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February 14, 2005.

ROSEALIE LABO, Administratrix of the Estate of Michael DiVigenze, deceased and NANCY DIVIGENZE, now known as Nancy Russo, Plaintiffs,

The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


Presently before the Court are cross-motions for summary judgment by Plaintiffs Rosealie Labo, Administratrix of the Estate of Michael DiVigenze, deceased, and Nancy Divigenze, now known as Nancy Russo ("Plaintiffs") and Defendant Aetna Life Insurance Company ("Defendant" or "Aetna"). Plaintiffs seek payment of the $35,000.00 benefit under the decedent's Accidental Death and Dismemberment coverage in an employee benefit plan for which Aetna denied coverage, finding Mr. DiVigenze's death did not qualify as an "accident" under the plan. Plaintiffs allege that Aetna's decision to deny benefits violates Section 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a), and cannot withstand scrutiny because it was arbitrary and capricious. For the reasons discussed below, summary judgment will be granted in favor of Defendant and against Plaintiffs.


  Decedent, Michael DiVigenze, a sheet metal worker and member of the Sheet Metal Workers International Association, Local 27 Health & Welfare Fund, died as a result of multiple gunshot wounds on September 1, 2000. (See Def. Ex. A.) The medical examiner who performed the autopsy ruled the death to be a homicide, as decedent's gunshot wounds were apparently inflicted by an off-duty police officer who had been approached by the decedent wielding a knife against the officer outside of a bar. (See Def. Ex. A; Def. Ex. L.) At the time of his death, decedent had been enrolled in an Employee Benefit Plan, governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., which included a Group Life Accident and Health Insurance Policy and provided to eligible employees life insurance and accidental death and dismemberment coverage. (See Pl. Ex. C; Def. Ex. K.) Both forms of coverage were underwritten by Aetna Life Insurance Company of Hartford, Connecticut. (Id.) The Group Life Plan provided thirty-five thousand dollars ($35,000.00) in death benefit coverage and the Accidental Death and Dismemberment component provided coverage in the amount of an additional thirty-five thousand dollars ($35,000.00) to eligible employees. (See Pl. Ex. C; Def. Ex. K: "Summary of Coverage," p. 5.)

  By letter dated October 28, 2002, Ralph J. Ragno, Fund Administrator for Sheet Metal Workers, submitted to Aetna Life Insurance Company a claim for life insurance for Michael DiVigenze, which included an original copy of the death certificate, a beneficiary designation form, and proof of death. (See Def. Ex. A.) By letter dated November 19, 2002, Veta Amos of Aetna Life Insurance Company acknowledged receipt of the claim for group life insurance benefits for Michael DiVigenze. Aetna's letter explained, however, that benefits were not payable at that point because the claim was under investigation and Aetna requested that police/toxic reports be submitted in order to assist it in arriving at a final decision. Aetna further advised that a competing claim for benefits had been filed. (See Def. Ex. B.)

  Plaintiffs commenced this action in November, 2003 with the filing of their Complaint against Defendants Aetna Life Insurance Company and Sheet Metal Workers International Association, Local 27 Health and Welfare Fund in the Superior Court of New Jersey, Law Division, Gloucester County. On December 30, 2003, Defendant Aetna removed the matter to the United States District Court pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446. Defendant Aetna filed its answer on January 5, 2004 and by stipulation dated March 18, 2004, the parties agreed to the voluntary dismissal with prejudice of Defendant Sheet Metal Workers. Subsequent to the initiation of litigation in this matter, it was stipulated on behalf of Defendant Aetna that the claim for accidental death and disability benefits would be considered "denied" on the basis that there was no evidence submitted in support of the claim to establish that the death arose out of an "accident." (See Def. Ex. J.)

  Plaintiffs' Complaint seeks payment of accidental death and disability benefits in the amount of $35,000.00 with interest or dividends. The policy's basic death benefit in the amount of $35,000.00 has previously been paid on May 16, 2003,*fn1 but no payment of interest or dividends was paid on the basic coverage.


  Summary Judgment Standard of Review

  Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

  In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).

  In this claim for ERISA benefits under 29 U.S.C. § 1132(a), Plaintiffs have the burden of proving entitlement. Abnathya v. Hoffman-La Roche, Inc., 2 F.3d 40, 46-48 (3d Cir. 1993). The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

  The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.

  The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions. Weissman v. United States Postal Serv., 19 F. Supp. 2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia House Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable ...

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