Free Motion for Leave to File - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Stephen M. Bressler, State Bar No. 09032 Direct Dial: (602) 262-5376 Direct Fax: (602) 734-3742 E Mail: [email protected] Ricki L. Cohen, State Bar No. 024884 Direct Dial: (602) 262-5759 Direct Fax: 602 748-2502 E Mail: [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) Halliburton Company Long-Term Disability ) ) Plan; and, Hartford Life & Accident ) Insurance Company, ) ) Defendants. ) ) David L. Mazet, No. CV 04-00493 PHX-FJM DEFENDANTS' REQUEST FOR LEAVE TO FILE SUR-REPLY

Defendants request leave of this Court to file a sur-reply in opposition to plaintiff's Motion for Remand. The purpose of the sur-reply will be to address an issue on which Plaintiff focused for the first time in his reply. Plaintiff's Motion for Remand argued that Hartford failed to index his predisability earnings for the purpose of calculating back benefits and consequently underpaid his back benefits. In response, Defendants pointed out that the Plan does not call for indexing the pre-disability earnings when calculating the monthly disability benefit. Then, in his reply, Plaintiff, by his silence, apparently conceded that Defendants had properly and accurately calculated his back benefits. (Indeed, Defendants voluntarily paid interest too.) However, Plaintiff proceeded to argue that Defendants improperly analyzed whether he met the Plan's definition of total disability during the "any occupation" period. In doing so, Plaintiff made a number of accusations that are simply untrue. Defendants can provide this Court with evidence from the administrative record
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(claim file) that will demonstrate that following the Court's February 5, 2008 order1, it addressed Plaintiff's entitlement to benefits during the "any occupation" period. To do so, it indexed his pre-disability earnings. It then updated its employability analysis. Defendants can explain how they arrived at the 104% figure about which Plaintiff complains. And finally, Defendants can show that regardless of whose calculations the Court adopts (Plaintiff's 95% or Defendants' 104%), his pre-disability earnings far exceed the 60% maximum to meet the Plan's definition of total disability. Defendants have attached a proposed sur-reply, along with a proposed order allowing its filing. RESPECTFULLY SUBMITTED this 25th day of July, 2008. LEWIS AND ROCA LLP

By s/Ricki L. Cohen Stephen M. Bressler Ricki L. Cohen Attorneys for Defendants

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CERTIFICATE OF SERVICE I certify that on July 25, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing of the following CM/ECF registrants: Randolph G. Bachrach, Esq. Law Offices of Randolph G. Bachrach 5103 East Thomas Road Phoenix, Arizona 85018 Attorneys for Plaintiff

s/Michelle T. Gallegos

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