Opinion
No. 95-2460-RCN.
March 18, 1997.
Thomas E. Hayes, Spigarelli, McLane Short, Pittsburg, KS, Daniel R. Ray, Hershewe Gulick, P.C., Joplin, MO, for plaintiff.
John I. O'Connor, Pittsburg, KS, for defendant.
MEMORANDUM AND ORDER
This is an action for violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., brought by the plaintiff against her former employer, for benefits under the employer's long-term disability plan. Plaintiff claims that although the employer initially paid benefits, they were wrongfully terminated contrary to the provisions of the plan. Plaintiff asserts claims under 29 U.S.C. § 1132(a)(1)(B) to recover the claimed benefits and to otherwise enforce rights afforded to her under the plan. The action was properly removed from the District Court of Bourbon County, Kansas, under 28 U.S.C. § 1441. The court has jurisdiction of the subject matter of this action under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). Venue is properly in this court under 29 U.S.C. § 1132(e)(2).
Certain disputes also arose late in the discovery period concerning the production of and the admissibility of a plan document by the defendant employer, Dayco Products, Inc. The defendant has offered for admission into evidence Exhibit 400, one of the files of North American Administrators, which purportedly contains the current plan of Dayco. The plaintiff has objected to the exhibit and moved to strike it on the grounds that it was only recently produced and does not reflect the plan involved in this case. A review of the exhibit reveals that the Dayco Flex-Choice Long Term Disability Plan Enrollment Guide, the Dayco 1986 long term disability plan, and the Mark IV Industries Flexible Benefit Plan Specifications are all included within the exhibit. The defendant offers no evidence by any witness who could identify the effective plan. The court overrules the objection and admits the exhibit for such value as it may have in determining the merits of this action. It is thus admitted as the file of NAA.
The defendant has offered the testimony of Christine Werth, the human resources manager of Mark IV, the parent corporation of Dayco. The plaintiff objects to the testimony of Ms. Werth and moves that it be stricken on the grounds that she had no knowledge concerning the processing of the plaintiff's claims and thus lacks the necessary foundation to offer testimony herein. The objection is overruled and the testimony is received for such value as it may have.
Defendant has filed a motion for protective order as to the notice to take the deposition of Ms. Werth. Defendant, itself, offered the deposition testimony of Ms. Werth during the trial of the action. The motion is, therefore, overruled as moot.
The court has heard and reviewed the evidence in the matter and is now prepared to rule on all outstanding issues. This Memorandum and Order shall constitute the court's findings of fact and conclusions of law.