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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Mary O'Dowd,

) ) Plaintiff, ) ) vs. ) ) ) John Alden Health Insurance Company;) Fortis Health; Fortis, Inc.; et al., ) ) Defendants. ) )

No. CIV 03-2383-PHX-MHM ORDER

Plaintiff has asserted a claim for wrongful denial of disability benefits under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(b). Defendant is John Alden Health Insurance Company.1 Defendant has filed a motion for summary judgment and memorandum of authority, (Doc. 44) and a separate statement of facts (Doc. 45). Plaintiff has filed a cross-motion for summary judgment and memorandum of authority (Doc. 46), supported by a separate statement of facts. (Doc. 47). The parties have filed their respective responses and replies on summary judgment. (Doc. 48, 49 & 60). This Court's jurisdiction has been invoked based on 29 U.S.C § 1332(c)(1) and 28 U.S.C. § 1331. The Court heard oral argument on the parties' cross-motions for summary judgment on April 18, 2005.

The Court has noted in a previous Order (Doc. 27) that Defendant John Alden asserted in its Amended Answer that Defendant Fortis, Inc. is not a proper party to this lawsuit. The Court additionally notes that Defendant John Alden has been referred to in the pleadings as "John Alden Life Insurance Company" and "John Alden Health Insurance Company."
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Plaintiff has filed a motion to strike Exhibit 4 to Plaintiff's reply, stating that this document was meant to be filed under seal. (Doc. 61). Plaintiff's motion to strike is granted. I. Background Facts. Plaintiff, who is 53 years of age, became an insured of Defendant insurance company on July 1, 1999 through her employer's group health insurance policy. Defendant acts as both the insurer/payor and administrator of Plaintiff's group plan. Plaintiff underwent neck surgery in March 2000 which resulted in nerve damage and rendered her unable to swallow and to speak normally. As a result of this injury, Plaintiff began receiving liquid food or formula known as "Jevity", a canned nutritional formula, hydration and medication through a gastrointestinal feeding tube. In or about April 2000, Plaintiff's surgeon, Volker Sonntag, M.D., provided Defendant with a "Certificate of Medical Necessity" relevant to Plaintiff's treatment plan that included Jevity and its infusion at home. In May 2000, Fredrick Kenny, M.D., Plaintiff's gastroenterologist, established and prescribed a written home healthcare treatment plan that included Jevity, the feeding tube equipment and supplies, all of which were provided by a home health care company. Plaintiff contends that in her case, Jevity is not a dietary supplement but her entire diet. Commencing in April 2000, Defendant treated the formula as a specialized nutritional food and paid for the formula, equipment and supplies as a covered benefit under the plan. In September and October 2000, Defendant ceased paying for the nutritional formula because it was not a covered benefit, although Defendant did not cite any policy provision in support of this determination. Plaintiff filed an appeal and referred Defendant to various policy provisions that she believed supported coverage. In November 2000, Defendant reversed its position and notified Plaintiff that her Jevity and feeding tube supplies would be "covered in the future given [Plaintiff's] situation." On April 15, 2003, Defendant notified Plaintiff that the nutritional formula (Enteral Feeding Formula) was no longer a covered benefit and that Defendant would continue -2Case 2:03-cv-02383-MHM Document 65 Filed 09/22/2005 Page 2 of 14

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coverage for only sixty (60) more days. Defendant did not cite any policy provision or exclusion in support of its decision. Plaintiff through counsel appealed the decision pursuant to Defendant's internal appeals process. In a letter dated May 9, 2003, Defendant denied Plaintiff's appeal, citing the following policy provisions as the basis for the conclusion that the nutritional formula was not a covered benefit: SECTION VII: OUTPATIENT PRESCRIPTION DRUG BENEFITS: Charges not covered

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Covered Outpatient Prescription Drug Charges do not include any charges: 7. For over-the-counter ("OTC") drugs not requiring a prescription (other than injectable insulin): and for drugs that We determine have an over-thecounter equivalent or contain the same active ingredient(s) as over-the-counter medication. For dietary supplements, vitamins and vitamin prescriptions (other than legend prenatal vitamins prescribed for pregnancy).

12.

(Plaintiff's Statement of Facts ("PSOF"), Exhibit 14). The letter further explained that, based on the above, Plaintiff's "coverage is limited to drugs/products which require a prescription and are dispensed by a licensed pharmacist. Jevity, which is the enteral formula [Plaintiff] is receiving, is an over-the-counter product and does not require a prescription for its purchase." (id.). Meanwhile, on or about May 19, 2003, Defendant sought an internal (in-house) medical referral on whether the nutritional formula was covered under the policy: REASON FOR REFERRAL: Based on the Certificate of Insurance, and the State mandate, is enteral formula covered based on the patient['s] diagnosis and condition [?] It appears the reason for the PEG [feeding] tube was due to nerve damage that controlled her swallowing and speech during a surgery on 032700. Would this be an inherited Metabolic Disorder? If not would it be covered based on the Certificate? (Defendant's Statement of Facts ("DSOF"), ¶ 21). -3Filed 09/22/2005 Page 3 of 14

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The mandate mentioned in the above "Referral" refers to A.R.S. §§ 20-1342(F)-(J) and 20-1402(F)-(J) which provide that a group health insurer providing a prescription drug benefit must provide coverage for specialized nutritional foods associated with inherited metabolic disorders. According to Defendant, "inherited metabolic disorders" refer to disorders that prevent a person's body from absorbing nutrients from regular food.2 This statutory mandate became effective April 18, 2000, based on an "Arizona Compliance Bulletin" contained in the administrative record. Plaintiff filed a written grievance (Level 2) with Defendant on May 21, 2003. Plaintiff supported her grievance with the declaration from Dr. Kenny, her treating gastroenterologist, stating that the nutritional formula was "medically necessary" as a result of her injuries and that its withdrawal could result in Plaintiff's hospitalization. Plaintiff requested expedited consideration of her appeal. In the interim, Dr. Dachelet, Defendant's medical doctor, responded to the "Referral" mentioned above by issuing an opinion that "Arizona['s] mandate for enteral formula does not apply as this is not treatment on an inherited disorder." Doctor Dachelet further stated that, although the plan covers "special dietary formulas," Plaintiff in "this case is receiving liquid replacement of a regular diet (not special dietary formula) which is available over-the-counter or could be blenderized regular food." On June 11, 2003, Plaintiff received written notice that Defendant had denied her Level 2 appeal. Defendant again cited the policy provision which excludes over-the-counter drug charges and dietary supplements. In a letter dated June 13, 2003, Plaintiff through counsel requested a Level 3 "Expedited, External, Independent Review" by the Arizona Department of Insurance ("ADOI"). Plaintiff's request was granted and the ADOI assigned the case to an "independent
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Pursuant to A.R.S. § 20-1342(I)(1)(a), "inherited metabolic disorder" means "a disease caused by an inherited abnormality of body chemistry and includes a disease under the new born screening program prescribed in [A.R.S.] § 36-694." -4Case 2:03-cv-02383-MHM Document 65 Filed 09/22/2005 Page 4 of 14

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review organization, Permedion." Permedion assigned the matter to a board certified medical doctor (internist) in private practice for review. Plaintiff contends that this "independent" reviewing doctor was not trained in insurance law and never medically examined her. A letter dated July 14, 2003 from the ADOI set forth the opinion of the unidentified reviewing physician who concluded that the nutritional formula was "blenderized food" and not a covered benefit under the policy. The opinion of the reviewing physician included the following in relevant part: ... the nutritional content and value of the Jevity products is the same as would be found in blenderized regular foods -- and the use of these regular foods could be easily substituted with the same nutritional content to the patient. ... It is medically appropriate and reasonable that this patient use her regular food, as a blenderized formula, to meet the prescribed enteral nutritional needs. This patient, like all patients, needs a certain nutritional input. If this patient did not have the current medical condition with an inability to swallow, she would purchase her own foods and not request insurance coverage for the purchase of these foods. The food that is consumed by this patient is not medication, but is regular nutrition. Just as regular foods are not covered benefits, this blenderized food, as prepared by Jevity, is not a covered benefit either. ***

16 17 18 19 20 (DSOF, ¶ 28, Exhibit 5). The Arizona DOI adopted the reviewing physician's opinion and 21 declared that Defendant "is not directed to provide benefits for the nutritional replacement at 22 issue." (DSOF, ¶ 30, Exhibit 5). With the issuance of this letter from the ADOI, Plaintiff 23 exhausted the administrative review process. 24 Plaintiff's nutritional formula as paid for by Defendant as a covered plan benefit was 25 depleted on June 13, 2003. Since that date, Defendant has refused coverage for nutritional 26 27 28
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There is no contractual basis on which to hold the health insurance company liable for the cost of the enteral foods for this patient. Foods and non-prescription nutrition are not a covered benefit for any insurance company but is the financial responsibility of the individual patient. Therefore, it is the recommendation of this reviewer that the denial for the use of Jevity nutritional supplement be upheld.

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formula or feeding tube supplies. Plaintiff estimates that the monthly cost for the nutritional formula and supplies is $3,000.00. Defendant has cited to certain provisions of the plan as indicating that the nutritional formula and supplies are not covered benefits. According to Defendant, the plan states that general medical charges are not covered for "any services, treatment or supplies that are ... not Medically Necessary for the treatment of an injury or illness which is being treated." (DSOF, ¶ 34, Policy at p. 30 [Bates no. Policy 00035]). Necessary/Medical Necessity"charge as follows: A service or supply that We determine, at Our discretion, to be: 1. necessary for the symptoms and diagnosis or treatment of the illness or injury; 2. provided for the diagnosis, or the direct care and treatment, of the illness or injury; 3. in accordance with generally accepted medical practice; 4. not in excess of that level of care that is needed to provide safe, adequate and appropriate diagnosis or medical treatment; 5. not for convenience purposes (for example, the use of a brace to enable skiing or playing basketball); 6. the most appropriate level of medical care the Insured Person needs; 7. furnished within the framework of generally accepted methods of medical management currently used in the United States; 8. not Experimental or Investigational as defined in this Certificate; and 9. not for Maintenance Care as defined in this Certificate. The plan describes a "Medically

22 23 24 (Policy at p. 30 [Bates no. Policy 00035]). 25 "Covered Medical Charges" are defined as "Medically Necessary charges which meet 26 all provisions of this Certificate and the Group Policy and are, therefore, eligible for benefits 27 28
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The fact that a Physician prescribes, orders, recommends or approves the care, the level of care or the length of time care is to be received, does not make the services Medically Necessary.

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under this Certificate." (DSOF, ¶ 36, Policy at p. 25 [Bates no. Policy 00030]). "Maintenance Care" is "[c]are that is provided solely to keep the patient's condition at the level it has been restored." (Policy at p. 30 [Bates no. Policy 00035]). According to Defendant, based on the July 14, 2003 letter from ADOI, the nutritional formula at issue is the same as "blenderized regular foods" and is not a "medical necessity." (DSOF, ¶¶ 37-38). Defendant also cites to the policy definition of "Home Health Care" as referring to "services"; the plan covers "Provider and Facility Charges" for "Home Health Care services." (DSOF, ¶ 40, Policy at pp. 29 & 38 [Bates no. Policy 00034 & 00043]). The policy defines "Home Health Care" as care without which the insured would require "hospitalization." (DSOF, ¶ 41, Policy at p. 29 [Bates no. Policy 00034]). Defendant contends that the nutritional formula is not a "service" but is a supply, and that eating is not preventative care. (DSOF, ¶¶ 39 & 42). II. Standard of Review (A) The summary judgment standard. A motion for summary judgment may be granted only if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e). See also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986). (B) The reviewing standard under ERISA.

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The district court reviews denial of ERISA plan benefits "'under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,' in which case the administrator's decisions are reviewed for abuse of discretion." Patterson v. Hughes Aircraft Co., 11 F.3d 948, 949 (9th Cir. 1993)(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948 (1989)). Defendant contends that the applicable standard of review is abuse of discretion. Defendant argues that the plan expressly grants it discretion to review and determine coverage and benefits based on the following provision: We have discretion to construe and interpret the terms and provisions of the Policy and Certificate, to make determinations regarding issues which relate to eligibility for benefits, to decide disputes which may arise relative to an Insured's rights and to decide questions of Plan interpretation and those of fact relating to the Policy and Certificate and the payment of claims. (DSOF, ¶ 32, citing Policy at p. 63 [Bates Policy 00068]).

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In Sandy v. Reliance Standard Life Ins.Co., 222 F.3d 1202, 1206 (9th Cir. 2000), the Ninth Circuit required that a plan's language unambiguously grant discretionary authority to

16 the plan administrator. The Court of Appeals recognized that "unless plan documents 17 unambiguously say in sum or substance that the Plan Administrator or fiduciary has authority, 18 power or discretion to determine eligibility or to construe the terms of the Plan, the standard 19 of review will be de novo." Id., at 1207. The Court concludes that the above policy language 20 confers discretionary authority on Defendant to construe the terms and provisions of the 21 policy and to determine benefit payments. 22 Plaintiff contends that even if Defendant has the discretion to grant or deny claims for 23 benefits, it was a conflicted fiduciary because, inter alia, it also was the payor. A conflicted 24 fiduciary with its self-interest tainting the decision requires the Court to apply a de novo 25 26 However, "[t]hough the claimant obviously has a financial interest in getting the money, while 27 28
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standard of review. Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1323 (9th Cir. 1995).

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the plan has a financial interest in keeping it, that alone cannot establish a conflict of interest in the administrator...." Jordan v. Northrop Grumman Corp. Welfare Benefit Plan , 370 F.3d 869, 876 (9th Cir. 2004). In the Ninth Circuit, "the abuse of discretion standard can be heightened only by a "serious" conflict of interest. Id., 370 F.3d at 875. Plaintiff must come forward with material, probative evidence, beyond the mere fact of an apparent conflict, tending to show that the fiduciary's self-interest caused a breach of the administrator's fiduciary obligation to the beneficiary. Alford v. DCH Foundation Group Long-Term Disability Plan, 311 F.3d 955, 957 (9th Cir. 2002). In this case, Plaintiff has advanced additional reasons in support of her conflict-ofinterest claim. Plaintiff contends that Defendant failed to provide sufficient notice of its denial of benefits in September and October 2000; that Defendant continued to pay benefits for approximately three years and then abruptly decided to terminate benefits in 2003; and that Defendant has provided inconsistent reasons for denying coverage not only in September and October 2000 but also in 2003 and now in this lawsuit. Plaintiff also contends that Defendant has assumed an adversary position. Alternatively, Plaintiff requests permission to pursue discovery on the alleged conflict-of-interest if the Court determines that the record is inadequate on the issue. Defendant has responded that it simply made a mistake when it initially extended benefits in 2000, and then continued paying benefits until mid-2003, citing its misunderstanding of the statutory mandate in Arizona regarding coverage for food formulas associated with inherited metabolic disorders. Defendant specifically states that "John Alden initially paid for Jevity, because it labored under the false understanding that the formula was a state-mandated covered benefit." (Doc. 48, p. 2). The Court is concerned with the fact that Defendant continued paying benefits for the nutritional formula and supplies for three years and now cites, as the basis for its "mistake", the "statutory mandate" and the "Arizona Compliance Bulletin" dated June 22, 2000. The June 22, 2000 "Arizona Compliance Bulletin" concerns food formulas associated with -9Case 2:03-cv-02383-MHM Document 65 Filed 09/22/2005 Page 9 of 14

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inherited metabolic disorders. The cited statutory mandate and the 2000 "Arizona Compliance Bulletin" were in existence within the same time period that Defendant was paying for Plaintiff's nutritional formula and supplies as a covered benefit under the policy. Moreover, Defendant notified Plaintiff in September and October 2000 that coverage was not available, without providing any reason for non-coverage, and then reversed its position in November 2000, informing Plaintiff that the formula and supplies would be "covered in the future given [Plaintiff's] situation." It appears to the Court that Defendant's "scrutiny" of Plaintiff's claim would have occurred at the time of Defendant's November 2000 decision to continue coverage, not more than two years later. Defendant reversed its position in April 2003 when it notified Plaintiff that coverage was not provided. It was not until May and June 2003 that Defendant notified Plaintiff that coverage was not provided based on the policy's provisions relevant to exclusions for outpatient over-the-counter drugs and dietary supplements. Defendant did not cite as the basis for its non-coverage decision its confusion over whether Plaintiff suffered from an "inherited metabolic disorder." The Court concludes that Defendant's inconsistent actions of providing benefits, and then denying them, and the various reasons for denial, constitute material, probative evidence of a conflict of interest and that this conflict as plan administrator and insurer affected Defendant's benefits decision. The administrative record demonstrates no change in Plaintiff's condition except that it appears that Plaintiff's need for the nutritional formula and supplies may not be temporary. No new information came to light informing Defendant that Plaintiff did not suffer from an "inherited metabolic disorder." Moreover, the existence of an "inherited metabolic disorder" was never applicable to Plaintiff's condition. The Court further concludes that Defendant has failed to rebut the presumption that its denial of benefits decision commencing in April 2003 was affected by self-interest. See Tremain v. Bell Industries, Inc., 196 F.3d 970, 977 (9th Cir. 1999)(administrator's inconsistent reasons for denying benefits created rebuttable presumption that decision to terminate benefits was - 10 Document 65 Filed 09/22/2005 Page 10 of 14

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affected by conflict of interest and administrator failed to present any evidence to rebut that presumption). Discovery on the issue of conflict-of-interest is not necessary. This Court's review of Defendant's decision to terminate benefits is de novo. III. Discussion The district court, in applying the de novo standard of review, must review de novo the plan administrator's decision to deny benefits. Tremain, 196 F.3d at 978. Federal courts apply federal common law when faced with questions of policy interpretation under ERISA. Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir. 2002). Under this federal common law, the terms of a plan are given their ordinary and popular meaning as would a person of average intelligence and experience. Id. A de novo review "'gives no deference at all' to the decisions of insurers to deny benefits." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 n.2 (9th Cir. 1999). Upon conducting de novo review, the district court may decide the case on summary judgment if appropriate. Tremain, 196 F.3d at 978. It is undisputed that, as a result of surgery in March 2000, Plaintiff lost her ability to swallow food or water. This injury necessitated insertion of a gastrointestinal feeding tube and ingestion of nutritional formula. In April 2000, Plaintiff's surgeon issued a "Certificate of Medical Necessity" recommending the nutritional formula Jevity, which Plaintiff describes as a nutritional formula designed to provide complete, balanced nutrition for long-term tube feeding with minimal debilitating side effects. Defendant notified Plaintiff by letter dated November 6, 2000 that coverage for the formula and supplies would continue, stating unequivocally that "this type of charge will be covered in the future given your situation." Under the terms of the plan, general medical charges are not covered for any services, treatment or supplies that are "not Medically Necessary for the treatment of an injury or illness which is being treated." A "Medically Necessary" charge is one that is "necessary for the ... treatment of the illness or injury"; "provided for the ... direct care and treatment of the illness or injury;" "in accordance with generally accepted medical practice;" "not in excess - 11 Document 65 Filed 09/22/2005 Page 11 of 14

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of that level of care that is needed to provide safe, adequate and appropriate ... medical treatment;" "not for convenience purposes;" and, "the most appropriate level of medical care [Plaintiff] needs." It also must be "furnished within the framework of generally accepted methods of medical management;" not "experimental"; and not for "maintenance care." Plaintiff's need for nutritional formula such as Jevity meets the definition of a "Medically Necessary" charge given Plaintiff's medical condition that she has lost her ability to swallow. It also satisfies the requirements of the provision related to "Home Health Care" as care without which the insured would require "hospitalization" based on information provided by Plaintiff's physician and Defendant's past acknowledgment of coverage. While nothing in ERISA suggests that a plan administrator must accord special deference to the opinions of treating physicians, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965 (2003), a claimant's reliable evidence, including the opinions of a treating physician, may not be arbitrarily discredited. Id. The Court is mindful that Dr. Dachelet, Defendant's reviewing physician, expressed the opinion that Plaintiff's nutritional formula is liquid replacement of a regular diet, and not a special dietary formula, which is available over-the-counter or could be blenderized regular food. A similar opinion was expressed by the unidentified reviewing physician solicited by the ADOI. The Court notes, however, that the unidentified reviewing physician included as part of his opinion the following statement: "If this patient did not have the current medical condition with an inability to swallow, she would purchase her own foods and not request insurance coverage for the purchase of these foods." As noted, Plaintiff does have "the current medical condition" of inability to swallow as a result of surgical injury. Because of this "current medical condition" Plaintiff requires nutritional formula such as Jevity and related supplies. Under the terms of the policy, this treatment is medically necessary and therefore covered under the plan. The fact that Defendant is not statutorily mandated to provide coverage because Plaintiff's condition does not involve an "inherited metabolic disorder" does not seem relevant. - 12 Document 65 Filed 09/22/2005 Page 12 of 14

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The Court has reviewed Schneider v. Wisconsin UFCW Unions and Employers Health Plan, 985 F. Supp. 848 (E.D. Wis. 1997), cited by Plaintiff, in which the district court similarly concluded that the plaintiff's enteral nutritional therapy ("ENT") was "medically necessary" and therefore a covered benefit under the plan. In Schneider, the plaintiff underwent brain surgery which left him with a series of medical problems, including the inability to swallow. The plan's provisions defined "Necessary or Medically Necessary" as including "only those services, treatments or supplies" provided by a hospital or physician that are required to treat a person's illness or injury and which are, inter alia, consistent with the symptoms or diagnosis and treatment of the person's condition or injury; appropriate according to the standards of good medical practice; not solely for the convenience of the person, physician or hospital; and the most appropriate which can be safely provided to the person. Id., at 850. The Court sets forth the following discussion by the district court in Schneider as relevant to and supportive of the Court's conclusion reached in the case at bar: ... Indeed, the defendant attempts to characterize the ENT [enteral nutritional therapy] merely as an alternative to 'the normal types of food many Americans enjoy, such as hamburgers, pizzas, and seafood,' ... except that [plaintiff]'s 'food' was, in effect, 'put in a blender.' As the court understands this argument, the defendant asserts that a medical procedure that provides for a biologic function that a healthy human body generally provides for itself cannot be considered medically necessary. Under the facts of this case, where the insured is physically incapable of swallowing, this argument is unpersuasive. Id., at 851. Defendant's attempt to distinguish the circumstances and holding in Schneider from the instant case is rejected. The Court further holds that, even if Defendant's denial of benefits decision was reviewed under an "abuse of discretion" standard, the Court would reach the same conclusion. An ERISA plan administrator abuses its discretion if it makes a decision without any explanation, or in a way that conflicts with the plain language of the plan, or that is based on clearly erroneous findings of fact. Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480, 482 (9th Cir. 1990); Taft v. The Equitable Life Assurance Society, 9 F.3d 1469, 1472-73 - 13 Document 65 Filed 09/22/2005 Page 13 of 14

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(9th Cir. 1994). Defendant's decision in this case conflicts with the plan's provisions defining a charge that is "Medically Necessary" and relevant to "Home Health Care." The decision also is based on clearly erroneous findings of fact. Based on the files, record and proceedings herein, the material facts are not in dispute that the nutritional formula, equipment and supplies that Plaintiff requires as a result of her medical condition are a covered benefit under the policy. Plaintiff is entitled to judgment in her favor as a matter of law. Plaintiff's cross-motion for summary judgment is granted. Defendant's motion for summary judgment is denied. Accordingly, IT IS ORDERED that Plaintiff's motion to strike Exhibit 4 to Plaintiff's reply (Doc. 61) is granted. The Clerk of Court is directed to strike Exhibit 4 from Plaintiff's reply (see Doc. 60). IT IS FURTHER ORDERED that Defendant's motion for summary judgment (Doc. 44) is denied. IT IS FURTHER ORDERED that Plaintiff's cross-motion for summary judgment (Doc. 46) is granted. IT IS FURTHER ORDERED that Judgment shall be entered accordingly. DATED this 15th day of September, 2005.

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