Harvel v. Guardian Life Insurance Company of America

Filing 22

ORDER signed by Chief Judge William C Griesbach on 1/3/2019 Granting 17 Motion for Summary Judgment. The case is Dismissed. The Clerk is directed to enter judgment forthwith. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROY HARVEL,
Plaintiff,
v.

Case No. 18-C-597

GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA,
Defendant.

ORDER

Plaintiff Roy Harvel filed this action in Wisconsin state court asserting a breach of contract
claim against Defendant Guardian Life Insurance Company of America for its failure to pay Plaintiff
the benefits of an insurance policy pursuant to its policy coverage. Defendant removed the action
to this court, alleging Plaintiff’s claims are preempted by the Employee Retirement Income Security
Act of 1974 (ERISA). Defendant filed a motion for summary judgment on October 31, 2018.
Plaintiff did not file a response to the motion. On December 7, 2018, the court ordered Plaintiff to
show cause as to why he did not respond to the motion and advised that the action may be dismissed
with prejudice for failure to prosecute if he failed to file a timely response. To date, Plaintiff has
not responded to Defendant’s motion or the court’s order and has not requested an extension of time
to do so.
The local rules of this district provide that the failure to file a brief in opposition to a motion
is sufficient grounds to grant the motion. Civil L.R. 7(d) (E.D. Wis.). Plaintiff has failed to respond
to the motion or explain why he has been prevented from doing so. This alone is grounds to grant

the motion. For this reason, and also because it is clear Defendant is entitled to judgment as a
matter of law, Defendant’s motion for summary judgment will be granted.
Plaintiff maintains that Defendant improperly denied his application for long-term disability
benefits. Plaintiff ceased working after he underwent a total arthroplasty of the left hip on January
13, 2016, as a result of left hip pain and dysfunction that was diagnosed as avascular necrosis. He
filed a claim for long-term disability benefits on March 29, 2016. Defendant denied Plaintiff’s
claim, reasoning that Plaintiff’s allegedly disabling condition was excluded as a pre-existing
condition because he had been treated for those symptoms related to his diagnosis two years prior
to May 1, 2015, the date his coverage became effective. Defendant’s determination is consistent
with the terms of the policy, is well supported, and is not arbitrary and capricious. In short, the
motion for summary judgment (ECF No. 17) is GRANTED and the case is DISMISSED. The
Clerk is directed to enter judgment forthwith.
SO ORDERED this 3rd day of January, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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