United States District Court, D. New Jersey
October 18, 2005.
FRANI FEIT, INDIVIDUALLY AND AS ASSIGNEE OF IRWIN J. FEIT, Plaintiff,
GREAT-WEST LIFE AND ANNUITY INSURANCE COMPANY, A Colorado Corporation, Defendants.
The opinion of the court was delivered by: HAROLD ACKERMAN, Senior District Judge
OPINION AND ORDER
This matter comes before the Court on a motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 and a
motion to dismiss Plaintiff's request for attorney's fees filed
by Defendant Great-West Life and Annuity Insurance Company
("Great-West"). For the reasons outlined below, Great-West's
motion for summary judgment is GRANTED in part and DENIED in
part. Factual Background
This action concerns the construction and application of an
accidental death benefit clause contained in a life insurance
policy issued by Defendant Great-West Life and Annuity Insurance
Company ("Great-West"). The deceased, Dr. David Feit ("Dr.
Feit"), was a practicing dentist and a member of the American
Dental Association ("ADA"). Plaintiff Frani Feit ("Mrs. Feit" or
"Plaintiff"), is the surviving spouse of Dr. David Feit and one
of two designated beneficiaries of Dr. Feit's life insurance
policy. Mrs. Feit is proceeding in this action individually and
as the assignee of the rights of Irwin Feit, Dr. Feit's father,
the other designated beneficiary of the policy.
The ADA maintained the life insurance benefits at issue, which
were available to Dr. Feit under a group term life insurance plan
provided by Great-West. Dr. Feit had a $1,000,000 group term life
insurance policy at the time of his death and an additional
$1,000,000 accidental death benefit. Under the terms of Dr.
Feit's insurance policy, in order to receive the accidental death
benefit, an insured's death must be the result of a bodily injury
that is caused solely by accidental means. Under the policy's
terms, Great-West was obligated to pay the additional accidental
death benefit only if death occurred within 90 days of an
accident, was a direct result of an accident, and was unrelated
to any other cause. The accidental death benefit would not be
paid if the member's death was in any way connected to a disease,
illness, or physical or mental infirmity, including the medical
or surgical treatment of any disease or illness.
Dr. Feit died on July 22, 2002 in Rockland County, New York.
The cause of death is the central matter of dispute in this case.
At the time of his death, Dr. Feit was forty-four years old, did
not smoke, and had no history of cardiac disease or illness,
other than an elevated cholesterol level which was controlled with medication. He regularly walked
five miles four to five times per week and played basketball on
Sometime during the morning of July 22, 2002, Dr. Feit's car
drove off the southbound lane of a highway in Rockland County and
crashed into and drove through the guardrail, causing damage to
ten feet of the rail. The vehicle then went down a 670-foot
grassy slope, struck a chain-linked fence, and stopped at the
Spook Rock Industrial Park (the "Park"). The car damaged a sign
and part of the fence, and parts of the vehicle were scattered
throughout the car's path. The location of Dr. Feit's car was
reported to police by the Park's construction manger at
approximately 12:11 PM. Police were called to the scene and found
Dr. Feit deceased, in the front seat area of the car, clutching
his chest and biting his shirt. Dr. Feit did not appear to have
worn a seat belt, and the air bags were not deployed. According
to the report of the investigator for the County of Rockland
Medical Examiner's Office, it looked as though Dr. Feit appeared
to have "bounced around" inside the car. The car was totaled in
the crash. (Aff. of Gina Goodreau ("Goodreau Aff."), Ex. I at 2.)
After learning about the crash, Mrs. Feit and Dr. Feit's dental
assistant, Joan Van Peenen, went to the Rockland County Medical
Examiner's Office to identify Dr. Feit's body. Mrs. Van Peenen
was present when Mrs. Feit spoke to the medical investigator. The
substance of Mrs. Feit's statements to the investigator is hotly
debated, and Mrs. Feit offers Mrs. Van Peenen's certification to
support her version of the statements. According to Mrs. Feit, in
response to the investigator's questions, Mrs. Feit admitted that
Dr. Feit "was a person who tended to sweat profusely from time to
time . . . and that he occasionally complained about back pain in
the past, which [she] believe[d] was related to his work."
(Certif. of Michael J. Epstein ("Epstein Certif."), Ex. A ¶ 7.) According to the medical investigator's
report, Mrs. Feit "related her husband had casually complained of
chest and back pain with profuse sweating about one week" prior
to the crash. (Goodreau Aff., Ex. I at 3.) Mrs. Van Peenen
corroborates Mrs. Feit's assertion to the medical investigator
that Dr. Feit did not suddenly acquire these symptoms prior to
The autopsy results and death certificate indicated that Dr.
Feit died from a "myocardial infarction, old due to
atherosclerotic obstruction of coronary arteries." (Goodreau
Aff., Ex. G at 4.) The autopsy results also revealed an
atherosclerotic obstruction in both coronary arteries, which
reached a maximum degree of approximately fifty percent, and
patches of thinning in the myocardium. There is no mention in the
report of any examination of Dr. Feit's head or nervous system.
The beneficiaries submitted claim forms to Great-West in August
2002, seeking the full $2,000,000 in available benefits.
Great-West replied by letter dated August 15, 2002, enclosing
payment of the beneficiaries' respective shares under the life
insurance policy, and stating that the accidental death claim was
rejected because Mr. Feit's death certificate listed "natural
cause," rather than accident, as the cause of death. Great-West
further stated in the letter that it would reconsider the
accident benefit portion of the claim if additional proof was
submitted. Mrs. Feit responded to Great-West with copies of the
autopsy report, accident report, EKG report from Dr. Feit's
cardiologist, and correspondence from Dr. Feit's car insurance
company indicating that his vehicle was totaled in the crash.
Great-West submitted this information to a Great-West consulting
physician, who rendered a report on October 30, 2002. The
consulting physician's report reaffirmed the autopsy finding and
stated that it can be "reasonably inferred in the absence of other explanations for the insured's demise that complications
of the [myocardial infarction] precipitated the insured's
death. . . . As such, there exists no support for the assertion
of accidental death." (Id.)
On October 31, 2002, Great-West's claim analyst wrote to Mrs.
Feit again rejecting the accidental death claim, citing to: (1)
Dr. Feit's death certificate, which stated the manner of death as
"natural cause"; (2) the autopsy report, which supports the
finding of death due to natural causes; (3) the autopsy report's
absence of any findings of bony fractures or trauma; and (4) the
accident report's citation of "heart attack" as the cause of
death. (Goodreau Aff., Ex. L.)
Mrs. Feit commenced this suit on May 15, 2003 in the Superior
Court of New Jersey, Passaic County. Great-West subsequently
removed this case to District Court pursuant to diversity
jurisdiction. Mrs. Feit's original complaint contained four
counts. She voluntarily withdrew two of the counts.*fn1
Thus, the only remaining claims before this Court are for breach
of contract ("Count I") and breach of the implied covenant of
good faith and fair dealing ("bad faith" or "Count II").
During discovery, Mrs. Feit provided pictures of the crash and
named two expert witnesses, whose depositions were taken by
Great-West. Mrs. Feit's experts were Dr. Arthur Fisch, a
cardiologist, and Dr. Duc V. Duong, a medical examiner. The
reports of both experts attest that, given the circumstances of
the crash, the manner in which the body was found, Dr. Feit's
medical history, and the findings of the autopsy reports, Dr.
Feit's atherosclerotic obstruction did not contribute to his
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that
summary judgment may be granted only if the pleadings, supporting
papers, affidavits, and admissions on file, when viewed with all
inferences in favor of the nonmoving party, demonstrate that
there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. See Todaro v. Bowman,
872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts,
Inc., 814 F.2d 893, 896 (3d Cir. 1987). An issue is "genuine" if
a reasonable factfinder could possibly hold in the nonmovant's
favor with regard to that issue. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it
influences the outcome under the governing law. Id. at 248.
At the summary judgment stage, a court may not weigh the
evidence or make credibility findings these tasks are left to
the factfinder. Petruzzi's IGA Supermarkets v. Darling-Delaware
Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Therefore, to raise a
genuine issue of material fact, "`the [summary judgment] opponent
need not match, item for item, each piece of evidence proffered
by the movant,' but simply must exceed the `mere scintilla'
standard." Id.; see also Anderson, 477 U.S. at 252 ("The mere
existence of a scintilla of evidence in support of the
[nonmovant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
As a federal court sitting in diversity, this Court must apply
New Jersey substantive law, as determined by the New Jersey
Supreme Court, to both claims. Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938). II. Breach of Contract
Under Count I of the Complaint, Mrs. Feit argues that
Great-West breached the accidental death benefits provision of
the insurance contract by refusing to pay her the proceeds under
the benefit. Great-West moves for summary judgment dismissing
such claim, asserting that Mrs. Feit has not carried the burden
of proving a prima facie case for accidental death benefits. Due
to the numerous disputed facts in this case, Great-West's motion
for summary judgment must be denied.
Under New Jersey state law, in accidental death benefit cases,
the burden is on the plaintiff to prove by a preponderance of the
evidence that an accident, as defined by the policy, resulted in
the death of the insured. Shopp v. Prudential Ins. Co.,
115 N.J.L. 162, 165, 178 A. 724, 725 (N.J. 1935); Kresse v. Met.
Life Ins. Co., 111 N.J.L. 474, 477, 168 A. 634, 635 (N.J. 1933);
Magich v. John Hancock Mut. Life Ins. Co., 32 N.J. Super. 33,
37-38, 107 A.2d 665, 667 (App.Div. 1954). The initial claim is
deemed sufficient if plaintiff provides some reasonable proof of
death by accidental means. McNamee v. Met. Life Ins. Co.,
137 N.J.L. 709, 712, 61 A.2d 271, 273 (N.J. 1948) (citing Cohen v.
Met. Life Ins. Co., 144 F.2d 748, 750 (3d Cir. 1944)). The proof
submitted to sustain a claim need not contain as much detail as
is needed for trial. Whether the death resulted solely by
accidental means and falls within the scope of the policy is a
determination for the jury. Id.
Under the Great-West policy, the insured's beneficiary will
only recover proceeds under the accidental death benefit if the
beneficiary shows that: (1) the insured sustained a bodily
injury; (2) caused solely by accidental means; (3) the death was
the direct result of the accident; and (4) the death was
unrelated to any other cause. (Goodreau Aff., Ex. A at 104R-7.) Additionally, the benefit is not payable if "death is caused by
or in any manner or degree connected with . . . any form of
disease or illness or physical or mental infirmity." Id.
Great-West's argument is largely based on negating the
deposition testimony of Mrs. Feit's expert witnesses. Great-West
contends that these "paid experts" essentially use speculation
and conjecture to "second-guess" the autopsy results. However,
this type of argument does not lend itself to summary judgment
analysis, as "the matter of weighing the credibility and
persuasiveness of expert opinion is the unique function of the
trier of fact." Speyer, Inc. v. Humble Oil & Refining Co.,
403 F.2d 766, 770 (3d Cir. 1968); see also Suarez v. Mattingly,
212 F. Supp. 2d 350, 353 (D.N.J. 2002) (explaining that it is the
unique function of the jury to accept the medical opinion it
finds more persuasive); Rubanick v. Witco Chem. Co.,
242 N.J. Super. 36, 48, 576 A.2d 4, 10 (App.Div. 1990) (finding that a
jury is entitled to determine the weight, credibility, and
probative value of expert testimony). Accordingly, it is
inappropriate for this Court to attempt to assess the weight and
credibility of the expert testimony in connection with this
Great-West further suggests that the facts in Shopp v.
Prudential Insurance Company are similar to this case. In
Shopp, a beneficiary sought to recover accidental death
benefits under the deceased's insurance policy.
115 N.J.L. at 163, 178 A. at 725. The deceased, a twenty-year-old man, was
observed sitting at the edge of a swimming pool by a friend who
then departed. Upon the friend's return a few minutes later, he
found Shopp face down at the bottom of the deep end of the pool.
115 N.J.L. at 164, 178 A. at 725. No one saw or knew how Shopp
ended up the pool. Id. Evidence showed that there was a cut and bruise on
the deceased's face, which was not apparent before the deceased
entered the pool. Id. The physician who performed the
examination testified that the young man did not die from
abnormal body functions or disease, but from external causes.
Id. The doctor did not know whether this death was caused by
accidental or other means. Id. There was further evidence that
the deceased's heart and lungs were examined two years prior to
his demise and were found to be normal. Id. Furthermore, the
county physician testified that drowning was not the cause of
death. 115 N.J.L. at 165, 178 A. at 725. In his opinion, the
"death was caused by acute cardiac dilatation, probably brought
on by exertion." Id. The court found that the plaintiff in
Shopp did not meet her burden of proving that the death
resulted from an accidental cause within the policy. Id.
Though citing this case in its brief, Great-West nevertheless
fails to explain why Shopp is applicable to the instant case.
Mrs. Feit argues that Great-West's reliance on Shopp is
misplaced for the following reasons: (1) the plaintiff in Shopp
failed to produce any expert testimony as to what caused the
insured to die and failed to produce evidence to explain how the
insured got into the pool; and (2) although the plaintiff argued
that the insured died from head injuries (evidenced by the cut on
his face), the plaintiff failed to provide any evidence to
connect the injury to the cause of death. Mrs. Feit asserts that,
unlike the insured in Shopp, whose injury was unexplained, it
is undisputed that Dr. Feit was in a serious motor vehicle crash.
(Pl's Mem. Opp'n Mot. Summ. J. 22.) Also, Mrs. Feit offered two
expert witnesses who opined that Dr. Feit did not die from a
cardiac condition, but rather suffered from an injury to his neck
and head. (Id.) Mrs. Feit further claims that the autopsy was
based on incomplete information, due to the lack of a detailed
examination of the head or neck. (Id. at 23.) Lastly, Mrs. Feit
argues that the cause of death is a disputed issue of material fact. (Id. at
As stated above, the Court is not to make determinations of
fact. Petruzzi's IGA Supermarkets, 998 F.2d at 1230. It is the
factfinder's responsibility to weigh the evidence and determine
the credibility of the testimony. Id. This Court finds that the
cause of Mr. Feit's death is a hotly-contested, genuine issue of
material fact. Viewing all the inferences in favor of the
non-moving party, a reasonable jury could find, based on the
expert testimony, that Dr. Feit died from complications due to
the crash rather than a heart condition.
Likewise, there is a genuine dispute as to whether a cardiac
condition caused Dr. Feit's death. The medical investigator noted
that it appeared from his positioning inside the vehicle that Dr.
Feit had "bounced around" the inside of the vehicle during the
crash. (Epstein Certif., Ex. F at 2.) Dr. Fisch, Mrs. Feit's
expert cardiologist, testified that he believed, with a
reasonable degree of medical probability, that a cardiac
condition did not contribute to Dr. Feit's death. (Epstein
Certif., Ex. J at 32:21-33:23.) Dr. Fisch based his opinion on
the fact that (1) there was no evidence of myocardial infarction;
(2) none of the obstructions in the coronary arteries exceeded
50%; (3) there was no thrombus or clot, which one would expect to
find in the case of an acute myocardial infarction; and (4) the
heart was not particularly dilated and there was no history or
symptoms of acute infarction or congestive heart failure.
(Epstein Certif., Ex. K ¶ 2.) Also, Dr. Feit's past EKG reports
were "within normal limits and without any evidence of a prior
myocardial infarction." (Id. ¶ 3.) Dr. Duong agreed with Dr.
Fisch's opinion that 50% blockage in the coronary arteries does
not usually cause a heart attack. (Epstein Certif., Ex. L at 2.)
Also, in Dr. Duong's opinion, the head and neck were not properly
examined, and a proper examination may have shown the injuries
that caused Mr. Feit's death. (Id.) Also, a genuine issue of material fact exists as to whether the
medical investigator for the examiner's office accurately
reported his conversation with Mrs. Feit. The medical
investigator stated in his report that Mrs. Feit told him Dr.
Feit suffered from back pain and sweating approximately one week
prior to his death. (Epstein Certif., Ex. F at 3.) Mrs. Feit and
Mrs. Van Peenen deny that Mrs. Feit stated that her husband
complained about back pain and sweating just prior to his death.
Rather, Mrs. Feit says that her husband had occasional back pain
associated with his work and sweated when his air conditioner was
broken at the office. If the medical examiner relied on
inaccurate statements in the medical investigator's report, any
inaccuracy in the investigator's report may have improperly
influenced the medical examiner's conclusion that Dr. Feit died
from a heart condition.
Viewing all of the inferences in favor of the non-moving party,
reasonable minds could differ as to whether Dr. Feit died of
natural causes. Because genuine issues of material fact exist as
to whether Mr. Feit's death was caused by natural or accidental
means, summary judgment is denied on Plaintiff's breach of
III. Breach of the Covenant of Good Faith and Fair Dealing
Count II of Mrs. Feit's Complaint alleges that Great-West
breached the covenant of good faith and fair dealing in reviewing
her accidental death benefits claim. Great-West argues that it
performed as required in reviewing the documents provided by Mrs.
Feit, and even submitted the materials to a consulting physician
for review. For the reasons described below, Great-West's motion
for summary judgment on Plaintiff's breach of bad faith claim is
The duty of good faith and fair dealing is implicit in the
performance and enforcement of every contract. Pickett v. Lloyd's, 131 N.J. 457, 467,
621 A.2d 445, 450 (1993); Restatement (Second) of Contracts § 205 (1981).
The New Jersey Supreme Court has defined the duty of good faith
and fair dealing as meaning that "neither party shall do anything
which will have the effect of destroying or injuring the right of
the other party to receive the full fruits of the contract."
R.J. Gaydos Ins. Agency v. Nat'l Consumer Ins. Co.,
168 N.J. 255, 278, 773 A.2d 1132, 1146 (2001) (citing Ass'n Group Life v.
Catholic War Veterans, 61 N.J. 150, 153, 293 A.2d 382, 383
(1972)); see also 13 Williston on Contracts 38:15 (4th ed.
2000)). Additionally, in an insurance contract the insurer has a
greater duty to act fairly and in good faith. Clients' Sec. Fund
of the Bar of N.J. v. Sec. Title & Guar. Co., 134 N.J. 358, 372,
634 A.2d 90, 96 (1993) (citing Sears Mortgage Corp. v. Rose,
134 N.J. 326, 347, 634 A.2d 74, 85 (1993)).
An insurer may be liable for breaching the covenant of good
faith and fair dealing by the "bad faith" review of an insurer's
claim or otherwise. Pickett, 131 N.J. at 481, 621 A.2d at 457.
The Pickett court explained that "in the case of denial of
benefits, bad faith is established by showing that no debatable
reasons existed for denial of the benefits." Id. This rule is
now recognized as the "fairly debatable" standard. See Tarsio v.
Provident Ins. Co., 108 F. Supp. 2d 397, 401 (D.N.J. 2000);
Hudson Universal, LTD. v. Aetna Ins. Co., 987 F. Supp. 337, 342
(D.N.J. 1997). Thus, an insurer did not act in bad faith if a
plaintiff's claim was "fairly debatable" at the time the
insurance company made the coverage decision. Tariso,
108 F. Supp. 2d at 401.
The fairly debatable standard is analyzed with reference to
summary judgment standards. A claimant who would not be entitled
to summary judgment based on its substantive claim would not meet
the fairly debatable standard. Id. It follows that if a
claimant cannot meet the fairly debatable standard, the claimant is precluded from
asserting a bad faith claim against the insurer. Id. (citing
Pickett, 131 N.J. at 473, 621 A.2d at 454; see also Hudson
Universal, 987 F. Supp. at 342 (following Pickett in finding
that an insurer will not be held in bad faith unless the
plaintiff could have been granted summary judgment on the
Therefore, under the fairly debatable standard, the Court must
first determine if the plaintiff could establish a right to
summary judgment against Great-West based on her substantive
claim. Id. If factual issues exist as to whether the plaintiff
is entitled to the insurance benefit, the Court must dismiss the
bad faith claim. Id.; see also Hudson Universal,
987 F. Supp. at 342.*fn3
As this Court has noted, reasonable minds could differ as to
whether Dr. Feit died of natural causes or as a result of the car
crash. The medical examiner found that Dr. Feit died of natural
causes. Mrs. Feit's experts believe that Dr. Feit died from
injuries as a result of the crash. As previously stated, weighing
the credibility of expert testimony is a question to be
determined by a jury and not by this Court. Speyer
403 F.2d at 770; see also Suarez, 212 F. Supp. 2d at 353 (D.N.J. 2002);
Rubanick, 242 N.J. Super. at 48, 576 A.2d at 10 (App.Div.
1990). Moreover, it is the province of a jury to determine
whether a death resulted from accidental means and falls within
the scope of the insurance policy. McNamee, 137 N.J.L. at 712,
61 A.2d at 273.
Furthermore, Great-West's evaluation of Mrs. Feit's claim was
reasonable and understandable in light of the limited evidence provided by Mrs.
Feit in response to Great-West's request for supplemental
evidence. In support of her claim, Mrs. Feit provided Great-West
with only (1) the autopsy report which stated Dr. Feit died of
natural causes; (2) the police accident report; (3) Dr. Feit's
prior EKG report; and (4) a letter dated August 9, 2002 from the
Hanover Insurance Company stating that Dr. Feit's car was totaled
in the crash. At the time she provided this information to
Great-West, Mrs. Feit did not provide the expert testimony that
she now submits as part of her proof that Dr. Feit died by
accidental means. Based on the four items Mrs. Feit provided to
Great-West in support of her accidental benefit claim, Mrs.
Feit's claim was fairly debatable. Because factual issues exist
as to whether Mrs. Feit is entitled to the insurance claim, Mrs.
Feit's bad faith claim against Great-West must fail as a matter
IV. Attorney's Fees
Mrs. Feit's Complaint requests an award of attorney's fees.
Great-West moves for summary judgment dismissing Mrs. Feit's
attorney's fee request. For the reasons stated below,
Great-West's motion to dismiss Mrs. Feit's request for attorney's
fees is granted.
Mrs. Feit's request for attorney's fees is not based upon any
specific language in the policy, but rather is premised upon New
Jersey Court Rule 4:42-9(a). Under that rule, which deals
generally with liability for attorney's fees in civil actions,
the relevant subsection provides that no attorney's fees are
"allowed in the taxed costs or otherwise, except . . . (6) In an
action upon a liability or indemnity policy of insurance, in
favor of a successful claimant." N.J. Ct. R. 4:42-9(a)(6). The
intention of the rule is to allow "an award for counsel fees only
where an insurer refused to indemnify or defend in respect of its
insured's third-party liability to another." Eagle Fire Prot. Corp. v. First Indem. of Am. Ins. Co.,
145 N.J. 345, 363, 678 A.2d 699, 708 (1996) (citations omitted); see
also Leonardis v. Burns Int'l. Sec. Servs., Inc.,
808 F. Supp. 1165, 1187 (D.N.J. 1992) (citing Guarantee Ins. Co. v. Saltman,
217 N.J. Super. 604, 610-11, 526 A.2d 731, 735 (App.Div. 1987)).
The Rule does not apply in cases where an insured directly sues
its insurer "to enforce casualty or other first-party direct
coverage." Leonardis v. Burn Int'l Sec. Servs., Inc.,
808 F. Supp. at 1187 (no recoverable counsel fees because plaintiff's
claim concerns first-party coverage) (citing Guarantee Ins.
Co., 217 N.J. Super. at 610-611, 526 A.2d at 735); see also
Oritani Sav. & Loan Ass'n v. Fid. & Deposit Co.,
744 F. Supp. 1311, 1320 n. 11 (D.N.J. 1990); Giri v. Med. Inter-Ins. Exch.,
251 N.J. Super. 148, 151, 597 A.2d 562, 556 (Ch.Div. 1991).
Generally, litigating parties are responsible for their own legal
costs. Eagle Fire, 145 N.J. at 363, 678 A.2d at 708. Thus,
attorney fees will not be awarded to an insured in a suit against
an insurer where the claim involves direct first-party coverage.
Here, Mrs. Feit asserts both of her claims against Great-West,
her husband's primary insurer. The New Jersey Court Rule is only
applicable in cases where the plaintiff has incurred third-party
liability to another person. Because Mrs. Feit's claim is against
a first-party insurer, an award of attorney fees is not
available. Thus, summary judgment dismissing Mrs. Feit's request
for attorney's fees is granted. Conclusion
For the reasons stated above, it is hereby ordered that
Great-West's summary judgment motion is GRANTED in part and
DENIED in part. Summary judgment dismissing Plaintiff's breach of
contract claim is DENIED. Summary judgment dismissing Plaintiff's
bad faith claim and request for attorney's fees is GRANTED with
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