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Digiacomo v. Prudential Insurance Company of America

August 10, 2007


The opinion of the court was delivered by: Irenas, Senior District Judge



This case involves Defendant's denial of Plaintiff's long term disability benefits under 29 U.S.C. § 1001, et seq. ("ERISA") due to Plaintiff's allegedly fraudulent statements.*fn1

Defendant, the Prudential Insurance Company of America ("Prudential"), moves for summary judgment on Plaintiff Robert DiGiacomo's ("DiGiacomo") allegation that it unlawfully denied his right to disability benefits under its long term disability policy. Prudential also moves for summary judgment on its counterclaim seeking an equitable trust or constructive lien on the benefits it claims it wrongfully paid DiGiacomo. For the reasons set forth below, Prudential's motion for summary judgment will be granted as to DiGiacomo's ERISA claim and denied as to the counterclaim.


Robert DiGiacomo suffers from Miniere's Disease.*fn2 He worked at the Sands Casino Hotel ("the Sands") in Atlantic City, New Jersey, from 1980 until April 29, 2003, at which time he was a Floor Manager, or "pit boss," with Shift Manager functions. (Pl. 56.1 Stat. ¶ 1). The job required that DiGiacomo stand for approximately 7 hours per shift and work for a minimum of 40 hours per week. (Pl. 56.1 Stat. ¶ 2). On April 29, 2003, DiGiacomo experienced an episode of vertigo and vomiting at work that resulted in medics carrying him off the casino floor.*fn3*fn4, Due to that incident, DiGiacomo took a medical leave of absence.

On August 21, 2003, the Sands sent DiGiacomo a letter informing him that, pursuant to its leave of absence policy, DiGiacomo must return to work by September 25, 2003. (Pl. Cert. Ex. C). In October of 2003, DiGiacomo applied for Long Term Disability Benefits ("LTD Benefits") through Prudential's Group Policy G-41543 (the "Group Policy").*fn5*fn6, A report signed by DiGiacomo's ear, nose, and throat specialist, Vytas B. Suliunas, DO, dated November 3, 2003, indicates that DiGiacomo completed a metabolic vertigo profile exam on October 21, 2003, and returned for a follow-up visit on October 31st. (Pl. Cert. Ex. L). The report states that DiGiacomo has "episodic vertigo, nausea, vomiting, left aural fullness consistent with left Miniere's Disease." (Id.).

In December of 2003, Prudential reviewed DiGiacomo's request for LTD Benefits. On December 17, Prudential sent a letter indicating that the request was approved, retroactive to October 26, 2003, and valid though February 29, 2004. (Pl. Ex. I). The letter further stated that, According to the Group Policy, you are disabled when Prudential determines that: you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and you have a 20% or more loss in your indexed monthly earnings due to that sickness or injury.

After 24 months of payments, you are disabled when Prudential determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.


On February 11, 2004, DiGiacomo saw Dr. Siliunas again. (Pl. Cert. Ex. M). The doctor indicated that while DiGiacomo had felt significant improvement, he experienced an exacerbation of the disease five weeks prior to the appointment. (Id.). The report concluded that DiGiacomo would be referred to Dr. Thomas Willcox, a neurotologist at Thomas Jefferson University Hospital, for consultation. (Id.). Based upon Dr. Suliunas' report, on February 26, 2004, Prudential extended DiGiacomo's LTD Benefits through April of 2004. (Artis Cert. ¶ 8).*fn7

Dr. Willcox saw DiGiacomo on April 2, 2004, and concluded that he had left Miniere's disease. (Pl. Cert. Ex. N). DiGiacomo then went for a follow-up visit with Dr. Suliunas on April 30, 2004, who found that DiGiacomo continued to suffer from the disease. (Pl. Cert. Ex. O). On May 24, 2004, Prudential Claims manager Brian Fuller noted that DiGiacomo states that he has good days and bad days. Fuller suggested that Prudential obtain more information about DiGiacomo's limitations, including asking him if he drives. (Artis Cert. Ex. E).*fn8 In a follow-up telephone call on May 26, 2004, Aneesha Fain of Prudential asked DiGiacomo if he drives. The call log indicates that DiGiacomo stated that although he has a license, upon his doctor's advice, he has not driven since September of 2003. (Artis Cert. Ex. H).

Prudential then arranged for DiGiacomo to be observed, purportedly in an effort to gain a clearer understanding of DiGiacomo's daily activities. Prudential obtained video of DiGiacomo engaging in physical activities on June 29, July 2, 3, 24, and August 20, 2004. (Artis Cert. Ex. K.). Prudential observed DiGiacomo "walking, standing, entering and exiting a vehicle, driving, sitting and bending. Additionally, DiGiacomo was observed for over two hours on two separate occasions working at the Nostalgia Room restaurant,*fn9 walking, standing, bending, taking reservations, managing staff, and performing other host duties." (Artis Cert. Ex. L).

Based upon the findings of this surveillance, which allegedly contradict DiGiacomo's previous statements about his condition, Prudential terminated DiGiacomo's benefits on September 28, 2004, effective September 1, 2004. (Artis Cert. Ex. G). ...

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