Opinion
03 Civ. 3238 (SAS) 89471
December 16, 2003
Daniel A. Lindenfeld, Esq., New York, New York, for Plaintiff
Nicholas A. Penkovsky, Esq., Law Offices of Nicholas A. Penkovsky, P.C., New York, New York, for Plaintiff
Randi F. Knepper, Esq., Del Mauro, DiGiamo, Knepper Heck, New York, New York, for Defendant
OPINION AND ORDER
I. INTRODUCTION
Plaintiff Gayle C. Greifenberger filed an amended complaint on July 31, 2003 seeking long-term disability insurance benefits pursuant to the Employee Retirement Income Security Act ("ERISA"). Defendants Hartford Life Insurance Company ("Hartford") and El Al Israel Airlines Ltd. ("El Al") now move to dismiss the Complaint, and in the alternative for summary judgment.
See 7/31/03 First Amended Complaint ("Complaint"); 29 U.S.C. § 1132.
II. THE AMENDED COMPLAINT
Greifenberger alleges the following facts, all of which are deemed true for the purpose of this motion. Hartford is a corporation legally authorized to do business in New York, and legally engaged in the provision of disability insurance. El Al is a corporation doing-business in New York.
See Complaint, ¶¶ 5, 6.
See id., ¶¶ 7, 8.
In 1983, Greifenberger began employment in the Reservations Department of El Al. She remained employed by El Al in the same department until the time of her claimed disability. El Al provided Greifenberger with a Group Policy of Long Term Disability Insurance (the "Policy"). The Policy provides disability benefits for eligible claimants after an elimination period of disability, defined as "the first 180 consecutive days of any one period of Disability." The Policy provides that disability benefits become payable after the elimination period upon the submission of "proof of loss satisfactory to The Hartford." The Policy further provides that, should the Hartford deny a claim for benefits:
See id., ¶ 10.
Id.
See id., ¶ 11; Policy, Ex. A to Complaint.
Policy, at 3.
Policy, at 12.
you or your representative may appeal to The Hartford for a full and fair review. You may:
(1) request a review upon written application within 60 days of the claim denial;
(2) review pertinent documents; and
(3) submit issues and documents in writing.
A decision will be made by The Hartford no more than 60 days after the receipt of the request, except in special circumstances (such as the need to hold a hearing), but in no case more than 120 days after the request for review is received. The written decision will include specific references to the Policy provisions on which the decision is based.
See id., at 17.
The Policy additionally includes, under the heading "Claims Procedures," the following information:
2. Appealing Denial of Claims — If a claim for benefits is wholly or partially denied, notice of the decision shall be furnished to the employee. This written decision will:
(a) give the specific reason or reasons for denial;
(b) make specific reference to policy provisions on which the denial is based;
(c) provide a description of any additional information necessary to prepare the claim and an explanation of why it is necessary; and
(d) provide an explanation of the review procedure.
On a denied claim an employee or his representative may appeal to the Insurance Company for a full and fair review. The claimant may:
(a) request a review upon written application within 60 days of receipt of claim denial;
(b) review pertinent documents; and
(c) submit issues and comments in writing.
A decision will be made by the Insurance Company no more than 60 days after receipt of the request for review, except in special circumstances (such as the need to hold a hearing), but in no case more than 120 days after the request for review is received. The written decision will include specific reasons for the decision and specific references to the plan provisions on which the decision is based.
Id., at 20.
The Plan also provides that Hartford itself "ha[s] full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the group Insurance Policy." With respect to legal action, the Policy provides:
Id., at 15.
Legal action cannot be taken against The Hartford:
(1) sooner than 60 days after due Proof of Loss has been furnished; or
(2) 3 years after the time written Proof of Loss is required to be furnished according to the terms of the Policy (5 years in Kansas; 6 years in South Carolina).
Greifenberger alleges that she relied on this language in filing her Complaint.
See Complaint, ¶¶ 29-30.
On or about April 24, 2000, Greifenberger became disabled, having been diagnosed with carpal tunnel syndrome. Upon her diagnosis of total disability, Greifenberger served notice of her disability on Hartford and completed an Individual Disability Claim form. On or about October 24, 2000, El Al began forwarding information to Hartford at Hartford's request, including physician's narratives prepared by Greifenberger's physician, Dr. Isani. Dr. Isani's narratives reflect that Greifenberger underwent surgery on April 27, 2000 and September 27, 2000 to correct her carpal tunnel syndrome. Dr. Isani's records further indicate that Greifenberger was not working at the time of either surgery. However, Dr. Isani's records indicate that Greifenberger was working on July 24, 2000 and September 11, 2000.
See id., ¶ 17.
See id., ¶¶ 18, 19.
In considering a motion to dismiss, courts may not consider matters outside the pleadings. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). For purposes of Rule 12(b), the complaint includes "'any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.'"Id. (quoting International Audiotext Network, Inc. v. American Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995));see also Weinberg v. Mizuho Capital Markets Corp., No. 03 Civ. 2612, 2003 WL 22462022, at *1 n. 2 (S.D.N.Y. Oct. 30, 2003). Because the physician's narratives are referenced in the Amended Complaint, albeit not attached, I shall consider them in deciding this motion.See Complaint, ¶ 20; Physician's Narratives, Ex. F to 8/8/03 Affidavit of Paul D. Crosby, Claims Specialist for Hartford ("Crosby Aff.").
The same is true of the letter sent by Hartford, denying benefits to Greifenberger, discussed below. See Complaint, ¶¶ 21, 22; 3/20/01 Letter from Hartford to Greifenberger (the "Denial Letter"), Ex. G to Crosby Aff.
See Physician's Narratives, at 0062, 0065.
See id.
See id., at 0063, 0064.
On March 20, 2001, Hartford sent Greifenberger a letter denying her claim for benefits. In the Denial Letter, Hartford noted:
See Complaint, ¶¶ 21-22; Denial Letter.
Your employer reports your last day of work as 4/24/00.
Medical Statement submitted by Dr. Isani, based on examination date of 4/26/00, reports that you were disabled from regular duties or work.
Medical Statement submitted by Dr. Isani, based on examination date of 7/24/00, reports that you were working and not disabled from regular duties or work.
Medical Statement submitted by Dr. Isani, based on examination date of 9/11/00, reports that you were working and not disabled from regular duties or work.
Following the 180 day Elimination Period, your benefits would have been effective 10/22/00. As your physician reports you were working or able to work during that time frame, no benefits are payable and your claim must be denied.
If you have any additional information, not previously submitted, which you believe will assist us in evaluating your claim for LTD benefits, please forward that information to us within 60 days from the date of this letter. In particular, medical documentation that you were continuously Disabled throughout and beyond the Elimination Period may assist us in further evaluating your claim for benefits. The Hartford will review any additional information you submit, along with previously submitted information, and will notify you of the results of our review.
If you do not have additional information, "but you disagree with our denial decision, the Employee Retirement Income Security Act of 1974 (ERISA) provides you with the right to appeal our decision and review pertinent documents in your claim file. If you do not agree with the reason why your claim was denied, in whole or in part, and you wish to appeal our decision, you must write to us within sixty (60) days of the date of this letter. Your letter, which must be signed and dated by you or your legal representative, should clearly outline your position and any issues or comments you have in connection with your claim and our decision to deny your request for benefits under the policy. Once we receive your appeal, your claim will be reviewed based upon your statements and the documents and notes contained in your claim file. Upon completion of that review, we will advise you of our further determination.
Denial Letter, at 0010-0011.
Greifenberger has not received any disability payments pursuant to the Policy. On July 8, 2003, Greifenberger demanded that Hartford disburse to her all sums of money due under the Policy, and Hartford did not respond. Greifenberger has lost all her income since becoming disabled on April 24, 2000.
See Complaint, ¶ 24.
See Complaint, ¶ 31-32.
See id., ¶ 35.
Greifenberger alleges that defendants, through the Denial Letter, "wilfully, wrongfully, arbitrarily, capriciously and maliciously and without just cause denied Plaintiff's application for long term disability benefits." She further alleges that defendants were, or should have been, "at all times material to this action aware of Plaintiff's medical history and condition and that the documents furnished to them by Plaintiff support Plaintiff's claim of total disability."
See id., ¶ 28.
See id., ¶¶ 23, 26.
III. LEGAL STANDARD
A. 12(b)(6) Standard
Under the Federal Rules of Civil Procedure, a plaintiff need only plead "a short and plain statement of the claim" that will provide the defendant with fair notice of what the plaintiff's claim is and the grounds upon which it rests. A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" "The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be of feared in support thereof." Accordingly, courts must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor.
Fed.R.Civ.P. 8(a); see Conley v. Gibson, 355 U.S. 41, 47 (1957).
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)).
Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (citation and quotation marks omitted).
See Chambers, 282 F.3d at 152.
B. Exhaustion of Administrative Remedies
As required' by ERISA, the Policy document includes a claims procedure. An employee benefit plan must provide its participants with a reasonable opportunity to obtain a "full and fair review" after denial of a claim. The doctrine of exhaustion of administrative remedies rests on the principle "'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" In the ERISA context,
See Policy, at 17, 20; see Sanfilippo v. Provident Life and Casualty Ins. Co., 178 F. Supp.2d 450, 457 (S.D.N.Y. 2002).
See Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (citations omitted).
'The primary purposes of the exhaustion requirement are to: (1) uphold Congress' desire that ERISA trustees be responsible for their actions, not the federal courts; (2) provide a sufficiently clear record of administrative action if litigation should ensue; and (3) assure that any judicial review of fiduciary action (or inaction) is made under the arbitrary and capricious standard, not de novo.'
Id. at 594 (quoting Denton v. First National Bank of Waco, Texas, 765 F.2d 1295, 1300 (5th Cir. 1985), reh'g denied, 772 F.2d 904 (5th Cir. 1985)).
"It is well settled that timely exhaustion of plan remedies is a prerequisite to suit in federal court and that, absent appropriate equitable considerations, court action is barred absent such exhaustion." A claimant is "required to exhaust even if she [i]s ignorant of the proper claims procedure. If a plaintiff fails to allege that he or she has exhausted administrative remedies, the claim must be dismissed. Failure to exhaust remedies may be excused on the grounds of futility "only" where claimants make aclear and positive showing that pursuing available administrative remedies would be futile.'"
Sanfilippo, 178 F. Supp.2d at 458. See Denton, 765 F.2d at 1300; Tiger v. ATT Technologies Plan for Employees' Pensions. Disability Benefits, 633 F. Supp. 532, 534 (E.D.N.Y. 1999); Barnett v. International Bus. Machines Corp., 885 F. Supp. 581, 586-87 (S.D.N.Y. 1995); Ludwig v. NYNEX Serv. Co., 838 F. Supp. 769, 781 (S.D.N.Y. 1993).
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir. 2001).
See Benaim v. HSBC Bank USA, 94 F. Supp.2d 518, 519 (S.D.N.Y. 2000).
Davenport, 349 F.3d at 133 (quoting Kennedy, 989 F.2d at 594) (emphasis in original).
IV. DISCUSSION
A. Greifenberger Failed to Exhaust Administrative Remedies
Greifenberger cites the Second Circuit decision in Kennedy v. Blue Cross and Blue Shield in support of her assertion that: "An ERISA claimant need only exhaust those administrative appeals provided for in the relevant plan or policy." Greifenberger points to two allegedly ambiguous provisions of the Policy to support the contention that her act of bringing the instant suit, without administrative appeal, is permissible under the Policy appeal provisions. First, Greifenberger notes that the Policy states that "[o]n any denied claim, you or your representativemay appeal to the Hartford for a full and fair review," suggesting that administrative appeal under the Policy is optional. Greifenberger's interpretation is incorrect. The Second Circuit inKennedy, while construing the Federal Employees Health Benefit Act ("FEHBA"), held that such language was sufficient to establish a requirement of appeal before legal action could be taken. Second, Greifenberger points to a Policy provision specifying that "legal action cannot be taken against the Hartford (1) sooner than 60 days after Proof of Loss has been furnished; or (2) 3 years after the time written Proof of Loss is required to be furnished. . . ." Greifenberger suggests that she interpreted this language to mean that legal action may be initiated-at will by any claimant within broad time constraints. However, a claimant is required to exhaust available administrative appeal procedures "even if she [i]s ignorant of the proper claims procedure." Hartford unambiguously informed Greifenberger of its appeal procedure, and Greifenberger chose not to avail herself of that procedure. Greifenberger does not allege that she attempted to appeal Hartford's decision in any way prior to filing the Complaint. Therefore, Greifenberger has not stated a claim on which relief can be granted.
See 9/26/03 Plaintiff's Memorandum of Law in Opposition to Summary Judgment ("Opp. Mem."), at 10.
See id., at 11.
Id.; Policy, at 17.
See Kennedy, 989 F.2d at 593-94 (where FEHBA provided that, if a health benefit plan "denies a claim, the enrolleemay ask the plan to reconsider the denial," "Congress clearly intended this to be an added protection against improper conduct by a carrier, without forcing subscribers to resort to costly and time consuming litigation.") (emphasis in original); 5 U.S.C. § 8913.See also Sanfilippo, 178 F. Supp.2d at 452 (requiring administrative appeal when correspondence denying a claim stated "if you disagree with our determination YOU MAY SUBMIT A REQUEST FOR RECONSIDERATION") (emphasis added).
See Opp. Mem., at 11; Policy, at 17.
See Opp. Mem., at 11.
Davenport, 249 F.3d at 134.
B. Futility
Greifenberger claims that she is excused from the jurisdictional requirement of exhaustion of administrative remedies for the following reasons:
Plaintiff has shown that Defendant's claim that she briefly returned to work (albeit untrue) was not reviewed in compliance with the recurrent disability provision of the Policy. Plaintiff has also shown that Defendant cannot read the correct dates on her doctor's forms. Finally, Plaintiff has demonstrated that her employee records would have supported her claim that she did not return to work and that Defendant apparently either ignored or failed to examine these records that would have provided proof of Plaintiff's absence from work, her total disability and her inability to perform the duties of her job because of carpal tunnel syndrome. Most tellingly, Defendant denied Plaintiff's subsequent application for a disability policy when Defendant deemed Plaintiff medically unsuitable and uninsurable.
Opp. Mem., at 14.
As defendants rightly note, this last assignment of error is wholly irrelevant to the question of exhaustion of administrative remedies, The remaining assignments of error, though, consist entirely of factual assertions which Greifenberger could easily have submitted for review under the Policy. In fact, she was informed three times — twice in the Policy itself, and once in the Denial Letter — that Hartford would review her denial at her request and would consider pertinent documents and other evidentiary matter. Greifenberger cannot point to a single salient fact that meets the very high standard required for a showing of futility. Hence, she cannot be excused from the requirement that she exhaust all available administrative remedies.
See Defendants' Memorandum in Reply to Plaintiff's Opposition ("Reply Mem."), at 10.
See Policy, at 17, 20; Denial Letter.
See Kennedy, 989 F.2d at 594 (claimant must make a "clear and positive showing" of futility); Barnett, 885 F. Supp. at 587 (holding that even allegations that defendant had informed plaintiff that any application for long term disability benefits would be denied, if true, would not be sufficient to establish futility).
V. CONCLUSION
For the foregoing reasons, the Complaint is dismissed with prejudice, and without leave to amend, for failure to exhaust administrative remedies and for failure to state a claim upon which relief may be granted. The Clerk is directed to close this motion and this case.
SO ORDERED.