Opinion
02 Civ. 6411 (GEL)
May 6, 2003
Marc R. Thompson, Pulvers, Pulvers Thompson, LLP, New York, NY, for Plaintiff Charles E. Binder.
Evan L. Gordon, New York, NY, for Defendant National Life of Vermont.
OPINION AND ORDER
In this action arising out of defendant National Life of Vermont's denial of benefits under a disability insurance policy to plaintiff Charles E. Binder, plaintiff seeks to amend his complaint to add UnumProvident Corporation as a defendant, and to assert an additional claim against both National Life and UnumProvident. National Life opposes the motion, on the grounds that the amendments would be futile. For the reasons discussed below, the motion is granted in part and denied in part.
BACKGROUND
Plaintiff is a well-known lawyer and the managing partner of a national law firm, Binder Binder, that specializes in disability and Social Security litigation. (Compl. ¶¶ 12-13.) He holds a Disability Income Insurance Policy with National Life, which provides for benefits for lost income in the event that he becomes totally or residually disabled and is unable to work. (Id. ¶¶ 3-4.) In May 1999, plaintiff underwent surgery for appendicitis, which resulted in extensive deep vein thrombosis. (Id. ¶ 16.) He has been unable to work full-time since then, and in September 1999, he applied for disability benefits from National Life. (Id. ¶ 20.) National Life deferred making a determination on Binder's claim until November 2000, when it denied the claim on the grounds that there was no objective evidence that he was totally or residually disabled within the meaning of his policy. (Id. ¶ 29.)
In his original Complaint, plaintiff asserted five claims against National Life based on its denial of his disability claim, on theories of breach of contract, bad faith conduct, and a violation of N.Y. Gen. Bus. L. § 349, which prohibits the use of consumer-oriented deceptive practices. Specifically, plaintiff alleged that National Life failed to make the benefits determination in accordance with the terms of the policy (Id. ¶ 33), and that the denial of his claim was part of a practice of delaying and denying claims on the basis of its pecuniary interests, without regard to the merits of the claims (id. ¶¶ 49, 54). Binder seeks payment of monthly benefits under the policy and a refund of the premiums he has paid since he became disabled, as well as punitive damages (based on the bad faith conduct and § 349 claims), and attorney's fees. (Id. ¶¶ (a)-(i).)
Binder now moves to amend his Complaint to include UnumProvident as a defendant, and to assert an additional claim, based on bad faith conduct, against both National Life and UnumProvident. In his proposed Amended Complaint ("Am. Compl."), plaintiff alleges that UnumProvident is the "parent or controlling entity" of National Life (Am. Compl. ¶ 4), and that it played an important role in the denial of his claim. Specifically, plaintiff states that after National Life denied his application for benefits in November 2000, it informed him that UnumProvident would handle any appeal from the denial. (Id. ¶ 44.) Binder submitted an appeal, and in February 2002, UnumProvident upheld National Life's denial of benefits, stating that there was no medical evidence suggesting that Binder was unable to work. (Id. ¶ 49.) Plaintiff also alleges that the denial of his claim was part of a general practice, followed by both National Life and UnumProvident, of denying claims without regard to their merit, and of precluding their medical staff from making independent determinations on the merits of the claims. (Id. ¶¶ 62; 70-73.)
Based on these allegations, plaintiff's Amended Complaint asserts new claims against both parties. First, in the Amended Complaint's Second Cause of Action, plaintiff asserts a breach of contract claim against UnumProvident based on its appellate review of his benefits application. (Id. ¶ 51.) Second, plaintiff amends the Fourth Cause of Action to add UnumProvident as a defendant to the claim against National Life for bad faith conduct, based on the insurers' alleged policy of denying claims to protect their financial interests. (Id. ¶ 62.) Third, in the Fifth Cause of Action, plaintiff asserts a new claim against both National Life and UnumProvident for bad faith conduct, based on various alleged practices that were not in accordance with the provisions of the policy, including instructing medical staff to deny claims rather than making independent judgments (Id. ¶ 69), rewarding employees for denying claims (Id. ¶ 78), and failing to independently review appeals of claim denials (id. ¶ 76). Finally, in the Amended Complaint's Sixth Cause of Action, plaintiff adds UnumProvident as a defendant to the claim alleging that the insurers' practices were deceptive and misleading, in violation of N.Y. Gen. Bus. L. § 349. (Id. ¶¶ 87-88.)
DISCUSSION
Fed.R.Civ.P. 15(a) provides that leave to amend a complaint after a responsive pleading has been filed "shall be freely given when justice so requires." While the decision as to whether to allow a plaintiff to amend her complaint is committed to the discretion of the district court, there must be "good reason" to deny the motion. ACITO v. Imcera Group, Ltd., 47 F.3d 47, 55 (2d Cir. 1995). Thus, a district court may deny leave to amend when plaintiff has unduly delayed, when defendants may be prejudiced by the amendment, and when it appears that amendment would be futile. Bomani v. Artuz, No. 96 Civ. 4465 (JGK), 1998 WL 82694, at *1 (S.D.N.Y. Feb. 26, 1998).
Defendant argues that all of plaintiff's proposed amendments to the Complaint are futile because they do not state claims on which relief can be granted. (Def. Mem. at 1.) When considering whether an amendment to a pleading would be futile, courts use the same standard that is used to judge the adequacy of a filed pleading. "[T]he court should not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, and it should not deny leave to file a proposed amended complaint unless that same rigorous standard is met."Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (internal quotation marks and citations omitted). In determining whether the proposed amendments are futile, therefore, the court should accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and deny leave to amend only if it is evident from the face of the proposed amended complaint itself that plaintiff has not stated claims on which relief can be granted. S.S. Silverblatt, Inc. v. East Harlem Pilot Block-Bldg. 1 Housing Devel. Fund Co., Inc., 608 F.2d 28, 42-43 (2d Cir. 1979).
I. Breach of Contract Claim Against UnumProvident
Plaintiff alleges in the Amended Complaint's Second Cause of Action that UnumProvident breached the terms of his insurance policy when it upheld on appeal National Life's denial of his disability claim, because it failed to review his appeal in accordance with the terms of the policy, and its denial of benefits lacked a rational basis. (Am. Compl. ¶¶ 46-51.) National Life contends that no action for breach of contract may be asserted against UnumProvident because it was not a party to the contract between Binder and National Life. (Def. Mem. at 2.) While conceding that UnumProvident was not a party to the contract, plaintiff alleges that UnumProvident was the parent, or controller, of National Life (Am. Compl. ¶ 4), and asserts in his brief that UnumProvident "interjected itself into . . . the determinations made in denying plaintiff's claims." (Pl. Mem. at 1.) Plaintiff argues in his briefs that UnumProvident may be held liable as a party to the contract on one of two theories: (1) that UnumProvident is National Life's alter ego and thus the corporate veil may be pierced to reach it (Pl. Mem. at 1-2); and (2) that UnumProvident acted in concert with National Life (Pl. R. Mem. at 3).
As Binder's reply brief deals almost exclusively with his claim against UnumProvident under Gen. Bus. L. § 349 (see pp. 9-11 below), it might be inferred that he has abandoned his other claims. Since he does not expressly withdraw any part of his motion to amend, however, in an excess of caution the Court will treat all parts of his original motion on the merits.
Plaintiff has not sufficiently pleaded the elements of either theory. With respect to the alter ego theory, under New York law, a corporation may be held liable for the acts of its subsidiary when (1) "the owner exercised complete domination over the corporation with respect to the transaction at issue; and [(2)] . . . such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil."Accordia Northeast, Inc. v. Thesseus Int'l Asset Fund, N.V., 205 F. Supp.2d 176, 181 (S.D.N.Y. 2002). Plaintiff has not pleaded that UnumProvident completely dominated National Life; indeed, the only allegation that directly deals with the relationship between the two corporations is the conclusory (and perhaps inaccurate) statement that UnumProvident is the "parent or controlling entity" of National Life. (Am. Compl. ¶ 4.) The only other allegations with respect to UnumProvident's role in the claim denial state that UnumProvident and its employees handled plaintiff's appeal. (Id. ¶ 49.) While this allegation allows the inference that UnumProvident and National Life had a contractual relationship, or perhaps even shared employees (Pl. Mem. at 2), it alone does not allow an inference that UnumProvident completely dominated National Life, or disregarded corporate formalities in its dealings with it. See Harrison v. NBD Inc., 990 F. Supp. 179, 183-84 (E.D.N.Y. 1998) (allegations that corporations shared employees and had some "administrative overlap" insufficient to allege complete domination). Aside from these allegations, the Amended Complaint is completely devoid of any description of the relationship between the two corporations, or of UnumProvident's power to control National Life. Plaintiff has therefore failed to plead the elements necessary to pierce the corporate veil.
National Life has proffered evidence, in the form of an affidavit from UnumProvident's Senior Counsel, that UnumProvident is not National Life's parent or affiliate, and Binder appears to accept the truth of this assertion. (Pl. R. Mem. at 1-2.) Nevertheless, Binder notes that because he "has not yet had an opportunity to conduct meaningful discovery . . ., the exact legal relationship between National Life of Vermont and UnumProvident [is] not really known to plaintiff." (Id. at 1.) Because evidence outside the pleadings is not appropriately considered on a motion to amend, S.S. Silberblatt, 608 F.2d at 42-43, for purposes of this discussion the Court accepts as true the allegations as to control in the Amended Complaint.
Alternatively, plaintiff argues in his reply brief that even if UnumProvident was not National Life's alter ego, UnumProvident may be liable for breach of the policy because it acted in concert with National Life. (Pl. R. Mem. at 3.) New York law permits a party to be held liable for another's tortious conduct if it has agreed to "participate in a common plan" to commit a tortious act, and a tortious act is committed pursuant to that agreement. Rastelli v. Goodyear Tire Rubber Co., 79 N.Y.2d 289, 295 (1992). This theory of joint liability does not apply to breaches of contract, however. Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 137 (N.D.N.Y. 1990). As the Amended Complaint's Second Cause of Action alleges only that UnumProvident's review of the claim was not performed in accordance with the terms of the policy, stating a straightforward breach of contract claim, plaintiff has failed to allege facts that could support a theory of concerted action liability.
Thus, amending the complaint to assert a breach of contract claim against UnumProvident would be futile, as UnumProvident was not a party to the contract, and plaintiff has failed to plead facts that could support any theory of joint liability.
II. Claims for Bad Faith Conduct
Plaintiff seeks to add UnumProvident as a defendant to the Fourth Cause of Action's claim for bad faith conduct, and to add a new claim, the Fifth Cause of Action, for bad faith conduct against both National Life and UnumProvident. Under New York law, a plaintiff may state a claim for punitive damages based on bad faith conduct in the course of a breach of contract by pleading that "(1) defendant's conduct [is] actionable as an independent tort; (2) the tortious conduct [is] of [an] egregious nature . . .; (3) the egregious conduct [is] directed to plaintiff; and (4) it [is] part of a pattern directed at the public generally." Sichel v. UNUM Provident Corp., 230 F. Supp.2d 325, 328 (S.D.N.Y. 2002); New York University v. Continental Ins. Co., 87 N.Y.2d 308, 316 (1995).
The claim of bad faith conduct is not an independent tort cause of action, but a means by which plaintiffs can obtain punitive damages in a breach of contract action, by establishing that the defendant's conduct in breaching the contract was so egregious as to violate a duty to the plaintiff that exists independently of the contract. Acquista v. New York Life Ins. Co., 730 N.Y.S.2d 272, 278 (1st Dep't 2001) ("We are unwilling to adopt the widely accepted tort cause of action for `bad faith' . . . because we recognize that to do so would constitute an extreme change in the law of this state."); Continental Information Systems Corp. v. Federal Ins. Co., No. 02 Civ. 4168 (NRB), 2003 WL 145561, at *3 (S.D.N.Y. 2003) ("New York does not recognize the tort of bad faith denial of insurance coverage. . . ."). Consequently, plaintiff may not assert this cause of action for punitive damages against UnumProvident, because he has not alleged a basis on which UnumProvident may be held liable for breach of the insurance policy.
Binder also has not alleged sufficient facts to support his new claim of bad faith conduct against National Life. In order to allege that National Life is liable for bad faith conduct, plaintiff must plead facts supporting the inference that National Life breached a duty to plaintiff that existed independently of the insurance contract. While the public interest in having certain types of contracts performed may give rise to an independent duty to perform contract obligations with reasonable care, the public interest in insurance contracts is not so great as to create a duty of reasonable care in the insurer. New York University, 87 N.Y.2d at 318. Thus, National Life's alleged breach of the policy, without more, is insufficient to state a claim for bad faith conduct.
Plaintiff asserts that National Life's conduct was egregious because, in furtherance of its alleged policy of denying claims that threatened its financial interests, National Life ensured that its doctors did not make independent determinations, and rewarded employees for denying claims. (Am. Compl. ¶¶ 68, 77.) These assertions fail to allege a wrong independent of the breach of the contract, however, because plaintiff's rights to an independent medical determination, and a decision on the merits of his claim, were created by the policy itself, not by an independent source of law. Even if National Life's alleged conduct constitutes a breach of its implied duty of good faith, this duty arises from the contract itself, and therefore can not constitute the breach of an independent duty necessary to state a claim for bad faith conduct. New York University, 87 N.Y.2d at 319-20 (holding that the allegation that the insurer had breached duty of good faith did not state breach of an independent tort duty).
Because bad faith conduct is not an independent tort action and plaintiff has not sufficiently alleged that UnumProvident may be held liable for any breach of the insurance policy, it would be futile for plaintiff to amend his Complaint to include these claims against UnumProvident. In addition, plaintiff may not add a claim for bad faith conduct against National Life, because he has failed to allege that National Life violated an independent tort duty. Thus, plaintiff may not add UnumProvident to the Fourth Cause of Action, or add the Fifth Cause of Action to his Complaint.
III. Claim Under General Business Law § 349
Plaintiff has already asserted a claim against National Life under N.Y. Gen. Bus. L. § 349, and now seeks to add UnumProvident as a defendant to the claim in the Amended Complaint's Sixth Cause of Action. Section 349 prohibits consumer-oriented deceptive practices, and while a private action under § 349 is similar to a common-law fraud claim, the statute extends to misleading practices that would not rise to the level of common-law fraud. Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (2000). To state a claim under § 349, a plaintiff must first allege that the practice in question is consumer-oriented, in that it is not simply a private contract dispute that is unique to the parties, but could "potentially affect similarly situated consumers." Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 27 (1995). Plaintiff must then show that the defendants engaged in a deceptive practice likely to mislead the reasonable consumer, and that plaintiff was injured by the practice. Id. at 25; Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 344 (1999).
Because a § 349 claim may rest on conduct that does not constitute fraud, Fed.R.Civ.P. 9(b)'s requirement that the circumstances constituting fraud be pled with particularity does not apply. Petitt v. Celebrity Cruises, Inc., 153 F. Supp.2d 240, 264-65 (S.D.N.Y. 2001).
Binder has adequately alleged that UnumProvident's conduct was consumer-oriented. Because Binder holds a standard form insurance policy, the denial of his claim for benefits, if indicative of a larger practice, will potentially affect the many consumers who hold the same type of policy. Such allegations are therefore sufficient to establish that the practice is consumer-oriented. Joannou v. Blue Ridge Life Ins. Co., 735 N.Y.S.2d 786 (2d Dep't 2001); Monga v. Security Mutual Life Ins. Co. of New York, No. 2000/05164, 2002 WL 31777872 (Sup.Ct. Monroe Cty. Oct. 10, 2002); cf. New York University, 87 N.Y.2d at 320 (finding that denial of university's insurance claim was not consumer-oriented, because the policy was developed specifically for the university). Binder has alleged that both National Life and UnumProvident not only wrongfully denied his claim, but that they have made a practice of doing so with other similar claims. While he "cannot now determine, at this pre-discovery phase, whether this same alleged practice has been aimed at other policyholders besides himself so as to have a broader impact on consumers at large, in the context of this dismissal motion, the claimed conduct may be said to fall within the parameters of an unfair or deceptive practice." Acquista, 730 N.Y.S.2d at 279. Thus, plaintiff need not plead specific facts supporting his allegation that the denial of his claim was part of a larger practice in order to withstand a motion to dismiss. See Monga, 2002 WL 31777872 (allowing amendment of complaint based on allegations that plaintiff possessed a standard form policy and defendant made a practice of denying claims under the policy); but see Sichel, 230 F. Supp.2d at 330-31 (finding plaintiff's "conclusory" allegations of insurers' practice of denying claims insufficient to survive motion to dismiss).
Binder has also sufficiently alleged that UnumProvident engaged in a deceptive practice, and that he was injured by that practice. A deceptive practice is one that may mislead a consumer "acting reasonably under the circumstances," and "[t]he allegation that the insurer makes a practice of inordinately delaying and then denying a claim without reference to its viability may be said to fall within the parameters of that definition." Acquista, 730 N.Y.S.2d at 279. Binder has alleged that he was injured by this practice, as it resulted in the denial of his claim for benefits. (Am. Compl. ¶ 39-40.) Because Binder's § 349 claim against UnumProvident would withstand a motion to dismiss, he may amend his Complaint to include this cause of action.
CONCLUSION
Leave to amend the Complaint to add the Second Cause of Action, for breach of contract against UnumProvident, and the Fifth Cause of Action, for bad faith conduct against National Life and UnumProvident, is denied. Leave to amend the Fourth Cause of Action, for bad faith conduct, to add UnumProvident as a defendant is also denied. Leave to amend the Sixth Cause of Action, for violation of N.Y. Gen. Bus. L. § 349, to add UnumProvident as a defendant is granted. Plaintiff is directed to file an Amended Complaint by May 23, 2003.
SO ORDERED.