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Berger v. Unum Life Insurance Co. of America

March 9, 2006

RE: BERNARD J. BERGER, M.D.
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA



The opinion of the court was delivered by: Madeline Cox Arleo United States Magistrate Judge

CHAMBERS OF MADELINE COX ARLEO UNITED STATES MAGISTRATE JUDGE

MARTIN LUTHER KING COURTHOUSE 50 WALNUT ST. ROOM 2060 NEWARK, NJ 07101 973-297-4903

LETTER OPINION

Dear Counsel:

Before me is the motion of defendant, Unum Life Insurance Company of America ("Unum"), for a protective order pursuant to Fed. R. Civ. P. 26(c) to limit discovery to the administrative record under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1001, et seq. Having considered the moving and reply papers of Unum, and the opposition brief of plaintiff, Bernard J. Berger, M.D. ("Berger"), and having heard oral argument on December 8, 2005, and for the reasons set forth below, Unum's motion for a protective order limiting discovery to the administrative record is denied, because ERISA does not govern this action.

FACTUAL BACKGROUND

On September 12, 2001, Berger was terminated from his employment at Synavant, Inc. due to a reduction in force. (Certification of Counsel Steven P. Del Mauro ("Del Mauro Cert.") ¶ 12). As an employee, Berger had group long-term disability coverage under a policy issued by Unum. (Del Mauro Cert. ¶ 3). The group policy contained a section entitled "Long-Term Disability -- Other Benefit Features" which provided:

WHAT INSURANCE IS AVAILABLE IF YOU END EMPLOYMENT?

(Conversion)

If you end employment with your Employer, your coverage under the plan will end. You may be eligible to purchase insurance under UNUM's group conversion policy. To be eligible, you must have been insured under your Employer's group plan for at least 12 consecutive months. We will consider the amount of time you were insured under the UNUM plan and the plan it replaced, if any. You must apply for insurance under the conversion policy and pay the first quarterly premium within 31 days after the date your employment ends.

UNUM WILL DETERMINE THE COVERAGE YOU WILL HAVE UNDER THE CONVERSION POLICY. THE CONVERSION POLICY MAY NOT BE THE SAME COVERAGE WE OFFERED YOU UNDER YOUR EMPLOYER'S GROUP PLAN.

(Del Mauro Cert., Ex. 1) (emphasis added).

On October 18, 2001, Berger applied with Unum for conversion coverage pursuant to the terms and provisions of the group policy. (Id., Ex. 3). On November 8, 2001, Berger received a Conversion Certificate from Unum with an effective date of September 12, 2001. (Id., Ex. 4). The cover letter stated that "[t]he coverage provided may not be identical to the protection provided under your group contract." ( Id.) The letter also stated that the premium due on his next generated bill will reflect a quarterly premium with any adjustments. ( Id.)

On January 10, 2003, Berger applied for long-term disability benefits. (Complaint, First Count ¶ 2). By letter dated July 29, 2003, Unum denied plaintiff"s request for benefits. (Complaint, First Count ¶ 4). Thereafter, on April 27, 2005, Berger filed this action alleging that the denial was improper and in bad faith and seeking damages. (Complaint at 1-2.) Thereafter, Unum removed this action on the ground ...


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