Free Response - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Ann-Martha Andrews (012616) Phone: (602) 262-5707 Fax: (602) 734-3764 Email: [email protected] Thomas Klinkel ( 010955) Phone: (520) 629-4428 Fax: (520) 879-4712 Email: [email protected] Scott Bennett (022350) Phone: (602) 262-5338 Fax: (602) 734-3816 Email: [email protected] Attorneys for Defendant Hartford Life & Accident Insurance Company

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' RESPONSE TO PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

The defendants respond to the statement of facts that the plaintiff filed in support of his most recent motion for summary judgment (docket No. 58). 1. 2. The defendants agree with the assertions in paragraph 1. In response to paragraph 2, the defendants respectfully refer the Court to the

full text of the April 30, 2007 letter from Laurie Tubbs of Hartford to Mazet. (Supplement to the Administrative Record, docket No. 56, at CFsupp-00134-35) 3. The defendants deny the assertions in paragraph 3. Mazet has quoted the

summary plan description (SPD), not the Hartford policy (aka the plan document). And

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Mazet has not even quoted the SPD correctly. Mazet asserts that "Under the terms of the Plan, `Retirement benefits' are recognized as `deferred compensation.' " In fact, the SPD says that "Retirement benefits do not include payments from a . . . Non-qualified deferred compensation plan." (Emphasis added.) Mazet further asserts that, according to the SPD, " `deferred compensation . . . specifically include[es] `401(k) plan' benefits." In fact, the SPD mentions "Non-qualified deferred compensation plan[s]" and "401(k) plan[s]" as distinct types of plans. Finally, Mazet asserts that " `Retirement benefits' . . . are exempt from any offset against or reduction of LTD Plan benefit payments." Actually, the SPD and policy say just the opposite. The SPD states, for example, that "LTD benefits are reduced by . . . Retirement benefits from a retirement plan that is wholly or partially funded by employer contributions . . . ." The relevant provisions of the SPD are found in Exhibit 3 of the administrative record, docket No. 20, which the parties filed on March 9, 2005. The pages with the provisions quoted above are PLAN-00018-19. 4. The defendants deny the assertions in paragraph 4. For purposes of

calculating Mazet's Basic Rate of Monthly Income, the only relevant date is October 1, 1999, because the policy requires Hartford to consider his income as of the October 1 before he stopped work. And there is no evidence in the administrative record that Mazet "elected to use [deferred compensation] to fund his 401k retirement account." The record contains no evidence of what Mazet's deferred compensation included, or whether he could choose to receive it in his paycheck (or otherwise direct where it went). 5. The defendants deny the assertions in paragraph 5 for reasons given in

response to paragraph 4. 6. The defendants deny the assertions in paragraph 6. Neither the Hartford

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policy (aka the plan document) nor the SPD even mentions W-2 forms, much less requires Hartford to use them when calculating Mazet's LTD benefits. And in this case, Mazet never presented his W-2 forms to Hartford, either during the original claim or on remand. 7. The defendants deny the allegations in paragraph 7. The phrase

"Predisability Earnings" is not found on Mazet's W-2 wage statements. Neither is the figure "4,954.29." 8. In response to paragraph 8, the defendants admit that Halliburton informed

Hartford, during the claim process, that Mazet's annual pre-disability basic salary was $54,289, which translates to a basic monthly salary of $4,954.09. (Ex. 2 of the administrative record, docket No. 20, at CF-00682) The defendants deny the remaining assertions in paragraph 8, particularly the assertions that the information that Halliburton provided was "unsupported" and "non-verified." The salary information was provided by a benefit specialist at Halliburton. (Id.) 9. The defendants deny the assertions in paragraph 9. Mazet has quoted the

SPD, not the policy (plan document). But the defendants admit that the monthly LTD benefit under the Hartford policy, for qualifying participants, is 60% of their pre-disability earnings. 10. The defendants deny the assertions in paragraph 10. Mazet purports to quote

the SPD, not the policy (plan document). And he has quoted the SPD incorrectly. According to the SPD, a participant's monthly LTD benefit, and the premium price for the insurance, are based on the participant's "Monthly Basic Earnings." Monthly Basic Earnings are the participant's regular monthly pay as of the October 1 before his or her last day as an active employee. (See Exhibit 3 of the administrative record, docket No. 20, at PLAN-00016 ("Your LTD premiums are based on your Monthly Basic Earnings as of the October 1 before your last day as an active employee prior to your disability.") and PLAN00017 ("During the initial benefit period, the amount of disability income from all sources

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is 60 percent of your monthly basic earnings in effect on the October 1 prior to your last day as an active employee before becoming disabled . . . .")) The Hartford policy contains a materially identical provision. (See Exhibit 1 of the administrative record, docket No. 20, at POL-00025 ("If you become Disabled, your Monthly Rate of Basic Earnings will be the rate in effect on October 1 prior to your last day as an Active Employee before becoming Disabled.")) RESPECTFULLY SUBMITTED on August 13, 2007. LEWIS AND ROCA LLP By_s/ Scott M. Bennett________________ Ann-Martha Andrews Thomas Klinkel Scott M. Bennett Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on August 13, 2007, 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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