Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00107-GMS-MPT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID LOWMAN, Plaintiff, v. CIGNA GROUP INSURANCE COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) C. A. No.

COMPLAINT 1. Plaintiff David Lowman ("Mr. Lowman") brings this action against Cigna

Group Insurance Company for violation of the Employment and Retirement Income Security Act of 1974, as amended, 29 U.S.C. §1001, et seq., ("ERISA"). Mr. Lowman was a participant in the plan, an ERISA welfare benefit plan, as administered by Metropolitan Life Insurance Company. This Complaint challenges the Defendant's

unlawful denial of Mr. Lowman's request for long-term disability benefits despite medical evidence demonstrating his qualification for said benefits. Mr. Lowman is filing this action to recover benefits due under a policy of insurance to enforce the present rights existing therein, to declare his rights under the terms of the policy, and to recover costs and attorney's fees as provided by ERISA. Jurisdiction 2. This Court has personal and subject matter jurisdiction over this case

pursuant to 29 U.S.C. §1132(e) and (f) because of Defendant's breach of its ERISA obligation to him.

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3.

Plaintiff David Lowman is a resident the State of Delaware, residing in

Smyrna, Delaware. 4. Plaintiff Lowman, at all times pertinent, was a participant within the

meaning of 29 U.S.C. §1002(2)(7) in the group long-term disability ("LTD") plan that was issued to Dick Pacific Construction Company, Ltd., Plaintiff's employer. 5. Plaintiff Lowman has standing to bring this action under ERISA, 29

U.S.C. §1132(a). 6. Defendant Cigna Group Insurance Company has its corporate

headquarters located at P.O. Box 22225, Pittsburgh, PA 15222-0325. 7. Defendant is a for-profit corporation and does business in the State of

Delaware, deriving revenue from its business it conducts in Delaware. 8. The plan under which the Plaintiff is suing is a group disability plan

maintained by Dick Pacific Construction Company, Ltd., ("the Company") and fully insured by a contract of insurance issued by Cigna Group Insurance Company. 9. Up until 2005, Plaintiff was working full-time for the Company. His last

employment was in Tucson, AZ. He has not worked since that time. 10. 11. 12. The Plan's covered class includes Plaintiff. As a full-time employee, Mr. Lowman became insured under the Plan. The policy provides for the Plaintiff LTD benefits to cover the employees

who meet all contractual provisions, including the definition of disability. 13. The terms of the group policy defining disability are: "unable to perform

the material duties of his or her regular occupation". There is a 90-day elimination

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period. The disability benefits are 66.67% of the employee's monthly covered earnings rounded to the nearest dollar of the maximum disability benefit. 14. Plaintiff last worked for the Company on or about February 7, 2005, and

has been unable to return to his former job since that time. 15. 16. 17. 18. 19. On January 16, 2006, Plaintiff requested long-term disability benefits. That application was denied on May 4, 2006. Plaintiff filed an appeal to his denial of benefits on August 11, 2006. The appeal was denied on October 25, 2006. The primary grounds of denying the benefits was that Mr. Lowman's job

is of a sedentary nature and that he should be able to do at least light work. 20. Mr. Lowman submitted an affidavit, which is part of the record, dated July

24, 2006. In his affidavit of July 24, 2006, he states that he was a working superintendent and some of his responsibilities included lifting equipment weighing more than 50 pounds. He said that part of his job responsibilities included driving a forklift and loading/unloading equipment, setting door and window frames, and loading/unloading door frames. 21. The Defendant did not contact any of Plaintiff's immediate supervisors to

confirm Plaintiff's affidavit, but instead contacted Mr. David Tu of Human Relations, who had no actual knowledge of what Plaintiff was required to do on-site. Mr. Tu, in his email, said that Plaintiff's job did not require any physical work. 22. On November 8, 2006, Plaintiff submitted an email to the Defendant from Mr. Kemp was the

Frank Kemp and a second email dated November 15, 2006.

superintendent employed by the Company and was the immediate supervisor of Plaintiff.

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Mr. Kemp stated that Plaintiff's position consisted of both physical and supervisory responsibilities. Mr. Kemp confirmed that Plaintiff's affidavit was accurate. 23. 24. 25. In December 2006, Defendant turned down Plaintiff's final appeal. The Defendant funds the plan that it administers. As a result of the Defendant's improper denial of Plaintiff's disability

benefits, he has not received any disability payments. 26. As a further result of Defendant's denial of his disability benefits, Plaintiff

has been required to pay for COBRA medical insurance benefits at his own expense at the rate of approximately $1,000.00 per month. 27. The Defendant has improperly denied Plaintiff his benefits in the

following manner: a) It failed to acknowledge the findings of the treating physician who indicated that he was unable to work; b) It failed to take into consideration the fact that Plaintiff was awarded Social Security disability benefits; c) It improperly ignored the affidavit of Plaintiff that indicated that 50% of his work was heavy-duty work and rejected it without reason; d) It failed to acknowledge the email statement of Plaintiff's immediate supervisor on the site who confirmed that Plaintiff's job was 50% physical and 50% supervisory; e) It selectively and improperly relied upon the email of Mr. Tu from Human Relations who has never been at the site and who had no knowledge of Plaintiff's work;

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f) It failed to take into account the medical records of the treating physicians; g) It failed to inquire of Frank Kemp or Devon Bryan, two superintendents who had day-to-day contact with Plaintiff; h) It evaluated the medical and vocational evidence in a biased manner. 28. The Defendant's denial of long-term disability benefits is a violation of 29

U.S.C. §1132(a)(1). WHEREFORE, Plaintiff David Lowman prays for the following relief: a) Declaratory relief that he is entitled to disability benefits, past and present, plus interest; b) Reasonable attorney fees and costs pursuant to 29 U.S.C. §1132(a); c) Reimbursement for all COBRA expenses; d) Alternatively, a remand requiring Cigna to consider all of the evidence and how it impacts upon Plaintiff's ability to work; and e) Any other relief that this Honorable Court deems appropriate.

GRADY & HAMPTON, LLC

/S/ John S. Grady John S. Grady, Esquire (009) 6 North Bradford Street Dover DE 19904 (302) 678-1265 Attorneys for Plaintiff DATED: February 15, 2007

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JS 44 (Rev. 11/04)

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CIVIL COVER SHEET
DEFENDANTS

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a)

PLAINTIFFS

DAVID LOWMAN (b) County of Residence of First Listed Plaintiff Kent
(EXCEPT IN U.S. PLAINTIFF CASES)

CIGNA GROUP INSURANCE COMPANY
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

Allegheny

(c)

Attorney's (Firm Name, Address, and Telephone Number)

Grady & Hampton, LLC 6 N. Bradford Street Dover, DE 19904 (302) 678-1265 II. BASIS OF JURISDICTION
1
U.S. Government Plaintiff U.S. Government Defendant

Attorneys (If Known)

(Place an "X" in One Box Only) (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES
(For Diversity Cases Only) PTF DEF 1 Citizen of This State Citizen of Another State Citizen or Subject of a Foreign Country

3 Federal Question
4 Diversity

1 2 3

(Place an "X" in One Box for Plaintiff and One Box for Defendant) PTF DEF 4 4 Incorporated or Principal Place of Business In This State

2

2 3

(Indicate Citizenship of Parties in Item III)

Incorporated and Principal Place of Business In Another State Foreign Nation

5 6

5 6

IV. NATURE OF SUIT
CONTRACT

(Place an "X" in One Box Only) TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment

PERSONAL INJURY PERSONAL INJURY 310 Airplane 362 Personal Injury 315 Airplane Product Med. Malpractice 365 Personal Injury Liability 320 Assault, Libel & Product Liability 368 Asbestos Personal & Enforcement of Judgment Slander 151 Medicare Act 330 Federal Employers' Injury Product 152 Recovery of Defaulted Liability Liability 340 Marine PERSONAL PROPERTY Student Loans 345 Marine Product 370 Other Fraud (Excl. Veterans) 153 Recovery of Overpayment 371 Truth in Lending Liability 350 Motor Vehicle 380 Other Personal of Veteran's Benefits 160 Stockholders' Suits 355 Motor Vehicle Property Damage 190 Other Contract 385 Property Damage Product Liability 195 Contract Product Liability 360 Other Personal Product Liability 196 Franchise Injury REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 210 Land Condemnation 441 Voting 510 Motions to Vacate 220 Foreclosure 442 Employment Sentence 230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: 240 Torts to Land 530 General Accommodations 245 Tort Product Liability 444 Welfare 535 Death Penalty 290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 550 Civil Rights Employment 446 Amer. w/Disabilities - 555 Prison Condition Other 440 Other Civil Rights

610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157 PROPERTY RIGHTS

of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

820 Copyrights 830 Patent 840 Trademark

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ 875 Customer Challenge 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information 900Appeal of Fee Determination
Under Equal Access to Justice 950 Constitutionality of State Statutes Act 12 USC 3410 Exchange Corrupt Organizations

861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) 870 Taxes (U.S. Plaintiff 871 IRS-Third Party
26 USC 7609 or Defendant) FEDERAL TAX SUITS

SOCIAL SECURITY

V. ORIGIN 1 Original

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(Place an "X" in One Box Only)

Proceeding

VI. CAUSE OF ACTION

Transferred from 6 Removed from Remanded from Reinstated or another district Multidistrict State Court Appellate Court Reopened (specify) Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 29 U.S.C. Section 1132

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4

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Appeal to District Judge from Magistrate Judgment

Brief description of cause:

Appealing denial of disability benefits
DEMAND $

VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23
(See instructions):

CHECK YES only if demanded in complaint: JURY DEMAND: Yes No DOCKET NUMBER

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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