Bardill v. Lincoln National Life Insurance Company et al

Filing 16

ORDER re Plaintiff's Second Claim for Relief re 15 Stipulation filed by Sharon Bardill. Signed by Judge Charles R. Breyer on 3/05/2010. (be, COURT STAFF) (Filed on 3/8/2010)

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JULIAN M. BAUM (CA State Bar No. 130892) JULIAN M. BAUM & ASSOCIATES 9 Tenaya Lane Novato, California 94947 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] C. JUDITH JOHNSON (CA State Bar No. 104557) CAMERLENGO & JOHNSON 500 Airport Boulevard, Suite 350 Burlingame, California 94010 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Plaintiff Sharon Bardill UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SHARON BARDILL, an individual, ) ) Plaintiff, ) ) v. ) ) THE LINCOLN NATIONAL LIFE ) INSURANCE COMPANY; JEFFERSON ) PILOT FINANCIAL INSURANCE ) COMPANY; CAMINAR ) COMPREHENSIVE HEALTH AND ) WELFARE BENEFIT PLAN; and ) CAMINAR, in its capacity as Plan ) Administrator of the Caminar Comprehensive ) Health and Welfare Benefit Plan, ) ) Defendants. .

Case No. C 09-03025 CRB STIPULATION AND [Proposed] ORDER RE PLAINTIFF'S SECOND CLAIM FOR RELIEF

STIPULATION AND PROPOSED ORDER RE SECOND CLAIM FOR RELIEF

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Case No. C 09-03025 CRB

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Whereas this is an action seeking recovery of disability benefits and related relief under

the Employee Retirement Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq; and 2. Whereas by this Stipulation and Proposed Order the parties seek to simplify the

pleadings, and to further judicial economy by avoiding potential technical pleadings motions regarding proper parties defendant under ERISA. Specifically, the parties stipulate that plaintiff shall dismiss her second claim for relief for breach of fiduciary duty, and defendant Lincoln National Life Insurance Company, in addition to the defendant ERISA "plan," shall bear responsibility for any relief awarded by the Court to plaintiff; 3. Whereas, current Ninth Circuit jurisprudence provides that a plaintiff may not assert an

ERISA claim for disability benefits under 29 U.S.C. §1132(a)(1)(B) against the group disability insurance company that issued and administered the disability insurance policy at issue, but may assert such a claim only against the ERISA "plan" as an entity, without respect to whether that plan has assets or may otherwise be subject to an enforceable money judgment. Ford v. MCI Communications Corp. Health and Welfare Plan, 399 F.3d 1076, 1081 (9th Cir. 2005). Rather, a plaintiff may plead a claim against said insurer for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3) and seek to establish that she has no adequate legal remedy under 29 U.S.C. §1132(a)(1)(B). Ehrman v. Standard Ins. Co., 2007 WL 1288465 at *4-5 (N.D. Cal. 2007)(plaintiff may plead claim against insurer for breach of fiduciary duty under 29 U.S.C. §1132(a)(3).); Wherefore, The parties stipulate and respectfully request the Court order as follows: a. Plaintiff's Second Claim for Relief is dismissed without prejudice; b. Defendant Lincoln National Life Insurance Company shall bear responsibility for any relief ordered by the Court to plaintiff in this action; c. For so long as the Court's judgment remains unsatisfied in whole or in part, defendants waive any statute of limitations defense to assertion by plaintiff of the claim for relief dismissed by this Stipulation and Proposed Order. ///
STIPULATION AND PROPOSED ORDER RE SECOND CLAIM FOR RELIEF

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Case No. C 09-03025 CRB

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Dated: January 4, 2010

Respectfully submitted, JULIAN M. BAUM & ASSOCIATES /s/ by Julian M. Baum by__________ ______________ JULIAN M. BAUM Attorneys for Plaintiff

Dated: October 16, 2009

GORDON & REES LLP /s/ by Tad A. Devlin by__________ ______________ TAD A. DEVLIN Attorneys for Defendants ORDER

The parties having stipulated as set forth above, IT IS SO ORDERED. March 05, 2010 DATED: January ___, 2010

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STIPULATION AND PROPOSED ORDER RE SECOND CLAIM FOR RELIEF

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Case No. C 09-03025 CRB

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