Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-01470-JJF Document 26 Filed 10/O3/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
SHARON MARMON-KACZOROWSKI :
: Civil Action No.: 04-1470
Plaintiff :
CONTINENTAL CASUALTY
COMPANY, :
Defendant.
PLAlNTIFF’S RESPONSE 1"N OPPOSITION TO
DEF EN DANT’S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff] Sharon Marmon—Kaczorowski, by and through the undersigned
counsel, and hereby requests that this Honorable Court deny Defendanfs Motion for Summary
Judgment, and in support of said motion states:
1. On or about May 19, 2005, Plaintiff filed an Amended Complaint with this Court
as a result of Defendant’s denial of Plaintiffs long term disability benefits pursuant to
Continental Casualty Company’s (hereinafter ‘°Continental”) Policy no. SR-83090156,
(hereinafter "the Policy”) issued to Plaintiff through her employer Computer Sciences `
Corporation.
2. Plaintiff is essentially seeking payment of her long term disability benelits under
the Policy in accordance with section 502(a) of ERISA which allows a participant in an ERISA
plan to bring a civil action to "recover benefits due to him/her under the terms of his/her plan, to
enforce his/her rights under the terms ofthe plan, or to clarify his/her rights to future benefits
under the terms ofthe plan. 29 §1 132(a)(l)(B). This is a result of Continental’s arbitrary
and capricious denial of disability benefits due to Plaintiff under the Policy.

Case 1 :04-cv-01470-JJF Document 26 Filed 10/O3/2005 Page 2 of 3
3. Continental thereafter, on July 28, 2005, died a Motion for Summary Judgment
and Memorandum in Support of Def`enda;nt’s Motion for Summary Judgement arguing that
Continental is entitled to summary judgement as Plaintiff did not qualify for benefits under the
Continental policy since, in Continental’s opinion, she did not satisfy the definition of
"disability” as provided by the policy.
4. There is a genuine issue of material fact as to whether the Defendant,
Continentafs decision to deny Plaintiff s benets due under the terms ofthe disability policy
was arbitrary, capriccios, not made in good faith, unsupported by substantiai evidence and
erroneous as a matter of law, in violation of ERISA.
5. Plaintiff s argument and authorities in support of said opposition are set forth
more fully in Plaintiffs Memorandum in Opposition to Defendant’s Motion for Summary
Judgment, which is filed contemporaneous and incorporated by reference herein.
WHEREFORB, Plaintiff; Sharon Marmon-Kaczorowski respectfully requests that this
Honorable Court enter an Order denying Defendanfs Motion for Summary Judgment.
SILVERMAN, Mcl)()NAL}) & FRIEDMAN
By: /s/Robert C. McDonald
Robert C. McDonald, Esquire
Bar I. D. No. 2340
1010 N. Bancroft Parkway, Suite 22
Wilmington, Delaware 19805
(302) 888-2900
Counsel for Piaintiff

Case 1 :04-cv-01470-JJF Document 26 Filed 10/O3/2005 Page 3 of 3
IN T HE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
SHARON MARMON—KACZOROWSKI :
: Civil Action No.: 04-1470
Plaintiff] :
v.
CONTINENTAL CASUALTY
COMPANY, :
Defendant.
CERTIFICATE OF SERVICE
I, Robert C. McDonald, hereby certify that a copy of Plaintiff s Response in Opposition
to Defendants’ Motion for Summary Judgment ans Plaintit? s Memorandum in Opposition to
Defendants’ Motion for Summary Judgment was served this 3’°* day of October, 2005, via United
States Mail, tirst class, postage prepaid and federal court electronic tiling upon:
Susan A. List, Esquire
Tybout, Redfern & Pell
300 Delaware Avenue, Suite 1100
P.O. Box 2092
Wilmington, DE 19899
SILVERMAN, IVRDONALI) & FRIEDMAN
By: /s/Robert C. McDonald
Robert C. McDonald, Esquire
Bar I. D. No. 2340
1010 N, Bancroft Parkway, Suite 22
Wilmington, Delaware 19805
(302) 888-2900
Counsel for Plaintiff