Free Motion for Summary Judgment - District Court of Arizona - Arizona

R ANDOLPH G . B ACHRACH
ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 (602) 852-9540
(AZ #12621 - CA #93278)

Attorney for Plaintiff

United States District Court
FOR THE DISTRICT OF ARIZONA

No.: CV 04 0493 PHX FJM DAVID L. MAZET, Plaintiff, vs. HALLIBURTON COMPANY LONGTERM DISABILITY PLAN; and, HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendants.
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STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT FOLLOWING ADMINISTRATIVE DECISION ON REMAND

Plaintiff submits the following facts in support of his Motion for Summary Judgment Following Administrative Decision on Remand: 1. Pursuant to this Court's Order on August 18, 2005, i.e., to "remand this case to

the Plan administrator solely to determine if Plaintiff's predisability wages were properly determined and if he was underpaid during the initial 24-month period," Defendant issued its "Administrative Decision on Remand," on April 30, 2007. (Exhibit 1, attached.) 2. Defendant's decision was to find that there was no underpayment of Mr.

Mazet's LTD claim; more specifically: Attorney Bachrach argues that your W2 Statements must be viewed as the best evidence of your actual pre-disability earnings; and he argues we failed to include your "deferred compensation" in our calculation of your Monthly Rate of Basic Earnings. Deferred compensation does not qualify as "Monthly Rate of Basic Earnings" because your deferred compensation is not your regular monthly pay from your employer. This argument has been reviewed in accordance with the definition of Monthly Rate of Basic Earnings and we have found
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RANDOLPH G. BACHRACH
ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 S (602) 852-9540

that "deferred compensation" is not considered when calculating your Monthly Rate of Basic Earnings. (Id.) 3. Under the terms of the Plan, employee-funded "Retirement benefits" are

recognized as "deferred compensation" (specifically including, "401k plan" benefits) and are exempt from any offset against or reduction of LTD Plan benefit payments. (Exhibit 2, pg. 106, attached.) 4. As reflected in employer-issued W-2 statements, Mr. Mazet's income in

relevant years prior to his date of disability included substantial amounts of "deferred compensation" which he elected to use to fund his 401k retirement account. (Exhibit 3, attached.) 5. (Id.) 6. The Plan and the Plan Administrator specifically require utilization of the None of Mr. Mazet's contributions to his 401k plan were paid by his employer.

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claimant's W-2 wage statement as the controlling document for purposes of determining the appropriate amount of LTD monthly benefit payments. (Exhibit 4, attached.) 7. According to Mr. Mazet's W-2 wage statement, his "Predisability Earnings"

were $4,954.29. (Id.) 8. Based on unsupported and non-verified information supplied by the employer

Hartford determined Mr. Mazet's "Monthly Income" to be $4,524.09. (Exhibit 5, attached.) 9. The Plan provides: "The LTD Plan replaces up to 60 percent of your

predisability income if you're disabled. . ." (Exhibit 6, pg. 102, attached.) 10. "Predisability Earnings" are defined in the Plan as: "Your monthly rate of basic

earnings in effect on the day before you became disabled. . ." (Id., pg. 103) ...

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DATED: July 12, 2007

RANDOLPH G. BACHRACH Attorney at Law

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By s/Randolph G. Bachrach Randolph G. Bachrach, Esq. 5103 E. Thomas Road Phoenix, Arizona 85018 Attorney for Plaintiff I hereby certify that on July 12, 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 to the following CM/ECF registrants:
Thomas Klinkel Scott Bennett LEWIS & ROCA, LLP 40 N. Central Ave. Phoenix, Arizona 85004-3329 Attorneys for Defendants

RANDOLPH G. BACHRACH

ATTORNEY AT LAW 5103 E. THOMAS ROAD PHOENIX, ARIZONA 85018 S (602) 852-9540

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s/Randolph G. Bachrach

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