Free Answer to Complaint - District Court of California - California

Case 3:08-cv-02837-MMC

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RIMAC MARTIN, P.C. JOSEPH M. RIMAC - State Bar No. 72381 ANNA M. MARTIN - State Bar No. 154279 1051 Divisadero Street San Francisco, California 94115 Telephone (415) 561-8440 Facsimile (415) 561-8430 Attorneys for Defendants CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., LONG TERM DISABILITY PLAN; UNUM LIFE INSURANCE COMPANY OF AMERICA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

E-FILING
GLORIA LITTLES-ANDRADES, ) ) CASE NO. C 08-02837 EMC ) Plaintiff, ) DEFENDANTS' ANSWER TO ) PLAINTIFF'S COMPLAINT vs. ) ) CUSHMAN & WAKEFIELD OF CALIFORNIA, ) INC., LONG TERM DISABILITY PLAN; ) UNUM LIFE INSURANCE COMPANY OF ) AMERICA (Real Party in Interest), ) ) Defendants. ) ________________________________________ ) COME NOW Defendants CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., LONG TERM DISABILITY PLAN and UNUM LIFE INSURANCE COMPANY OF AMERICA ("UNUM") (herein collectively referred to as"defendants"), and in answer to Plaintiff's Complaint ("plaintiff's complaint"), respond, state, and aver as follows: 1. Answering paragraph 1, defendants admit that the plan at issue in this lawsuit is

governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Defendants further admit that this Court has subject matter jurisdiction. Save and except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 1 of plaintiff's complaint. -1DEFENDANTS' ANSW ER TO PLAINTIFF'S COM PLAINT CASE NO.

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2.

Answering paragraph 2, defendants admit that the plan is an employee benefit

plan under ERISA. Save and except as expressly admitted herein defendants deny each and every remaining allegation contained in paragraph 2 of plaintiff's complaint. 3. Answering paragraph 3, defendants admit that UNUM is the claims review

fiduciary. Defendants further admit that the plan is wholly insured by short and long term group disability policies issued by Unum. Save and except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 3 of plaintiff's complaint. 4. Answering paragraph 4, defendants admit that UNUM determined that plaintiff

was entitled to disability benefits under the plan at some of the time, but not all of the time raised in plaintiff's complaint. Save and except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 4 of plaintiff's complaint. 5. Answering paragraph 5, defendants admit that UNUM issued its initial decision

deny further benefits to plaintiff on or about October 29, 2002. Save and except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 5 of plaintiff's complaint. 6. Answering paragraph 6, defendants admit that UNUM issued its written decision

after appeal upholding its initial decision to deny further benefits on or about February 20, 2003. Save and except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 6 of plaintiff's complaint. 7. Answering paragraph 7, defendants deny each and every allegation contained in

paragraph 7 of plaintiff's complaint. 8. Answering paragraph 8, defendants state the plan speaks for itself. Save and

except as expressly admitted herein, defendants deny each and every remaining allegation contained in paragraph 8 of plaintiff's complaint. 9. Answering paragraph 9, defendants deny each and every allegation contained in

paragraph 9 of plaintiff's complaint. 10. Answering paragraph 1 of plaintiff's prayer for relief, defendants deny that

plaintiff is entitled to any further benefits, and deny that plaintiff has been damaged in the

-2DEFENDANTS' ANSW ER TO PLAINTIFF'S COM PLAINT CASE NO.

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amount alleged, in any amount, or at all, and further deny that plaintiff is entitled to any relief whatsoever. 11. Answering paragraph 2 of plaintiff's prayer for relief, defendants deny that

plaintiff is entitled to any award of attorney's fees and/or interest thereon, and further deny that plaintiff is entitled to any relief whatsoever. 12. Answering paragraph 3 of plaintiff's prayer for relief, defendants deny that

plaintiff is entitled to any relief whatsoever. WHEREFOR, defendants pray for judgment as set forth below.

AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE 1. Plaintiff's purported claim for relief fails to state facts sufficient to state a claim

upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 2. Plaintiff's recovery, if any, is limited by the terms, conditions, limitations,

exclusions and other provisions of the Plan. THIRD AFFIRMATIVE DEFENSE 3. Plaintiff's claims against defendant arise solely under ERISA. Therefore,

plaintiff's rights and remedies are limited solely to those afforded under ERISA. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands. FIFTH AFFIRMATIVE DEFENSE 5. Plaintiff has failed to mitigate her alleged damages, if any. SIXTH AFFIRMATIVE DEFENSE 6. Plaintiff's claims are barred, in whole or in part, to the extent that plaintiff has

failed to perform all of her obligations under the Plan at issue. SEVENTH AFFIRMATIVE DEFENSE 7. /// The decision on plaintiff's claim was neither arbitrary nor capricious.

-3DEFENDANTS' ANSW ER TO PLAINTIFF'S COM PLAINT CASE NO.

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EIGHTH AFFIRMATIVE DEFENSE No act or omission of defendant constitutes the proximate or legal cause of any of

plaintiff's damages, if any, because, amongst other things, the terms of the alleged contract of insurance did not allow for payment of the claimed benefits beyond those benefits already paid. NINTH AFFIRMATIVE DEFENSE Any alleged damage suffered by plaintiff was in no way caused by, or the result

of, any fault, act or omission by defendants, but was caused by circumstances, persons, and/or entities, including plaintiff, for which and/or whom defendants are not and may not be held responsible, and for which defendants cannot be held liable. TENTH AFFIRMATIVE DEFENSE Plaintiff's conduct bars, estops and/or constitutes a waiver of the claims asserted

in plaintiff's complaint. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's complaint fails to state facts sufficient to entitle plaintiff to an award of

attorneys' fees under ERISA. TWELFTH AFFIRMATIVE DEFENSE While denying any liability to plaintiff, there is no "vesting" of benefits under the

policy, and any claim for benefits based on an alleged continuing disability must be supported by proof of such continuing disability. Benefits cannot be awarded prospectively. THIRTEENTH AFFIRMATIVE DEFENSE UNUM Life Insurance Company of America is an improper defendant in that

ERISA permits suits to recover benefits only against the Plan as an entity. Everhart v. Allmerica, 275 F.3d 751 (9th Cir. 2001) and Ford v.MCI Communications Corp. Health and Welfare Plan, 399 F.3d 1076 (9th Cir. 2005). FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred in whole or in part by the contractual limitation

contained in the plan. ///

-4DEFENDANTS' ANSW ER TO PLAINTIFF'S COM PLAINT CASE NO.

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FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred in whole or in part by the contractual limitation

provided for by Insurance Code, Section 10350.11and included in the plan. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred in whole or in part by the applicable statute of

limitations, including but not limited to, California Code of Civil Procedure, Sections 337 & 339.

Defendants reserve the right to assert additional affirmative defenses should it become aware of additional defenses during the course of this litigation, as set forth in Federal Rules of Civil Procedure, Rule 8.

WHEREFOR, defendants pray for judgment as follows: 1 2. 3. That plaintiff take nothing by reason of her complaint; For defendants' attorneys' fees and costs of suit incurred herein; and, For such other and further relief as the Court deems just and proper. RIMAC MARTIN, P.C.

17 18 DATED: August 11, 2008 19 20 21 22 23 24 25 26 27 28 By: /s/ ANNA M. MARTIN ANNA M. MARTIN Attorneys for Defendants CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., LONG TERM DISABILITY PLAN; UNUM LIFE INSURANCE COMPANY OF AMERICA

-5DEFENDANTS' ANSW ER TO PLAINTIFF'S COM PLAINT CASE NO.

C 08-02837 EMC