Smith v. Liberty Mutual Group, Inc.

Filing 45

MEMORANDUM DECISION AND ORDER Plaintiff's Motion for Summary Judgment (Dkt. 27 ) is DENIED. Defendant's Motion for Summary Judgment (Dkt. 34 ) is GRANTED in PART and DENIED IN PART. On or before 3/17/16, the parties are to submit a propo sed Stipulation resolving the outstanding issue before the Court. If the parties are unable to reach agreement, Liberty may submit a brief no longer than 5 pages. Smith will have 7 days to respond with her brief of no longer than 5 pages. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SANDRA SMITH, aka
SANDRA MECHAM,

Case No. 4:14-cv-00495-CWD

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
LIBERTY LIFE ASSURANCE
COMPANY OF
BOSTON,
Defendant.

INTRODUCTION
Plaintiff Sandra Smith filed a complaint on October 29, 2014, against Liberty Life
Assurance Company of Boston (Liberty) pursuant to the Employee Retirement Income
Security Act of 1974 (ERISA) to recover benefits due and to enforce her rights under the
terms of a group disability income policy (the Policy). Pending before the Court are the
parties’ cross motions for summary judgment. Smith claims Liberty wrongfully withheld
benefits owed to her. Liberty claims it was exercising its contractual reimbursement
rights under the Policy.
The Court conducted a hearing on February 9, 2016, and both parties appeared to
present oral argument. After careful consideration of the parties’ briefs, applicable legal

MEMORANDUM DECISION AND ORDER - 1

authorities, and argument, the Court will grant the motion filed by Liberty and deny the
motion filed by Smith.
FACTS
On November 18, 2010, Smith was involved in a serious motor vehicle accident
resulting in traumatic brain injury rendering Smith disabled. Prior to the accident, Smith
worked as a loan officer employed by Wells Fargo Bank earning in excess of $80,000 per
year. However, she was unable to return to work because of cognitive difficulties
secondary to traumatic brain injury from the accident. At the time of the accident, Smith
was 39 years of age, and she was covered under the terms of a group disability income
policy issued by her employer. The Policy provided both short and long term disability
coverage. (Dkt. 28-1 at 3.) The short term plan was sponsored and self-insured by Wells
Fargo, although Liberty provided claims administrative services for Wells Fargo. Liberty
was the plan administrator, however, under the long term plan. Id.
The driver of the other vehicle in the accident with Smith was found at fault. The
third party had a “single limit” liability insurance policy of $100,000.00, which sum
included property damage and bodily injury. Smith’s property damage claim of
$37,449.03 was paid shortly after the accident, leaving $62,550.97 for Smith’s bodily
injury claim. The policy limit ($62,550.97) was accepted, and Smith’s attorney received
the funds on his client’s behalf on or about December 2, 2012. (Dkt. 27-2 at 8.) 1

1

The settlement check was made payable jointly to Plaintiff’s attorney and Plaintiff.

MEMORANDUM DECISION AND ORDER - 2

On December 28, 2012, Liberty claimed subrogation of the amount of $81,387.42,
comprised of $25,700.49 in short term disability benefits paid to Smith from May 13,
2011, through November 3, 2011, and $55,686.93 in long term disability benefits paid to
Smith from November 4, 2011, through December 28, 2012. Liberty requested
reimbursement of all disability benefit payments made by Liberty should Smith recover
from the responsible party in the accident, and Liberty claimed a lien against any monies
Smith received from any third party.
By that time, Smith had suffered $47,920.23 in past medical special damages, and
Smith’s attorney was owed $26,349.22, leaving insufficient funds to pay Smith’s medical
care providers, her attorney, and Liberty out of the $62,550.97 in settlement funds. (Dkt.
27-2 at 5.) On January 9, 2013, Smith requested that Liberty “waive [its] short term and
long term subrogation amounts.” (Dkt. 27-2 at 4). Liberty refused Smith’s offer, instead
offering on January 28, 2013, to “reduce [its] lien to accept [its] pro rata share” of the
settlement funds in the amount of $17,102.59. (Dkt. 27-2 at 15.) Liberty’s letter further
stated:
Please let this confirmation serve as a full & final settlement release of lien
upon receipt of payment of $17,102.59. This release pertains to and only to
Liberty Life Assurance’s subrogation provision for Short Term Disability
Benefits claim # 4044567 and Long Term Disability Benefits claim #
4142343. All other Short and/or Long Term Disability contract provisions
are still applicable.
(Dkt. 27-2 at 15-16; emphasis added.) On February 20, 2013, Smith tendered payment of
$17,102.59 to Liberty ($5,400.65 payable to Wells Fargo & Company and $11,701.94
payable to Liberty). (Dkt. 27-3 at 2.)

MEMORANDUM DECISION AND ORDER - 3

Smith was encouraged by Liberty to apply for Social Security Disability benefits. 2
In or about January of 2014, Smith received an award of benefits retroactive to October
2011; pursuant to the social security ruling, she received a lump sum award of past due
benefits in the amount of $45,348.67. (Dkt. 27-5 at 3.) The Social Security
Administration withheld $6,000.00 from her past due benefits to pay her attorney’s fees.
(Dkt. 27-3 at 9.) Smith therefore received a lump sum of $39,348.67. (Dkt. 27-5 at 4.)
Smith was notified also that she would receive monthly benefits from Social Security in
the amount of $1,549.40 for January of 2014, and $1,969.00 per month thereafter. (Dkt.
27-3 at 7.)
On December 16, 2013, Liberty had notified Smith that, under the terms of the
Policy, Liberty would reduce her disability benefits “by the amount of income [she]
received from other sources, including [Social Security Disability Benefits].” (Dkt. 27-6.)
Liberty explained that, because it paid disability benefits to Smith through December 3,
2013, it had advanced Smith the money Social Security would ultimately pay. (Dkt. 27-6
at 2.) Liberty requested repayment of the “overpayment” from her lump sum Social
Security benefit payment.
On February 10, 2014, Liberty notified Smith as to how it calculated the
overpayment of benefits, and explained the justification for the repayment demand. (Dkt.

2

Smith characterizes Liberty’s letters directing her to apply for benefits as “threatening.” Liberty
did indicate it would reduce Smith’s disability benefit by an “estimated Social Security Disability amount
effective December 16, 2011,” if she failed to apply for benefits. (Dkt. 27-5 at 9.) Whether the tone of the
letters may be characterized as threatening is not material for purposes of deciding the motions before the
Court.

MEMORANDUM DECISION AND ORDER - 4

27-6 at 5; 28-2 at 84.) 3 Liberty requested repayment of $45,348.47. On May 15, 2014,
Liberty again demanded payment totaling $45,348.47. (Dkt. 27-5 at 4.) Smith refused to
pay, asserting that Liberty’s prior release of lien constituted a full release of its
subrogation rights. (Dkt. 27-4 at 12; Dkt. 27-5 at 4; Dkt. 28-2 at 89.)
On June 2, 2014, Liberty notified Smith’s attorney that its request for
reimbursement, to be paid from Smith’s Social Security award, “is not a lien and in no
way relates to the prior 3rd party settlement due to her auto accident.” (Dkt. 27-4 at 2.)
Liberty’s letter explained it was seeking reimbursement pursuant to the other income
benefits provision of its policy with Smith.
Liberty reiterated its position via letter dated September 24, 2014, explaining that
the Subrogation and Reimbursement provision contained in Section 7, and the Other
Income Benefits provision contained in Section 4, are two separate policy provisions, and
that Liberty intended to exercise its right to withhold future benefits if repayment was not
received. (Dkt. 27-4 at 9.) In September of 2014, Liberty ceased paying Smith her
monthly disability payments in the amount of $2,343.61 for failure to pay the $45,348.47
demanded. (Dkt. 27-5 at 4.) Liberty explained it would credit the unpaid disability
payments toward the overpayment amount due until such time as Liberty was
reimbursed.
Liberty claimed its right to withhold payment of benefits under Section Four of the
Policy. First, the Policy defines “Other Income Benefits” as “[t]he amount of Disability
3

Docket 28-2 at 84 contains a summary chart of how Liberty calculated the reimbursement
amount, attached to this Memorandum Decision and Order as Appendix 1.

MEMORANDUM DECISION AND ORDER - 5

and/or Retirement benefits under the United States Social Security Act … or any other
similar plan or act, which …the Covered Person receives or is eligible to receive….”
Policy Section 4 (Dkt. 28-2 at 27.) The Policy explains that the amount of Monthly
Benefit is calculated by taking the calculated Monthly Benefit, and deducting Other
Income Benefits from that amount. (Dkt. 34-3 at 22.) If an overpayment is due to Liberty,
Section Four of the Policy states that the Minimum Monthly Benefit otherwise payable
“will be applied toward satisfying the overpayment.”
Next, the Policy explains that:
Liberty will reduce the Covered Person’s Disability or Partial disability
benefits by the amount of Other Income Benefits that we estimate are
payable to the covered Person and his dependents. The Covered Person’s
Disability benefit will not be reduced by the estimated amount of Other
Income Benefits if the Covered Person:
1.
provides satisfactory proof of application for Other Income Benefits;
[and]
2.
signs a reimbursement agreement under which, in part, the Covered
Person agrees to repay Liberty for any overpayment resulting from the
award or receipt of Other Income Benefits.
(Dkt. 28-2 at 29.)
Section Seven, the Subrogation and Reimbursement provision of the Policy, states:
When Liberty has paid benefits under this policy in an amount in excess of
$5,000 to a Covered Person, Liberty will be subrogated to all rights of
recovery that the covered Person has against any third party. Liberty may
require an assignment from the covered Person of his right to recover to the
extent of Liberty’s payment. Liberty’s subrogation rights under this
provision will be valid only if the Covered Person is fully compensated for
his loss.
(Dkt. 28-2 at 40.)

MEMORANDUM DECISION AND ORDER - 6

In addition to the Policy provisions, Liberty relied upon two ancillary agreements
Smith signed when crediting the benefits payments to the repayment amount owed. On
September 20, 2011, Smith signed a reimbursement agreement related to Section Seven
of the Policy and the claims Smith had against the tortfeasor, wherein Smith agreed to
“repay the Plan Sponsor for such benefits to the extent they are for losses for which
compensation is paid to the covered person by or on behalf of the person at fault; [and] to
allow the Plan Sponsor a lien on such compensation.” (Dkt. 28-2 at 48.) The agreement
further stated that, “when the Plan Sponsor has paid benefits to or on behalf of the injured
covered person, the Plan Sponsor will be subrogated to all rights of recovery that the
covered has against the person at fault. These subrogation rights will extend only to
recovery of the amount the Plan Sponsor has paid.”
Smith, on September 25, 2011, signed also a Social Security Reimbursement
Agreement, related to Section Four of the Policy, wherein she agreed that:
If disability benefits are approved I request that Liberty Life Assurance
Company of Boston (Liberty Life) pay me my benefit with no reduction for
estimated Social Security Disability benefits until Social Security makes a
decision. I understand that this may result in an overpayment of disability
benefits paid to me if Social Security subsequently awards benefits to me,
and I understand that I must repay this overpayment to Liberty Life. In
consideration of Liberty Life paying me a disability benefit with no
reduction for estimated Social Security benefits until Social Security makes
a decision, I agree to the following: … If Social Security awards benefits to
me, I agree that Liberty Life has a first lien on all such benefits to the extent
of any overpayment or debt, and I agree to hold all such Social Security
benefits in a trust for the benefit of Liberty Life until the amount of Liberty
Life’s overpayment has been repaid in full.
(Dkt. 28-2 at 55.)

MEMORANDUM DECISION AND ORDER - 7

ANALYSIS
1.

Summary Judgment Standard
The filing of cross-motions for summary judgment—where both parties essentially

assert that there are no issues of material fact—does not vitiate the court's responsibility
to determine whether disputed issues of material fact are present. Fair Housing Council
v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). Summary judgment cannot be
granted if a genuine issue as to any material fact exists. Id.
One of the principal purposes of the summary judgment “is to isolate and dispose
of factually unsupported claims....” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24
(1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by
which factually insufficient claims or defenses [can] be isolated and prevented from
going to trial with the attendant unwarranted consumption of public and private
resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986).
2.

ERISA Standard of Review
Smith brings her claim pursuant to ERISA’s civil enforcement provision. See 29

U.S.C. § 1132(a)(1)(B). Section 1132 provides that a “civil action may be brought ... by a
participant ... to recover benefits due to him under the terms of his plan [or] to enforce his
rights under the terms of the plan.” Id. “[A] denial of benefits challenged under §
1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives
MEMORANDUM DECISION AND ORDER - 8

the administrator ... discretionary authority to determine eligibility for benefits.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Here, under the terms of the Policy, Liberty possesses the authority to construe the
terms of the Policy and to determine benefit eligibility. 4 When a plan confers
discretionary authority on a plan administrator to construe the terms of a plan and to
determine benefit eligibility, the abuse of discretion standard applies. See Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The United States Court of Appeals
for the Ninth Circuit has held that an “apparent” conflict of interest exists whenever a
plan administrator is responsible for both funding and paying claims. McDaniel v.
Chevron Corp., 203 F.3d 1099, 1108 (9th Cir. 2000). Standing alone, an apparent conflict
does not affect the ultimate standard of review. McDaniel, 203 F.3d at 1108. It does,
however, require the Court to look further into the plan administrator’s dual role by
applying the “less deference” test. Id.
Under the “less deference” test, a plan participant must come forward with
“material, probative evidence, beyond the mere fact of the apparent conflict, tending to
show that the fiduciary’s self-interest caused a breach of the administrator’s fiduciary
obligations.” Id. (quoting Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322–23 (9th
Cir.1995)). Only if the plan participant satisfies that burden does the burden of proof shift
to the plan administrator to produce evidence that the apparent conflict of interest did not
affect the decision to deny benefits. Id. (citing Atwood, 45 F.3d at 1323 (stating that the
4

Section 7 of the Policy states that “Liberty shall possess the authority to construe the terms of
this policy and to determine benefit eligibility hereunder.” (Dkt. 34-3 at 38.)

MEMORANDUM DECISION AND ORDER - 9

plan administrator's decision is “presumptively void”)). If the burden shifts and the plan
administrator does not produce evidence that the apparent conflict of interest did not
affect the decision to deny benefits, the court must “review the decision de novo, without
deference to the administrators tainted decision.” Id. (quoting Atwood, 45 F.3d at 1323).
Otherwise, the Court reviews the plan administrator’s decision under the traditional abuse
of discretion standard.
Here, Smith has not come forward with any argument or evidence that would tend
to show the plan administrator’s self-interest caused a breach of the administrator’s
fiduciary obligations. Accordingly, the Court will assign the conflict of interest little
weight in its abuse of discretion analysis.
The Court may find Liberty abused its discretion if it (1) rendered a decision
without explanation, (2) construed provisions of the policy in a way that conflicts with
the plain language of the plan, or (3) relied on clearly erroneous findings of fact. Boyd v.
Bert Bell/Pete Rozelle NFL Players Retirement Plan, 410 F.3d 1173, 1178 (9th Cir.
2005) (quoting Bendixen v. Standard Ins. Co., 185 F.3d 939, 944 (9th Cir. 1999)). “A
finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing
[body] on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Id. (quoting Concrete Pipe and Products of California, Inc. v.
Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).
The Court must uphold the decision of an ERISA plan administrator “if it is based upon a
reasonable interpretation of the plan’s terms and was made in good faith.” Boyd, 410

MEMORANDUM DECISION AND ORDER - 10

F.3d at 1178 (quoting Estate of Shockley v. Alyeska Pipeline Serv. Co., 130 F.3d 403, 405
(9th Cir. 1997)).
3.

Application of the Abuse of Discretion Standard
Based upon the above authorities, the Court considers whether Liberty abused its

discretion when it determined that Smith was required to reimburse the plan sponsors for
overpayment of benefits relative to the social security benefits award she received
retroactive to October of 2011. In examining the Policy’s language, the Court applies
contract principles derived from state law, but is guided by the policies expressed in
ERISA and other federal labor laws. Richardson v. Pension Plan of Bethlehem Steel
Corp., 112 F.3d 982, 985 (9th Cir. 1997). The Ninth Circuit requires that terms in an
ERISA plan be interpreted “‘in an ordinary and popular sense as would a [person] of
average intelligence and experience.’” Id. (quoting Richardson v. Pension Plan of
Bethlehem Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997)). More specifically, the Ninth
Circuit directs the Court should “first look to explicit language of the agreement to
determine, if possible, the clear intent of the parties. The intended meaning of even the
most explicit language can, of course, only be understood in the light of the context that
gave rise to its inclusion.” Id. (quoting Armistead v. Vernitron Corp., 944 F.2d 1287,
1293 (6th Cir. 1991)).
Each provision in an agreement must be construed consistently with the entire
document such that no provision is rendered nugatory. Id. But, when a plan is ambiguous,
the Court must examine extrinsic evidence to determine the intent of the parties. Id. If,
after applying the normal principles of contractual construction, the insurance contract is
MEMORANDUM DECISION AND ORDER - 11

fairly susceptible of two different interpretations, the rule of construction requiring the
interpretation most favorable to the insured will be adopted. Blankenship v. Liberty Life
Assur. Co. of Boston, 486 F.3d 620, 625 (9th Cir. 2007). But, the rule requiring
interpretation most favorable to the insured in the event of ambiguous terms will apply
except where the plan: (1) grants the administrator discretion to construe its terms, (2) is
the result of a collective-bargaining agreement, or (3) is self-funded. Id. Here, because
the plan grants the administrator discretion to construe its terms, the rule does not apply
and the Court must be guided by whether Liberty abused its discretion. Id.
Smith contends Liberty is not entitled to receive any portion of her lump sum
social security award for past due benefits, because Liberty released its subrogation lien
on January 28, 2013. However, Smith confuses Liberty’s lien release pertaining to the
third party insurance proceeds with Liberty’s ability to reduce benefits from other income
sources under the “Other Income Benefits” provision. The Other Income Benefits
provision in Section Four of the Policy unambiguously requires that an employee’s
monthly long term disability benefits be reduced by the amount of other income sources,
which includes social security benefits the employee may receive. Liberty’s interest in
Smith’s income from other sources is so broad that Liberty can reduce monthly disability
payments simply by estimating the amount of other income benefits Liberty believes will
be payable to its insured, even if the insured employee is not actually receiving such
benefits. Only if the insured employee provides proof that she has applied for social
security disability benefits, signs a reimbursement agreement, and provides proof that all

MEMORANDUM DECISION AND ORDER - 12

appeals have been exhausted, will Liberty not reduce the monthly benefit payable to the
insured.
In conjunction with the Other Income Benefits provision, the Policy contains a
recovery provision, which indicates that if an overpayment is due to Liberty, the monthly
benefit otherwise payable will be applied toward satisfying the overpayment.
Additionally, Smith signed a Reimbursement Agreement to avoid reduction of her
monthly benefit by an estimate of Social Security disability payments. The agreement
states that, in the event Smith received a lump sum payment from the Social Security
Administration, Smith agreed Liberty had a first lien on all such benefits to the extent of
any overpayment, and Smith agreed to reimburse Liberty for any overpayment.
Liberty was therefore entitled to recover overpayment of any other benefits that
Smith might receive, and by signing the Reimbursement Agreement, Smith explicitly
agreed that, if she later received Social Security disability benefits, she would reimburse
the full amount of the overpayment to Liberty. See Ayers v. Life Ins. Co. of North Am.,
869 F.Supp.2d 1248, 1268 (D. Ore. 2012) (construing similar policy language and
reimbursement agreement). The unambiguous terms of the Policy establish that Liberty’s
interest in any overpaid benefits was entirely separate from any lien it claimed in
proceeds Smith received from settlement of claims Smith had against a tortfeasor (and
the tortfeasor’s insurer), as provided by Section Seven, a separate and distinct provision
of the Policy.
The January 28, 2013 letter from Liberty to Smith did not operate, by its terms, to
extinguish Liberty’s reimbursement rights under the Policy. Rather, the express terms of
MEMORANDUM DECISION AND ORDER - 13

the letter agreement, which Smith agreed to, indicated Liberty agreed to reduce its
subrogation lien in the third party insurance proceeds under Section Seven of the Policy.
Liberty expressly stated it did not waive any other short or long term subrogation interest,
and further, Liberty reserved its right to enforce “all other Short and/or Long Term
Disability contract provisions.” By the terms of the letter, Liberty did not agree to
relinquish its rights under the Other Income Benefits provision, the overpayment
provision, and the terms of the agreement Smith signed allowing Liberty to collect any
overpayment of benefits in return for Liberty refraining from deducting an estimated
monthly social security benefit from Smith’s monthly disability benefit.
While the result here may seem harsh to Smith, the Court cannot ignore the plain
language of the Policy, or the express terms of the limited release Liberty agreed to, so
that the effects may ameliorate Smith’s financial situation. The Policy was not intended
to provide Smith with a windfall in the event she collected past due social security
benefits. In light of the level of discretion afforded to Liberty under the Policy, and the
plain meaning of the policy language, the Court concludes Liberty’s release did not alter
or extinguish its ability to collect an overpayment pursuant to the Other Income Benefits
provision in the Policy. Accordingly, the Court finds that Liberty’s decision to withhold
the monthly benefit until the overpayment is satisfied is not an abuse of discretion.
Despite so holding, the Court cannot enter final judgment in this matter. In
addition to claiming benefits due, Smith’s complaint sought also clarification of her
rights under the Policy, which the Court concludes requires determining whether the

MEMORANDUM DECISION AND ORDER - 14

reimbursement amount Liberty claims it is owed is correct. However, neither motion
before the Court sought a determination of the reimbursement amount.
During the hearing before this Court on February 9, 2016, the Court inquired as to
Liberty’s method of calculating the $45,348.47 reimbursement amount it claimed Smith
owed from her lump sum social security benefit award. Liberty offered to provide the
Court with an explanation, which the Court determines is appropriate here to resolve the
outstanding claim contained in Smith’s complaint as to her right, if any, to retain some
portion of the $45,348.67 in past Social Security Disability benefits she was awarded.
Determination of that question depends upon Liberty’s calculations. If, as Liberty
claimed at the hearing it determined the reimbursement amount by calculating what it
paid Smith for the period October 1, 2011, through February 3, 2014, and subtracting
what it should have paid for that same period, Liberty’s math does not appear to compute.
The Court questioned also during the hearing why Liberty deducted $11,701.94, and not
$17,102.59, to reflect the entire subrogated amount.
CONCLUSION
For the reasons discussed, Liberty’s motion for summary judgment will be granted
in part and denied in part. The Court determines Liberty is entitled to a declaratory
judgment that it has the right to seek reimbursement of overpayment under the terms of
Section Four of the Policy. But, the Court cannot enter a take nothing judgment on
Smith’s claims in this action as Liberty requests. Smith’s motion, to the extent it
requested recovery of benefits due, will be denied. The Court is unable to enter final

MEMORANDUM DECISION AND ORDER - 15

judgment in this matter because, on the record before it, the Court cannot clarify Smith’s
right, if any, to retain a portion of the lump sum Social Security Benefit award.
The parties are therefore required to submit a stipulation resolving the remaining
issue, or alternatively, Liberty may submit a five page brief explaining in more detail how
Liberty arrived at the $45,348.47 reimbursement amount. Smith will have an equal
opportunity to respond. However, the parties are not to submit any further argument or
briefing on Liberty’s ability to enforce its right to reimbursement of other income
benefits under the Policy, as the Court has resolved that issue in Liberty’s favor.

MEMORANDUM DECISION AND ORDER - 16

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Motion for Summary Judgment (Dkt. 27) is DENIED.

2)

Defendant’s Motion for Summary Judgment (Dkt. 34) is GRANTED in
PART and DENIED IN PART.

3)

On or before March 17, 2016, the parties are to submit a proposed
Stipulation resolving the outstanding issue before the Court. If the parties
are unable to reach agreement, Liberty may submit a brief no longer than
five pages. Smith will have seven (7) days to respond with her brief of no
longer than five pages.
March 03, 2016

MEMORANDUM DECISION AND ORDER - 17