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Suarez v. Provident Life and Casualty Insurance Co.

United States District Court, D. New Jersey

March 9, 2015

Gerardo SUAREZ, Plaintiff,


KEVIN McNULTY, District Judge.

This matter comes before the court on the motion (ECF No. 5) of Defendants to dismiss all claims against First Unum, Inc. and to dismiss Counts II and III of the amended complaint (ECF No. 4).[1] Plaintiff Gerardo Suarez brings this action against Defendants First Unum, Inc. ("First Unum") and Provident Life and Casualty Co. ("Provident"), pleading violations of ERISA, 29 U.S.C. §1132 (a)(1)(b) and RICO, 18 U.S.C. §1961, et seq., as well as breach of contract and fraud. Suarez alleges that Provident, the carrier of his long-term disability insurance coverage, wrongfully discontinued his disability payments.

For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED part.


Provident and Unum contend that Unum did not issue the insurance policy under which Suarez sues herein. Therefore, they ask that all claims against Unum be dismissed. (Def. Mot. 1, ECF No. 5). The first complaint named only Unum as a defendant. ( Id. ). After the complaint was filed, Unum contacted Suarez to indicate that it was improperly named as a defendant because Suarez's policy was issued by Provident. ( Id. ). To avoid a motion to dismiss based on Unum being an improper defendant, Suarez's counsel agreed to file an amended complaint. ( Id. ; see ECF Nos. 3, 4). However, it appears that the amended complaint still lists First Unum in the caption, which reads "Provident Life and Casualty Insurance Co., s/h/a First Unum, Inc." (ECF No. 4).

The caption in the amended complaint appears to be in error. As Suarez acknowledges, "the entity he intended from the commencement of the suit to name was Provident Life and Casualty Insurance Co." (Pl. Opp. 1 n.1, ECF No. 7). Because Suarez does not object to the dismissal of Unum as a defendant ( id. ), all claims against Unum will be DISMISSED and the caption will be amended to delete any reference to Unum.[2]


Plaintiff Gerardo Suarez was an employee of Intesa San Paolo, S.P.A. ("Intesa") until he became disabled and stopped working. (Am. Compl. ¶3, ECF No. 4).

Defendant Provident is a long-term disability compensation carrier that was an insurer and plan administrator of a group plan for employees of Intesa. ( Id. ¶4). Suarez alleges that Provident was a subsidiary of Unum, a holding company, and one of the Unum "family of companies." ( Id. ¶5).

Suarez was one of the employees insured by Provident. ( Id. ¶ 4). At some point, Provident was terminated as a group carrier. At that time, Provident offered employees the opportunity to continue their coverage under individual plans by entering into agreements with Provident for comparable coverage. ( Id. ¶ [24). Suarez accepted this offer. ( Id. ¶24).

At some point, Suarez was injured in two accidents involving trauma to his head, causing him neurological damage. ( Id. ¶8). Following the accidents, in February 2008, Suarez was awarded Social Security benefits. ( Id. ). The Social Security Administration determined that Suarez's disability began in December 2006. ( Id. ).

In January 2008, Suarez notified Provident that he had been unable to work since December 2006. ( Id. ¶ 6). Provident found that Suarez was eligible for long-term disability payments in the amount of $2, 700 per month, which Provident began paying. ( Id. ¶ 9). Suarez alleges that Provident continued making the payments for several years and then sought evidence that "would allow it to cease paying" him. ( Id. ¶ 10).

Specifically, Suarez alleges that Provident hired Dr. Alexander B. Chervinsky, a neuropsychologist, to "make every effort to render a report which would be unfavorable to Mr. Suarez's continued disability." ( Id. ¶ 11). In September 2010, Dr. Chervinsky examined Suarez and wrote a report finding that he was not disabled. ( Id. ¶ 12). Based on this report and "other consulting reviews it paid for, " Provident discontinued its payments to Suarez. ( Id. ¶ 13). Suarez alleges that this was contrary to the opinions of his treating and consulting physicians and neuropsychologists. ( Id. ). He also alleges that Dr. Chervinsky's finding of no disability was made "despite [his] sensory problems symptomatic of neurological impairment, " including difficulties with concentration and senses such as taste and smell. ( Id. ¶ 14). Suarez alleges that Dr. Chervinsky ignored many of his other symptoms, including:

bizarre behavior indicative of cognitive deficits, such as urinating in a waste paper basket, and taking a shower with his clothes on, and Mr. Suarez's inability to remember words, differences in his experiences of smells and tastes, and other behaviors ...

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