Jorstad v. Connecticut General Life Ins. Co., Civ. A. No. 91-12042-WJS.

• Decision Date: 14 February 1994
• Docket Number: Civ. A. No. 91-12042-WJS.
• Citation: 844 F. Supp. 46
• Parties: Nancy K. JORSTAD, Plaintiff, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

844 F. Supp. 46

Nancy K. JORSTAD, Plaintiff, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant.

Civ. A. No. 91-12042-WJS.

United States District Court, D. Massachusetts.

February 14, 1994.

James D. O'Brien, Jr., O'Brien, Bernardin & Deren, Worcester, MA, for plaintiff.

Robert G. Baynes, Jr., Philip W. Riley, Law Offices of Philip J. McCarthy, Boston, MA, for defendant.

MOTION OF DEFENDANT, CONNECTICUT GENERAL LIFE INSURANCE COMPANY, FOR SUMMARY JUDGMENT (DOCKET ENTRY # 8)

BOWLER, United States Magistrate Judge.

On December 3, 1993, the parties executed a consent to proceed before this court for all further proceedings, including trial, pursuant to 28 U.S.C. § 636(c). (Docket Entry # 11). Also on December 3, 1993, defendant Connecticut General Life Insurance Company ("CG") filed a motion for summary judgment. (Docket Entry # 8). Plaintiff Nancy K. Jorstad ("plaintiff") opposes summary judgment. (Docket Entry ## 12 & 13). On January 11, 1994, this court held a hearing and took the motion (Docket Entry # 8) under advisement.

BACKGROUND

Plaintiff originally filed her complaint requesting a jury in Massachusetts Superior Court. Thereafter, CG filed a timely notice removing this case to the United States District Court for the District of Massachusetts. (Docket Entry # 1).

Plaintiff's two count complaint seeks recovery for disability benefits under state law. She claims that CG improperly terminated her disability benefits in contravention of an employee welfare benefit plan for airplane flight attendants maintained by plaintiff's former employer, Eastern Air Lines, Inc. ("Eastern"). (Docket Entry ## 1 & 10, Ex. 1).

Count I alleges a breach of contract and Count II alleges a violation of Massachusetts General Laws chapter 93A ("chapter 93A"). (Docket Entry #1). Plaintiff concedes, however, and this court agrees, that her complaint is preempted by the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. ("ERISA"). She also acknowledges that, in actuality, "she is bringing an action pursuant to ERISA's provisions in 29 U.S.C. § 1132(a)(1)(B) to recover benefits due to her under the terms of the plan, and to clarify her rights to future benefits under the terms of the plan." (Docket Entry # 12, p. 5). Consequently, under Rule 15(b), Fed.R.Civ. P., this court considers plaintiff's action as if plead under ERISA for a denial of benefits due under section 1132(a)(1)(B).

As a procedural matter affirmatively raised by CG, ERISA preempts the two counts in the complaint brought under state law to recover terminated disability benefits. See Nash v. Trustees of Boston University, 946 F.2d 960, 964 & n. 8 (1st Cir.1991); Wickman v. Northwestern National Insurance Company, 908 F.2d 1077, 1082 (1st Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990) (citing Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)); see, e.g., Cromwell v. Equicor-Equitable HCA Corporation, 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, ___ U.S. ___, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992) (collecting cases wherein state claims for breach of contract, promissory estoppel, negligence and misrepresentation of benefits were preempted by ERISA); Best v. AGFA Compugraphic, 1992 WL 390713 at *1 (D.Mass. December 9, 1992) (cause of action, interpreted as one for improper claim settlement practices under chapter 93A, preempted by ERISA).

In addition, although the First Circuit has yet to address the right to a jury trial under ERISA, this court recognizes that "the majority of courts" examining the issue generally hold that "no right to a jury trial exists in ERISA actions." Berlo v. McCoy, 710 F.Supp. 873, 874 (D.N.H.1989) (plan participant's demand for jury stricken in action alleging breach of fiduciary duty); see, e.g., Turner v. Leesona Corporation, 673 F.Supp. 67, 70-71 (D.R.I.1987) (motion to strike jury demand allowed in action for benefits due under long-term disability policy); Wilson v. Connecticut General Life Insurance Company, 670 F.Supp. 52, 53-54 (D.Me.1987) (suit for pension benefits under ERISA deemed equitable in nature; jury demand therefore stricken); Gucciardi v. Gencorp Inc., 1987 WL 30976 at *2 (D.Mass. December 10, 1987) (noting that plaintiff premised ERISA claim on breach of contract theory, court nevertheless characterized ERISA claim as equitable and struck jury demand); Strout v. GTE Products Corporation, 618 F.Supp. 444, 445-446 (D.Me.1985) (action to recover pension benefits under section 502(a)(1)(B) of ERISA was equitable; jury demand therefore stricken); see also Fuller v. Connecticut General Life Insurance Co., 733 F.Supp. 462, 463 (D.Mass.1990) (plan participant under ERISA not entitled to jury trial under section 1132(a)(1)(B)).

For purposes of summary judgment, this court finds the following facts.

On July 20, 1977, plaintiff, while working as a flight attendant for Eastern, was struck from behind by a meal cart and injured her back. At the time, she was a participant in the employee welfare benefit plan for flight attendants ("the plan") maintained by Eastern. (Docket Entry # 10, Ex. 1; Docket Entry # 13). CG issued the group policy to Eastern insuring benefit payments under the plan ("the policy"). Eastern employees received certificates of insurance explaining the benefits under the policy.¹ (Docket Entry # 10, Ex. 1, 2 & 4).

The policy provides disability benefits to employees who become disabled due to an accidental bodily injury "while insured under the policy." (Docket Entry # 10, Ex. 2, p. 12 & Ex. 4, p. 8B). The certificate of insurance ("the certificate"), which explains the benefits provided and tracks the language of the policy, reads as follows:

If sickness or accidental bodily injury disables an Employee so that he is completely prevented from performing the duties of his occupation or employment and if the disability continues after the Benefit Waiting Period shown in the Schedule of Benefits, the Insurance Company will pay monthly income in an amount determined from the Schedule of Benefits. Such monthly income will be payable for the period during which the disability continues after the Benefit Waiting Period, but for no longer than 24 months....

If an Employee is so disabled that he is completed (sic)² prevented from engaging in any occupation or employment for which he is qualified, or may reasonably become qualified, based on his training, education or experience, and if monthly income has been payable for 24 months, the Insurance Company will continue monthly income payments during the period he remains so disabled.

(Docket Entry # 10, Ex. 2; emphasis added).

The benefit waiting period, as defined in the policy, commences when an employee becomes disabled and continues until the end of the period shown in the schedule of benefits, i.e., six months.³ (Docket Entry # 10, Ex. 4). As indicated in the language of the certificate and the policy, in order to initially receive disability benefits for the first 24 month period after expiration of the six month waiting period, the employee must be prevented from engaging in her occupation, i.e., that of a flight attendant. After expiration of the initial 24 month period of disability, however, benefits are payable in the event an employee is completely prevented from engaging in any occupation or employment.

The certificate and the policy also provide an explanation of when insurance terminates. Under the heading, "Termination of Insurance," the certificate and the policy state that insurance "automatically terminates on the earliest of" a number of dates, including "the date of termination of employment." (Docket Entry # 10, Ex. 2 & 4). Shortly thereafter, under the heading "Extension of Long Term Disability Benefits," the certificate and the policy provide as follows:

If disability for which Monthly Income is payable commences while this policy is in force, Monthly Income will be payable after termination of the policy to the same extent as if the policy had not terminated.

(Docket Entry # 10, Ex. 2 & 4).

Under the certificate and the policy, the claimant must provide the insurance company (CG) written notice of the claim. Upon receipt of written notice, CG would then furnish claim forms to the claimant or to the employer for delivery to the claimant. (Docket Entry # 10, Ex. 2 & 4).

Plaintiff applied and received disability benefits for the initial 24 month period. CG also paid plaintiff disability benefits "for a time thereafter," according to Byron L. Evans ("Evans"), formerly employed by CG as Regional Director of the Special Risk Operations Division in Dallas, Texas. Evans avers that he is personally familiar with plaintiff's disability claim. (Docket Entry # 10, Ex. 1).

After the July 1977 accident, plaintiff began an exercise program and wore a body brace covering her torso on a daily basis for "almost a year" in accordance with treatment prescribed by an orthopedic surgeon. (Docket Entry # 13). On or about December 22, 1977, plaintiff consulted Dr. Gerald Steinberg ("Dr. Steinberg") of the Department of Surgery of the University of Massachusetts Medical School Department of Orthopedic Surgery located in Worcester, Massachusetts.⁴ (Docket Entry # 13 & 10, Ex. 4). At the time, x-rays showed an old compression fracture of the fourth vertebrae sustained from an injury in 1975. After determining that the July 1977 accident aggravated her prior condition, Dr. Steinberg placed plaintiff on anti-inflammatory medications and an exercise program. (Docket Entry # 10, Ex. 4; Docket Entry # 13).

Despite the above measures, plaintiff's symptoms did not abate. On October 17, 1978, Dr. Steinberg admitted plaintiff to the University of Massachusetts Medical Center for further testing. Test results indicated a posterior protrusion of the fourth vertebral body, a slight narrowing of the dural space and mild radiculopathy⁵ of the fifth vertebrae. Dr. Steinberg...