Opinion
CIVIL ACTION NO. 01-2846.
May 30, 2002.
ORDER
This matter comes before the Court on motion for summary judgment filed by the plaintiff, Susan A. Philibert ("Philibert"). Having considered the record, the memoranda of counsel and the law, the Court has determined that summary judgment is inappropriate for the following reasons.
Philibert seeks benefits under a disability policy she purchased in 1989 from the defendant, the Equitable Life Assurance Society of the United States ("the Equitable"). She also seeks penalties under La. Rev. Stat. § 22:657(A) in this motion. She claims disability under the policy due to eye and back problems, that the defendant was untimely in its investigation of her claim and arbitrary and capricious in its denial. In support of her motion, the plaintiff attaches documentation including her affidavit, a copy of the policy and correspondence from the Equitable, various medical reports, descriptions of the requirements allegedly applicable to her occupation as a computer programmer and deposition extracts of her chiropractor.
The defendant opposes the motion with its own arsenal of documents that includes the affidavit of Karen Sweeney ("Sweeney"), the claims director responsible for the Equitable's determination. These exhibits include the claims file and the Equitable's file upon which Sweeney relied, medical and pharmacy reports, tax returns and deposition extracts. The plaintiff in reply memorandum challenges the authenticity and admissibility of the exhibits attached to the defendant's opposition based on the scope of Sweeney's personal knowledge. However, the Court finds that Sweeney did have sufficient personal knowledge to render the documents admissible for purposes of this motion. They provided the basis of Sweeney's denial.
In addition, the plaintiff challenges the opinion of Dr. Parisi offered by the defendant based on its untimeliness. There is an underlying dispute in this matter as to the lateness of certain doctors' reports, and by agreement the parties had previously agreed to extend the deadline for taking expert depositions. In this regard, the Court notes that the this is a first trial setting, and if more time is needed for discovery and trial preparation, it will entertain a motion to continue. The plaintiff can continue to use the timing of the various defense medical evaluations at trial in support of her position that the denial of benefits was arbitrary and capricious. For purposes of summary judgment, however, the defendant has shown the existence of genuine issues of material fact.
Accordingly,
IT IS ORDERED that the plaintiff's motion for summary judgment is DENIED.