Ball v. Unum Group Corporation et al

Filing 32

MEMORANDUM OPINION AND ORDER directing that the 27 Motion for SummaryJudgment is GRANTED; A separate Judgment will be entered in accordance with this Order. Signed by Honorable Judge W. Harold Albritton, III on 6/20/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
ALLEN BALL,
Plaintiff,

UNUM GROUP CORPORATION, et al.,
Defendants.

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CIVIL ACTION NO. 03:10cv572-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. FACTS AND PROCEDURAL HISTORY
This cause is before the court on the Defendants’ Motion for Summary Judgment (Doc.
#27).
The Plaintiff, Allen Ball ("Ball"), originally filed a Complaint in the Circuit Court of
Macon County, Alabama on June 4, 2010. The Complaint alleges state law claims for denial of
benefits under a disability insurance policy, for fraud, and for bad faith.
Ball's claims arise from a denial of disability benefits by the Defendants, Unum Group
Corporation, AXA Equitable Company, the Equitable Life Assurance Society of the United
States (collectively “Unum”).
Ball purchased coverage under a disability insurance policy in July 1995. At that time
he was employed as the President and CEO of Memphis Health Center. His employer paid the
premiums for the disability insurance coverage. Unum points out the policy contains a renewal
option which provides as follows:
7.1 Renewal Option
After your 65th birthday You may continue Your Policy for the Total Disability
benefit while:

a. You remain actively and regularly employed full time for at
least 30 hours per week; and
b. The premium is paid on time.
We can require proof after Your 65th birthday that You have continued to be
actively and regularly employed full time.
Def. Ex. #2, p. UG-CL-IDI-263.
On May 2, 2006, Unum sent Ball a letter advising him that he had to remain regularly
and actively employed full time to continue disability benefits. See id. at p. UG-CL-IDI-180. In
June 2006, Ball turned 65 years of age.
On April 18, 2008, Ball was terminated from his employment. Ball scheduled cancerrelated surgery for June 2008. Ball initiated a claim for disability benefits on July 3, 2008 based
on his surgery. The claim form stated that Ball’s last date worked was April 18, 2008. Id. at p.
UG-CL-IDI-184.
In December 2008, after the investigation of the benefits claim, Unum sent Ball a letter
advising him that Unum was denying his claim for long term disability benefits because he was
not employed full time after April 18, 2008, and therefore was no longer covered by the Policy.
Ball has stated in his deposition that although he was laid off in April 2008, his
termination was wrongful, and a decision was later made to honor his contract. Ball began
receiving unemployment compensation, however, from the Commonwealth of Massachusetts as
early as July 19, 2008. See id. at p. UG-CL-IDI-193.
Ball subsequently moved to Alabama, and filed a suit. On July 6, 2010, the case was
removed by the Defendants to federal court on the basis of diversity subject matter jurisdiction,
pursuant to 28 U.S.C. § 1332, 1441, 1446. Unum filed an Answer to the Complaint on July 7,

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2010. No Motion to Remand was filed, and it appears that the court has diversity subject matter
jurisdiction in this case.
Unum filed a Motion for Leave to Amend Answer on March 14, 2011, seeking to add
affirmative defenses under the Employee Retirement Income Security Act of 1974 (“ERISA”).
The court denied the motion as being untimely, with no showing of just cause for the
untimeliness. See Doc. #31.
For the reasons to be discussed, the Motion for Summary Judgment is due to be
GRANTED.
II. DISCUSSION
Unum timely filed a Motion for Summary Judgment on May 19, 2011. The Motion was
accompanied by a supporting brief and evidence, including deposition testimony, affidavits, and
documents. The court issued an order giving Ball until June 10, 2011, to file a response to the
Motion, and setting June 17, 2011 as the date of submission for the motion. See Doc. #30. As of
the date of this Memorandum Opinion and Order, no response in opposition to the Motion for
Summary Judgment has been received by this court.
A district court cannot base the entry of summary judgment on the mere fact that the
motion was unopposed, but, rather, must consider the merits of the motion. U.S. v. One Piece of
Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir.
2004). The district court need not sua sponte review all of the evidentiary materials on file at the
time the motion is granted, but must ensure that the motion itself is supported by evidentiary
materials and must review all of the evidentiary materials submitted in support of the motion for
summary judgment. Id. at 1101-02. Accordingly, the court has reviewed the evidentiary

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materials presented by Unum in accordance with Rule 56 of the Federal Rules of Civil
Procedure.
A party asking for summary judgment pursuant to Rule 56 "always bears the initial
responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The movant can meet this burden by presenting evidence showing
there is no dispute of material fact, or by showing, or pointing out to, the district court that the
nonmoving party has failed to present evidence in support of some element of its case on which
it bears the ultimate burden of proof. Id. at 322-324.
In the instant case, Unum has met this burden. It has submitted multiple documents,
including the insurance policy at issue, Ball's claim file, a transcript of Ball’s deposition, and
other evidence. Unum has addressed each element of the claims against it, and referred to
evidence in the record.
Once the moving party has met its burden, Rule 56 "requires the nonmoving party to go
beyond the pleadings," Celotex, 477 U.S. at 324, and cite “to particular parts of the materials in
the record.” Rule 56(c)(1). If the adverse party does not so respond, summary judgment shall
be granted if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
By failing to file any response to the Motion for Summary Judgment, Ball has failed to
meet his burden under Rule 56. Further, the court has reviewed the evidentiary materials
submitted by Unum and finds no question of fact as to any material issue raised by Unum as a
ground for summary judgment, including, but not limited to, the fact that Ball was not actively
and regularly employed full time, within the meaning of the policy at issue, after April 18, 2008.

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The court finds that Unum is entitled to judgment as a matter of law on all claims in the
Complaint.
III. CONCLUSION
For the reasons discussed, it is hereby ORDERED that the Motion for Summary
Judgment (Doc. #27) is GRANTED. A separate Judgment will be entered in accordance with
this Order.

Done this 20th day of June, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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