was written "Josef." Below "Medical Practitioner's Name and Address" was written "Jerry Fauer (sic) 16 Haviland St. Boston, MA." Under "Name and Address of Hospital," there was an arrow pointing to the address he had written under the previous blank. Espinosa left the space under "Condition" blank. Under "Duration of Symptoms, Treatment & Degree of Recovery," was written "Physicals." Under "Dates" was written "1/year."

In the text before Espinosa's signature, was written, among other things:

I hereby represent that the statements and answers to the questions are to the best of my knowledge and belief, full, complete and true. I understand that they shall form the basis upon which I may be included for insurance under the group plan.

Espinosa also signed a medical authorization, allowing his medical providers to release his medical records to Guardian.

In a supplement to the application, filled out on April 13, 1992, Espinosa was asked the date of his last physical examination. He wrote October 8, 1991. In fact, his last exam was April 8, 1992. He was asked what the results of the examination were. He wrote "ok." He was asked if any advice had been given. He wrote "no." He was asked if any medication had been prescribed. He wrote "no."

On April 21, 1992, Guardian approved Espinosa's application for health, life and accidental death and disability insurance, effective April 15, 1992 through Navona's group plan. By letter dated December 30, 1992, Guardian denied a pending benefits claim and rescinded and cancelled all of Espinosa's coverage. The letter stated that Espinosa had failed to disclose a "prior history of abnormal laboratory studies including treatments and consultations rendered at Fenway." Espinosa has been without health insurance since December of 1992.

II. Law

A. Applicable Law.

ERISA provides that a participant in an employee benefit plan may bring a civil action to "recover benefits due to him under the terms of his plan, to enforce his rights under the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). ERISA authorizes injunctive relief to "enjoin any act or practice which violates ... the terms of the plan, or ... to enforce ... the terms of the plan." 29 U.S.C. § 1132(a)(3).

Generally, an insurance plan which is regulated by ERISA is interpreted under federal law. Wickman v. Northwestern Nat. Ins. Co., 908 F.2d 1077, 1084 (1st Cir.1990); Pizzuti v. Polaroid Corp., 985 F.2d 13, 14 (1st Cir.1993); Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir.1989).

Several cases have...