Krieger v. Nationwide Mutual Insurance Company et al

Filing 20

ORDER denying 16 Motion for Preliminary Injunction. The Court will set a case management conference by separate order. Signed by Judge David G Campbell on 8/25/2011.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kory Dean Krieger,
Plaintiff,

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No. CV-11-1059-PHX-DGC
ORDER

vs.
Nationwide Mutual Insurance Company,
Defendant.

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Kory Krieger is a former employee of Nationwide Mutual Insurance Company.

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He suffered a panic attack at work on August 20, 2008, went on disability leave the next

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day, and began receiving benefits under an employee long-term disability income

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benefits plan on March 1, 2009. The benefits were terminated February 28, 2011.

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Krieger filed suit against Nationwide three months later. Doc. 1. Counts one

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through three of the complaint assert ERISA claims for recovery of benefits, breach of

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fiduciary duty, and failure to provide an adequate summary plan description.

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¶¶ 15-20. Count four seeks injunctive relief in the form of reinstatement of benefits. Id.

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¶¶ 21-24.

Id.

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Plaintiff has filed a motion for a preliminary injunction. Doc. 16. Defendant has

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filed a response. Doc. 19. No reply has been filed. For reasons stated below, the motion

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will be denied.1

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Plaintiff’s request for oral argument is denied because the issues have been
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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To obtain a preliminary injunction, Plaintiff must show that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

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relief, that the balance of equities tips in his favor, and that an injunction is in the public

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interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008).

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The test includes a sliding scale. If Plaintiff shows that the balance of hardships will tip

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sharply in his favor, he need not make as strong a showing of the likelihood of success on

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the merits – the existence of serious questions will suffice. Alliance for Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

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The termination of benefits was wrongful, Plaintiff asserts, because it was based

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on an ambiguous, and narrowly construed, mental health limitation contained in the

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summary plan description. Doc. 16 at 2-4, 7. Defendant disputes that this was the reason

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for the termination of benefits. Doc. 19 at 2-5. As explained in a letter to Plaintiff dated

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May 18, 2011 (Doc. 19-3 at 9-10), Defendant claims to have terminated his benefits

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because he had exhausted the maximum benefits allowable under the plan regardless of

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the cause of his disability. Specifically, because Plaintiff’s long-term disability coverage

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had been in effect for only 16 months before he began receiving benefits, he was entitled

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to a maximum of 24 months of benefits under the plan. Doc. 19-2 at 42. Plaintiff does

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not challenge the applicability of this durational limitation.

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Defendant argues, correctly, that Plaintiff has not shown that he is likely to

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succeed on the merits. Nor has he demonstrated the existence of serious questions,

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that is, “a fair chance of success on the merits.” Republic of the Philippines v. Marcos,

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862 F.2d 1355, 1362 (9th Cir. 1988) (citation omitted). Because Plaintiff has failed to

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show a likelihood of success on the merits or the existence of serious questions, the Court

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will not issue a preliminary injunction.

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requirements for preliminary injunctive relief.

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IT IS ORDERED:

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1.

The Court need not address the other

Plaintiff’s motion for preliminary injunction and reinstatement of disability

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benefits (Doc. 16) is denied.

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The Court will set a case management conference by separate order.

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Dated this 25th day of August, 2011.

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