United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on a Motion by Plaintiff John
Edward Bell, DDS, (“Bell”) for Leave to File an
Amended Complaint. ECF No. 14. Defendants oppose
Plaintiff's Motion. ECF No. 15. The Court has fully
reviewed the submissions of the parties and considers same
without oral argument pursuant to Fed.R.Civ.P. 78. For the
reasons set forth below, Plaintiff's Motion for Leave to
File an Amended Complaint is DENIED.
1990, Plaintiff, a dentist, purchased an individual
disability income insurance policy from Defendant Crown Life
Insurance Co. (“Crown Life”), of Canada. ECF No.
1 at p. 2. Plaintiff made regular, biannual premium payments
for that policy from 1990 through mid-2011. Id. at
p. 3. In late 2010, Plaintiff began to experience vision
problems that eventually made the continued practice of
dentistry impracticable. Id. at p. 5-7. As a result,
Plaintiff filed a claim for disability with Defendant Crown
Life, which in 1998 had been acquired by Defendant Canada
Life Assurance Co. (“Canada Life”). Id.
at 7. After evaluation of the claim documents, including an
ophthalmologist's conclusion that Dr. Bell was unable to
continue the practice of dentistry, Defendants approved Dr.
Bell's claim for total disability by letter dated March
5, 2011 and began issuing benefits. Id. at 8. The
policy provides a monthly benefit of $4, 900 and has two
definitions of disability, one governing a claimant under the
age of 65 and a slightly different definition governing
claimants older than 65 or who had received payments for more
than five consecutive years. Id. at 3. Under the age
of 65, disability is defined as “unable, due to injury
or sickness to engage in the material and substantial duties
of Your regular occupation, ” while the
over-65 definition is “unable, due to Injury or
Sickness, to perform in any gainful occupation. Any
gainful occupation means work for which You are reasonably
suited by Your education, training and experience.”
Id. (emphasis added). Dr. Bell turned 65 in
August 2015. Id. at 9. At some point, a Canada Life
nurse “issued a Medical Review Specialist Report
suggesting that ‘Dr. Bell could likely return to work
in a profession other that [sic] patient care
dentistry.'” Id. After Dr. Bell turned
sixty-five, “Defendants performed an Occupational
Review in November 2015 which suggested vocational
alternatives for Dr. Bell.” Id.
Plaintiff's claim was denied on December 9, 2015, with
benefits last being paid in January 2016. Id. at
9-10. Plaintiff contends this review “did not consider
that Dr. Bell has no visual ability to use a computer or to
read any lengthy material and retain the information he
reads.” Id. at 9.
appealed in July 2016, submitting documents that included
medical records updated through May 2016. Id.
“From July 2016 to the present, nearly five months
later, Defendant Canada Life has simply issued monthly form
letters indicating that the claim is still under
review.” Id. Plaintiff filed his Complaint in
October 2016. Defendants filed an Answer in January 2017. ECF
No. 4. In June 2018, Plaintiff filed the instant Motion
seeking Leave to File an Amended Complaint. ECF No. 14.
Defendants oppose the motion. ECF No. 15.
may amend its pleading once as a matter of right within
either (1) twenty-one days of serving it; or (2) where the
pleading is one to which a responsive pleading is required,
the earlier of twenty-one days following service of the
responsive pleading or a motion to dismiss. Fed.R.Civ.P.
15(a)(1). Once those deadlines have expired, “a party
may amend its pleading only with the opposing party's
written consent or the court's leave” and
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a). The decision to grant
leave to amend rests within the sound discretion of the trial
court. Zenith Radio Corp. v. Hazeltine Research
Inc., 401 U.S. 321, 330 (1970). In determining a motion
for leave to amend, courts consider the following factors:
“(1) undue delay on the part of the party seeking to
amend; (2) bad faith or dilatory motive behind the amendment;
(3) repeated failure to cure deficiencies through multiple
prior amendments; (4) undue prejudice on the opposing party;
and/or (5) futility of the amendment.” See Great
Western Mining & Mineral Co. v. Fox Rothschild LLP,
615 F.3d 159, 174 (3d Cir. 2010) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
seeks to amend the Complaint to add two main elements. First,
Plaintiff proposes adding allegations in Count Two, which
presently states, “Defendants have violated the public
policy of the State of New Jersey, as enunciated in the New
Jersey Unfair Claim Settlement Practice Act.” ECF No.
14. In the proposed Amended Complaint, that allegation in
paragraph 89 would be followed by a new paragraph 90,
matching allegations of Defendants' acts to specific
language from various provisions of that New Jersey statute.
For instance, Plaintiff seeks to add the allegation that
Defendants “[m]isrepresented pertinent facts and
insurance policy provisions relating to Dr. Bell's
coverage by, for example, failing to inform Dr. Bell of the
impact the incurred date of disability would have on his
future benefits, by failing to notify Dr. Bell of the change
in the definition before denying the claim. N.J.R.S. §
17B:30-13.1(a).” Id. Pursuant to §
17B:30-13.1(a), an unfair claim-settlement practice includes:
“Misrepresenting pertinent facts or insurance policy
provisions relating to coverages at issue.” In sum, the
proposed Amended Complaint would add five allegations of acts
along with language from the New Jersey Unfair Claim
Settlement Practice Act defining those acts as an unfair
claim settlement practice. Id.
a new paragraph 91 states, “On June 7, 2018, the New
Jersey Senate passed the New Jersey Insurance Fair Conduct
Act, which establishes a private cause of action for
claimants whose insurance claims are (1) unreasonably delayed
or denied; or (2) administered in violation of the New Jersey
Unfair Claims Settlement Practices Act. The bill is further
evidence of the unlawfulness of Defendant's
Answer to the Complaint having been filed in January 2017,
Plaintiff can not timely file an Amended Complaint as of
right pursuant to Fed.R.Civ.P. 15(a). Thus, Plaintiff
requires either Defendants' consent or this Court's
leave to amend the Complaint.
says the proposed additions are intended “primarily to
elaborate on arguments in support of his bad faith claim,
including allegations about the public policy of the State of
New Jersey, and to preserve argument in the event of
appellate proceedings given the recent passage of a bill in
the New Jersey State Senate addressing insurer bad faith
claims handling.” Plaintiff further contends the Motion
satisfies the Great Western factors mentioned above.
First, Plaintiff says the timing of the Motion does not
constitute undue delay because it was filed so soon on the
heels of the Senate's unexpected passage of the New
Jersey Insurance Fair Conduct Act that “counteract[s]
precedent of the New Jersey Supreme Court foreclosing an
implied private right of action under the New Jersey Fair
Claims Settlement Practices Act.” See Pl.'s Br. in
Supp. of Mot. to Amend Compl. at 7. Second, Plaintiff says
the Amended Complaint would not cause unfair prejudice to
Defendants because it “merely elaborates on an existing
claim” and as such would not require, among other
things, the expending of added resources for discovery.
Id. at 7-8. Third, Plaintiff asserts the Motion
“is neither intended to delay litigation nor motivated
by bad faith.” Id. at 8-9. Finally, Plaintiff
contends the Motion is “not futile because the
amendment seeks to bolster an existing bad faith claim and is
supported by the public policy of the State of New Jersey and
impending changes to New Jersey's bad faith law.”
Id. at 9-10.
object, focusing primarily on the proposed addition of a new
paragraph 91 referencing the New Jersey Insurance Fair
Conduct Act. Defendants contend Plaintiff has no standing to
bring such allegations because the New Jersey Insurance Fair
Conduct Act is, at this point, a bill, and not a duly enacted
law of the State of New Jersey. See Def.'s Br. in Opp. to
Mot. to Amend Compl. at 1. Defendants also object to the
allegations in the proposed paragraph 90, based on the New
Jersey Unfair Claim Settlement Practice Act, as untimely
because that statute was enacted in 2013 and thus Plaintiff
had ample time and notice to include such claims in the
original Complaint. Id.
Court's examination begins with the premise admitted by
Plaintiff and argued by Defendants, namely that the New
Jersey Insurance Fair Conduct Act referenced in paragraph 91
of the proposed Amended Complaint is not yet a law. Since a
bill does not become a law until it is passed by both houses
of the New Jersey Legislature and is signed by the Governor,
a purported violation of a bill can not state a claim for