Rosen v. UNUM Provident Corporation

Filing 40

ADDENDUM TO MEMORANDUM OPINION OF JANUARY 21, 2015 In its opinion of January 21, 2015, the court overlooked the significance of Exhibit A attached to Rosen's second amended complaint. The memorandum opinion of January 21, 2015, is AMENDED as noted within. Signed by Judge William M Acker, Jr on 1/29/15. (SAC )

FILED
2015 Jan-29 PM 02:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LAWRENCE ROSEN, M.D.,
Plaintiff,
v.
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.

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CIVIL ACTION NO.
2:14-cv-0922-WMA

ADDENDUM TO MEMORANDUM OPINION OF JANUARY 21, 2015
In its opinion of January 21, 2015, the court overlooked the
significance of Exhibit “A” attached to Rosen’s second amended
complaint.

During briefing, Provident argued that this document

was irrelevant and should not be considered. As the court now sees
it, the document has great significance as an admission against
Provident’s interest, and is therefore highly relevant.
The document is a Provident internal memorandum disseminated
on October 2, 1995, by Jeff McCall.

The court assumed, either

correctly or incorrectly, that the document was included in Rosen’s
lengthy second amended complaint as support for his RICO claims,
and was not offered in defense of Provident’s motion for partial
summary judgment based on alleged ERISA preemption of the state law
claims. The court now realizes how important this memorandum is to
a decision on Provident’s ERISA preemption claim.

Even though the

court has already denied ERISA preemption, a brief addendum is in
order.

The insurance policies involved in Rosen’s case were sold in
1990, without any oral or written mention of ERISA.

In other

words, there was nothing at that time to indicate an intention to
form an employee benefits plan governed by ERISA.
later,

on

believed,

October
Provident

2,

1995,

realized

if

the

that

McCall
if

any

Five years

memorandum
of

its

can

be

disability

insurance policies could be shoe-horned into the ERISA mold, a
great deal of money could be saved.
The pertinent language in the memorandum is as follows:
In order to take advantage of ERISA protection, we need
to be diligent and thorough in determining whether a
policy is covered. Accordingly, I have attached a rough
draft of questions that should be asked in our claim
investigation process. I recommend that it be used for
all claims. The key for determining the applicability of
ERISA is whether or not the employer “sponsors” or
“endorses” the plan. If the employer pays the premium,
the policy would usually, but not always, be considered
to be governed by ERISA. Salary allotment or payroll
deduction arrangements, by themselves, do not necessarily
mean that a policy is subject to ERISA.
While our
objective is to pay all valid claims and deny invalid
claims, there are gray areas, and ERISA applicability may
influence our course of action.
Another requirement needed in order to take advantage of
the protection offered by ERISA, is to establish a formal
appeal process for ERISA situations.
When we deny a
claim, we must include language in our letter that
informs the claimant of the right to appeal our decision
within 60 days.
I have attached a copy of sample
language. The appeal must be in writing and should be
reviewed by a panel specifically established to review
ERISA appeals. I recommend that the panel be composed of
Chris Kinback, Bob Parks, Becky Absher, Tom Timpanaro and
me.
None of the essential elements for an ERISA plan described by

2

McCall were in the disability policies sold to Rosen, and upon
which he now sues.

There was no “formal appeal process”.

was no “endorsement” by the employer.

There

There was no “sponsor” of

the policies. The requirements for establishing an ERISA plan were
the same in 1990, in 1995, and at the time Rosen became disabled,
but Provident did not start the characterizing process until Rosen
filed his suit.
The memorandum opinion of January 21, 2015, is hereby AMENDED
to add the foregoing.
DONE this 29th day of January, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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