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HomeMy WebLinkAbout99-04844 rl v 1 v J }? a" A.? s Ak PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, VS. (Plaintiff) . AMERICAN TRAVELERS LIFE INSURANCE COMPANY, (Defendant) /Dc 499 NO- 4844 Civil fiction 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant to Amended Complaint of Plaintiff, together with supporting Brief. 2. Identify counsel who will argue case: (a) for plaintiff: James W. Kollas, Esquire Address: 1104 Fernwood Avenue, Camp Hill, PA 17011 (b) for defendant: Mark H. Scoblionko, Esquire Address: 40 S. Fifth St., P.O. Box 1998, Allentown, PA 18105-1998 3. I will notify all parties in writing within two days that this case has been Listed for argument. 4. Argument Court Date: Dated: September 28, 1999 L Attorney for Defendant Lr c,. ?: n a Cm, V cT U SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-04844 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND REAKA SANDRA M ETC VS. AMERICAN TRAVELERS LIFE INSURA R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: AMERICAN TRAVELERS LIFE INSURANCE COMPANY but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of BUCKS County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On September 15th, 1999 , this office was in receipt of the attached return from BUCKS County, Pennsylvania. Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 ;eeme-- Surcharge 8.00 omas ine, ri Dep. Bucks Co 46.00 $8i.UU KOLLAS19gKENNEDY Sworn and subscribed to before me this !S ? day of 199_ A. D. VbN,Ce., G ?//? ?T-Fr??Fiono r In The Court of Common Pleas of Cumberland County, Pennsylvania Sandra M. Reaka, et. al. vs. American Travelers Life Insurance Company No. 99_4p44 Ci Now, 9 B 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Bucks County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of CumbelTa Affidavit of Service Now, 19_, at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of Sworn and subscribed before me this _ day of 19 COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA 0L BUCKS CQUNT`fflofl SHERIIpFF'S RETURN Filed -14J-41 in itvf'Y?sf? Bucks Case t? • 91 I'1192[?-.- Recd ]ARM Special Instructions Action (Oo -am Plaintiff - ?vMh M. Rt.arcn EKMfrgTlr OF vs THE ESTATE OF KENNETH E. REM Defendant _MS. AMERICAN TRAVELERS LIFT' TNGttRnnro CO3201 TT .TMnN DRT n. S MSALEM PA 19020 Address Served if Different ?i sd under Pa.R.C.P. #402 ___lA) (i) Defendant personally served /A) (2) (1) Family Member --(A) (2) (i) Adult in Charge of Residence 0 A) (2) (ii) Manager/Clerk at Defts. Lodging A) (2) (iii) Person in Charge of Business By Handing to r1? -'ey Posting ? Not Served 1003 -30 Days Ran Out _ Defendant Not Home _ Defendant Moved _ Address Vacant -Def. Unknown -Dep. Needs Better Add. -Checked Post Office _ No Forwarding _ Forwarding Address VT/Boro By Deput Witness Z, 0L T At ,rte o'clock (AMCEM) 6n The above document 4liff?-not served on the defendant as perinformation listed above in ttheeQ County of Bucks, Com Soanswers: h of Penrs??f ?CG?tsAw Lawrence R. Michaels, Sheriff of Bucks County firme apd subscribed before me on this day Prothonotary - ` ... Affirmed and subscribed before me on this day Notary Public My Com. Exp. l r r 1 Bucks County Case Invoice to mai ed t County Sh riN's Office Ann of (1lJ? or VAaj \?) o DUPLICATE RECEIPT RECEIPT # 1999 1 10419 TRANSACTION # St1 1999 31929 FOR C CUMBERLAND SHER 0811Z,'1999 15:45 P-03/1:7,,l99'9 PC #0025554 46. t_IU TOTAL PAID 46.[10 TOTAL COST 4r,.00 CHANCE 11,130 THANK YOU ANN a ti i ti 1 , lef 99 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, (Plaintiff) VS. AMERICAN TRAVELERS LIFE -- ' INSURANCE COMPANY, (Defendant) No. 4844 Civil Action 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint, together with supporting Brief. 2. Identify counsel who will argue case: (a) for plaintiff: William C. Kollas, Esquire Address: 1104 Fernwood Avenue, Ste. 104 Camp Hill, PA 17011 (b) for defendant: Mark H. Scoblionko, Esquire Address: 40 S. Fifth St., P.O. Box 1998 Allentown, PA 18105-1998 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: ' Dated: September 3, 1999 Attorney for De en ant PYS510 Cumberland County Prothonotary's Office Page 1 Civ il Case Inquiry 1999-04844 REAKA SANDRA M ETC (vs) AMERICAN TRAVELERS LIFE INSURA Reference No..: Case Type.....: COMPLAINT Filed........: Time.........: 8/11/1999 12:37 Judgment......: .00 Judge Assigned: Execution Date J T 0/00/0000 Disposed Desc.: ury rial.... Dis osed Date. 0/00/0000 ------------ Case Comments --- ---------- Higer Crt 1.: Higher Crt 2.: General Index Attorney Info REAKA SANDRA M EXECUTRIX PLAINTIFF KOLLAS WILLIAM C 42 ALFRED DRIVE LEWISBERRY PA REAKA KENNETH ESTATE OF PLAINTIFF KOLLAS WILLIAM C 42 ALFRED DRIVE LEWISBERRY PA AMERICAN TRAVELERS LIFE DEFENDANT INSURANCE COMPANY 1800 STREET ROAD WARRINGTON PA * Date Entries ******************************************************************************** - - - - - - - - - - - - - - - - - - - - - - - - 8/11/1999 COMPLAINT - CIVIL ACTION FIRST ENTRY ----------------------------------------------------- /03/1999 ENTRY OF APPEARANCE FOR DEFT - ATTY MARK H SCOBLIONKO -------------- ------------------------------------------------------------------- /10/1999 PRELIMINARY OBJECTIONS OF DEFENDANT TO COMPLAINT -------------------------------------------------------------------- 9/10/1999 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MARK H SCOBLIONKO ESQ DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TOGETHER WITH SUPPORTING BRIEF ------------------------------------------------------------------- 9/15/1999 SHERIFF'S RETURN FILED LITIGANT : AMERICAN TRAVELERS LIFE INSURANCE SERVED : 8/18/99 COSTS : $81.00 KOLLAS & KEN14EDY 9/15/99 -------------------------------------- V'9/20/1999 AMENDED COMPLAINT ------------------------------------------------------------------- 10/O1/1999 PRELIMINARY OBJECTIONS OF DEFENDANT TO AMENDED COMPLAINT ------------------------------------------------------------------- J10/01/1999 PRAECIPE FOR LISTING CASE FOR 4RGUMENT BY MARK H SCOBLIONKO ESQ ??aa as f PLAINTIFFRTOGETHERIWIITH SUPPORITNGTBROIEFMENDED COMPLAINT OF - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Be Bal P mts/Ad' End Bat COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 ------------------------- ------------ 45.50 45.50 .00 * End of Case Information IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant AND NOW, to wit, this ORDER No. 1999-4844 Civil Action-Law JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS day of , upon consideration of the Preliminary Objections filed by Defendant, and the Brief filed in connection therewith, and after hearing argument thereon, it is hereupon Ordered that the Defendant's Preliminary Objections are sustained. It is hereupon further Ordered as follows: 1. Defendant's Demurrer to Count If is sustained as a result of the fact that Pennsylvania law does not recognize a common law claim for breach of a covenant of good faith and fair dealing. 2. The Demurrer to Count III of the Complaint is sustained as a result of the fact that Plaintiff has failed to plead any facts which would make out a viable claim sounding in common law misrepresentation. 3. Defendant's Demurrer to Count V (sic.) of the Complaint is sustained as a result of the fact that Plaintiff has failed to plead any facts which would support a claim for violation of the Unfair Trade Practices and Consumer Protection Law. 4. The Demurrer is sustained with respect to claims for attorneys' fees. BY THE COURT: J. fr OJ I 1 11 L ' ?) r^ Q ? Z } Z LL ? wN w a a9 W z w O U Q ? Y 4 LL W O go cr O xui RI V z U wwz XY i Itwalu•wwJn •wmn•amn :aJ Krm 7n17M101dNVi1M dlvlATrv>D IJORNq Y'npllJLLVJPiIY LL J LL w z to Z m Og , O @ C ) 2U a z >- Ua K $Z Q o ? wD _ Z ?w a ao 5 s 99 MHS/dr 9JIM (Amer. TraveleralReaka P.O.,) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M. REAKA, No. 1999-4844 EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff Civil Action-Law V. AMERICAN TRAVELERS LIFE JURY TRIAL DEMANDED BY INSURANCE COMPANY, JURY OF TWELVE PERSONS Defendant PRELIMINARY OBJECTIONS OF DEFENDANT TO COMPLAINT AND NOW, to wit, this 3rd day of September, 1999, comes the Defendant above- named, by and through its undersigned counsel, Mark H. Scoblionko, Esquire, and files these Preliminary Objections to Plaintiffs Complaint, as follows: 1. DEMURRER TO COUNT II OF THE COMPLAINT 1. Count II of the Complaint purports to assert a claim based upon an alleged breach of covenant of good faith and fair dealing. 2. Pennsylvania law does not recognize a claim for an alleged breach of a covenant of good faith and fair dealing against an insurance company. 3. Count II of the Complaint has failed to make out a viable claim upon which relief can be predicated. 4. Additionally, the within claims are claims sounding in tort for what is basically a contract action, which is not permissible as a matter of law. 5. Additionally, the within claim is a tort claim for economic loss only, where there has been no damage to person or property, which is not permitted as a matter of law. WHEREFORE, Defendant respectfully prays that its Demurrer to Count II of the Complaint be sustained and that Count II of the Complaint be dismissed for failure to make out a viable cause of action. 11. DEMURRER AS TO COUNT III OF THE COMPLAINT 1. Count III of Plaintiffs' Complaint purports to set forth claims sounding in "misrepresentation." 2. Pennsylvania law does not recognize claims for "misrepresentation" unless a Complaint asserts facts that give rise to such an action. 3. All allegations set forth in Count III of the Complaint are general, conclusory allegations, but do not, in any fashion, set forth with specificity the material allegations of misrepresentation upon which such a claim must be based. 4. Additionally, the within claims are claims sounding in tort for what is basically a contract action, which is not permissible as a matter of law. -2- 5. Additionally, the within claim is a tort claim for economic loss only, where there has been no damage to person or property, which is not permitted as a matter of law. WHEREFORE, Defendant respectfully prays that its Demurrer to Count III of the Complaint be sustained and that Count III of the Complaint be dismissed for failure to make out a viable cause of action. III. DEMURRER TO COUNT V OF THE COMPLAINT 1. Count V of the Complaint purports to assert a claim based upon the violation of the Unfair Trade Practices and Consumer Protection Law. 2. Pennsylvania law, by its terms, requires that a claim under this statute be based upon a purchase of some goods or services as a result of actions by Defendant. 3. The Complaint recites that the Plaintiff allegedly suffered damages as a result of the denial of a claim for benefits under a policy. WHEREFORE, Defendant respectfully prays that its Demurrer to Count V of the Complaint be sustained and that Count V of the Complaint be dismissed for failure to make out a viable cause of action. IV. DEMURRER AS TO CLAIMS FOR ATTORNEYS' FEES 1. Plaintiff has asserted a claim for attorneys' fees. -3- 2. Plaintiff has failed to plead any facts which would support a claim for attorneys' fees. 3. The claims for attorneys' fees are not viable as a matter of law in an action of this type. WHEREFORE, Defendant respectfully prays that its Demurrer with respect to claims for attorneys' fees be sustained. SCOBLIONKO, SCOBLIONKO, MUIR BARTHOLOMEW & MELMAN BY: Mark H. Scoblionko, Esquire Attorney I.D. #08070 Attorney for Defendant 40 South 5" Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 -4- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff No. 1999-4844 Civil Action V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Mark H. Sooblionko, Esquire, attorney for Defendant, American Travelers Life Insurance Company, hereby certify that on September 3 , 1999, a true and correct copy of Brief of Defendant in support of its Preliminary Objections was served upon Plaintiffs counsel by first class mail, postage prepaid, as follows: William C. Kollas, Esquire Kollas & Kennedy 1104 Femwood Avenue Suite 104 Camp Hill, PA 17011 SCOBLIONKO, SCOBLIONKO, MUIR BARTH ,QLOMEW & MELMAN B Mark H. Scoblionko, Esquire Atty. I.D. #08070 Attorney for Defendant 40 South 5th Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 VI\ 1 N 01 } O w 2 n Z w g } i ° a Ya 0 O N n Z C W N 0 LL C 4 4 - { -+ a O 0 IL f a u iw xua•.n xumu rvi?u.n nuo oc wvo. i i SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 SANDRA M.REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Sandra M. Reaka, by and through her attorneys KOLLAS AND KENNEDY, and avers the following in support of this complaint: 1. Plaintiff, Sandra M. Reaka, is an adult individual residing at 42 Alfred Drive, Lewisberry, Cumberland County, Pennsylvania. 2. Plaintiff is the daughter of Kenneth E. Reaka, deceased. 3. Decedent, Kenneth E. Reaka, died on October 25, 1997. 4. Plaintiff was granted Letters Testamentary for the estate of decedent Kenneth E. Reaka on February 4, 1998, by the Register of Wills of Cumberland County, Pennsylvania, and is the Executrix of said estate. 5. Defendant, American Travelers Life Insurance Company, (hereinafter "ATLIC") is a corporation licensed to do business in the Commonwealth of Pennsylvania with a place of , business located at 1800 Street Road, Warrington, Pennsylvania. 6. On or about August 7, 1989, decedent Kenneth E. Reaka and Defendant ATLIC entered into a written contract (hereinafter the "policy"). A true and accurate copy of the policy is attached hereto as Exhibit "A." 7. The policy was executed at 417 Reservoir Road, Mechanicsburg, Cumberland County, Pennsylvania, which was the residence of decedent Kenneth E. Reaka. 8. The effective date of the policy between decedent Kenneth E. Reaka and Defendant ATLIC is August 7, 1989. 9. Under the terms of the policy, decedent Kenneth E. Reaka was entitled to seek benefit payments from the Defendant in regard to expenses incurred from confinement in nursing home facilities and in regard to expenses incurred from a period of home health care following confinement at a nursing home facility. 10. Under the terms of the policy, any accrued benefits unpaid at the Insured's death were to be paid to the estate of the deceased. HISTORY OF DECEDENT'S POLICY-RELATED INCIDENTS 11. On or around May 4, 1994, decedent Kenneth E. Reaka fell and broke his right hip. 12. On or around May 4, 1994, decedent Kenneth E. Reaka was admitted to Northwest Hospital Center (hereinafter "Northwest"), Randallstown, Maryland, in order to receive treatment for his broken right hip. 1) 13. On or around May 19, 1994, decedent Kenneth E. Reaka was transferred from Northwest to Sinai Hospital of Baltimore (hereinafter "Sinai"), Baltimore, Maryland. 14. While at Sinai decedent Kenneth E. Reaka received care for his broken right hip. 15. On or around June 9, 1994, decedent Kenneth E. Reaka was transferred from Sinai to the Cherrywood Health Care & Rehabilitation Center (hereinafter "Cherrywood"), which is a nursing home facility located at 12020 Reistertown Road, Reistertown, Maryland. 16. While at Cherrywood decedent Kenneth E. Reaka received care for his broken right hip. 17. On or around June 22, 1994, decedent Kenneth E. Reaka was released from Cherrywood to the home of Frank and Darlene Israel at 218 Bond Avenue, Reistertown, Maryland. 18. While at the home of Frank and Darlene Israel, decedent Kenneth E. Reaka received home health care services for his broken right hip until September of 1994. 19. On or around September 1, 1994, decedent Kenneth E. Reaka left the home of Frank and Darlene Israel and was admitted to Elesy Manor, Inc., (hereinafter "Elesy Manor"), which is a nursing home facility located at 4012 Buckingham Road, Baltimore, Maryland. 20. Decedent Kenneth E. Reaka's confinement at Elesy Manor was required because of his broken right hip. 21. Decedent Kenneth E. Reaka remained confined at Elesy Manor until August 29, 1995. The cost of this period of admittance was $19,480.00. 22. On or around August 29, 1995, decedent Kenneth E. Reaka sustained a fracture to 3 his right acetabulum and again was admitted to Sinai. 23. On or around September 6, 1995, decedent Kenneth E. Reaka underwent surgery to address his injury of August 29, 1995. 24. On or around September 14, 1995, decedent Kenneth E. Reaka was transferred from Sinai to Levindale Hebrew Geriatric Center & Hospital (hereinafter "Levindale"), which is a nursing home facility located at 2434 Belevedere Avenue, Baltimore, Maryland. 25. The facilities of Levindale were employed to care for decedent Kenneth E. Reaka's injury of August 29, 1995. 26. On or around November 28, 1995, decedent Kenneth E. Reaka left Levindale and was admitted to Autumn House Assisted Living (hereinafter "Autumn House"), which is a nursing home facility located at 110 Neel Avenue, Glyndon, Maryland. 27. Decedent Kenneth E. Reaka's confinement at Autumn House was required because of his injury of August 29, 1995. 28. Decedent Kenneth E. Reaka remained confined at Autumn House until December 2, 1996. The cost of this period of admittance was $21,630.00. 29. On or around December 2, 1996, decedent Kenneth E. Reaka left Autumn House and was admitted to Vann Senior Living (hereinafter "Vann"), which is a nursing home facility located at 12 Cedarhill Road, Randallstown, Maryland, 30. Decedent Kenneth E. Reaka's confinement at Vann was required to provide further care for his injury of August 29, 1995. 31. Except for the period of time from April 1, 1997, to April 10, 1997, when he was 4 admitted to Sinai for a syncopal episode, decedent Kenneth E. Reaka remained confined at Vann until October 25, 1997, the decedent's date of death. The cost of this period of admittance was $20,350.00. PLAINTIFF'S ATTEMPT AT CLAIM COLLECTION 32. Due to his injuries and subsequent loss of recollection, decedent Kenneth E. Reaka was incapable or unable to communicate the terms and nature of the policy to his agents. 33. The terms and nature of the policy were not fully recognized until the Plaintiff began the process of gathering assets of the estate of the decedent, Kenneth E. Reaka. 34. In or around January of 1998, within a reasonable time after discovering the policy and discerning its contents, Plaintiff gave Defendant ATLIC verbal notice of her claim. 35. In response to Plaintiffs verbal notice of her claim, ATLIC sent several forms to the Plaintiff for her to fill out and return to ATLIC. 36. After gathering information from the nursing home facilities named above, Plaintiff gave written notice of her claim for payment of $61,460.00 to Defendant ATLIC in a letter dated November 12, 1998. A true and accurate copy of this letter is attached hereto as Exhibit "B." 37. Defendant ATLIC rejected Plaintiffs claim to payment in a letter dated December 15, 1998. A true and accurate copy of this letter is attached hereto as Exhibit "C." 38. Defendant ATLIC's rejection of Plaintiff's claim was based on Defendant's interpretation of time restraints in the policy and not upon the merits of Plaintiffs claim. 39. Despite repeated requests from the Plaintiff, Defendant ATLIC has continued to refuse payment of Plaintiff's claim. 40. Defendant ATLIC's continued rejection of Plaintiffs claim constitutes reckless, outrageous, and/or oppressive conduct. 41. Under the terms of the policy, all benefits were payable to Kenneth E. Reaka, and any benefits unpaid at Kenneth E. Reaka's death were to be paid to his estate. 42. Defendant ATLIC's refusal to pay benefits due and owing to the estate of decedent, Kenneth E. Reaka, is a breach of the terms of the policy. PREMIUM PAYMENT OWED TOP PLAINTIFF 43. At all times from the effective date of the policy until Kenneth E. Reaka's death, the policy was in force. 44. Premiums for the policy were paid from the effective date through January of 1998. 45. Because the decedent died on October 25, 1997, Defendant ATLIC is not entitled to premium payments which were made for November 1997, December 1997, and January 1998; and, these payments, totaling $345.60, must be returned to the Plaintiff. 46. In accordance with the terms of the policy, decedent Kenneth E. Reaka was entitled to seek payment benefits from Defendant ATLIC in regard to expenses incurred at the above-named nursing home facilities and for related home health care. 6 47. The amount of payment benefit concerning nursing home facilities is set forth in the policy as $2,000.00 it month for a aggregate maximum period up to five years from the effective date of the agreement with, as stated in the rider to the policy, a five percent increase for each of the first fifteen policy year anniversary dates. 48. The amount of payment benefit concerning home health care is set forth in the policy as $1,000.00 a month for an aggregate maximum period up to one year from the effective date of the agreement with, as stated in the rider to the policy, a five percent increase for each of the first fifleen policy year anniversary dates. 49. In light of the provisions referred to in paragraphs 47 and 48 above, Plaintiff has reassessed the amount of accrued benefits owed to the Plaintiff. 50. Because decedent Kenneth E. Reaka was in the above-named nursing home facilities f'or the periods stated and received home health care for the period stated, decedent Kenneth H. Reaka's estate is entitled to claim $ 101,144.99 in benefits from the policy. 51. Defendant ATLIC owes the estate of decedent Kenneth E. Reaka an amount in excess of $101,490.59. COUNT I - BREACH OF CONTRACT 52. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 51 as though the same were fully set forth herein at length. 53. The actions of Defendant as aforesaid are willful and constitute a material breach of the contract entered into between decedent and Defendant. 7 54. As a direct and proximate result of the actions of Defendant as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to loss of the monies owed to Plaintiff by Defendant, loss of the use of said monies, lost interest on the money, and other such damages as may be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, and for such other relief as this Honorable Court may deem appropriate. COUNT 2 - BREACH OF COVENANT OF GOOD FAITH AND FAIR DEAL IN 55. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 54 as though the same were fully set forth herein at length. 56. Defendant's actions constitute a breach of the covenant of good faith and fair dealing which Defendant owed Plaintiff. 57. As a direct and proximate result of the actions of Defendant as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to loss of the monies owed to Plaintiff by Defendant, loss of the use of said monies, lost interest on the money, and other such damages as may be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, punitive damages, and for such other relief as this Honorable Court may deem appropriate. COUNT 3 - MISREPRESENTATION 58. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 57 as though the same were fully set forth herein at length. 59. Defendant made false representations concerning coverage in the policy. 60. Defendant knew or should have known its representations were fraudulent. 61. Defendant intended or had reason to expect action or forbearance on the part of decedent. 62. Decedent justifiably relied upon the representations of the Defendant by accepting the policy, by paying premiums toward the policy, and by seeking admittance to nursing home facilities as provided in the policy. 63. Decedent and his estate have suffered damage as a result of relying on the representations of Defendant. WI-IEREFORE, Plaintiff, Sandra A Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, punitive damages, and for such other relief as this Honorable Court may deem appropriate. COUNT 5 - VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION 1,6W 64. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 63 as though the same were fully set forth herein at length. 65. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law (73 P.S. §201-1 et seq.) because Defendant has employed unfair or deceptive acts or practices. 66. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law because Defendant has represented that services provided by Defendant have benefits which they do not have. 67. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law because Defendant has engaged in other fraudulent or deceptive conduct which has created a likelihood of confusion or misunderstanding, including: a. misrepresenting pertinent fact or policy or contract provisions relating to coverage at issue; b. failing to adopt and implement reasonable standards for the prompt investigation of claims arising under the policy; C. refusing to pay claims without conducting a reasonable investigation based upon all available information; and/or d. not attempting in good faith to effectuate prompt, fair and equitable 10 settlements of claims in which the Defendant's liability under the policy has become reasonably clear. 68. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law for reasons yet to be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, treble damages, and for such other relief as this Honorable Court may deem appropriate. RESPECTFULLY SUBMITTED: William C. Kollas, Esquire Supreme Court I.D. No. 06341 KOLLAS AND KENNEDY 1 104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717)731-1600 ATTORNEY FOR PLAINTIFF Dated: 61I6 IG01 SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED I, SANDRA M. REAKA, verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unsworn falsification to authorities. Sandra M. Reaka ?I DATE! THIS IS NOT A MEDICARE SUPPLEMENT POLICY. Ir ,UNDID >.tpNSU "RASjq, AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18976 (REFERRED TO IN THIS POLICY AS "WE," "US," OR "OUR") PREMIUM MAY BE INCREASED UPON THE RENEWAL DATE. In this policy "you" or "your" refers to the Insured named in the Schedule. We agree to insure you against loss due to Injury or Sickness to the extent stated in this P,dicy..Payment of benefits under this Palioy will be spbject to all of its terms. CONSIDERATION AND TERMS This policy is issued in consideration of: (1) the advance payment of the Initial Premium on or before the Effective Date; and (2) the statements contained in the attached application. This Policy is effective at 12 Noon, at your residence, on the Effective Date shown in the Schedule. It continues in force for the Tenn specified in the Schedule subject to the Grace Period. This Policy may be renewed f& like terms in accordance with the Renewability provision. NOTICE OF TEN DAY'RIGHT TO b(AMINE POLICY Within ten (10) days of receipt of this Policy, you may return it to us or our authorized agent for any reason. Immedi• ately upon our receipt as stated, the Policy will be considered void from the beginning. Any premium paid will be refunded. pr RENEWABILITY - GUARANTEED RENEWABLE This policy is guaranteed renewable for your lifetime or until the Policy's Aggregate Maximum Benefit Period has been reached. It may be kept in farce by the timely payment of premiums. We cannot cancel this Policy as long as you pay the premiums. We can, change the renewal premium rates. We can only change them if they are changed for all policies in your state on this policy form. Renewal premiums due after a change is implemented will be based on the new rate. Notice of any change in rates will be sent at least 30 days in advance. Premium rates can not 136 changed more than once SUPPLEMENTAL NURSING HOME AND HOME HEALTH CARE POLICY u TABLE OF CONTENTS 1. BENEFIT PROVISIONS Page Nursing Home Facility Benefits ................................ .................. 5 Home Health Care Benefits ................................... ....... ................ 5 Recurrent Benefit Priods ...................................... ........ .................. 5 Aggregate Maximum Policy Benefit Period ....................... ...... ............... 6 Waiver of Premium Benefit .................................... ......... ........................ 6 2. DEFINITIONS .............................................. ....................... 2,5 3. EXCLUSIONS AND LIMITATIONS .............................. ........................ 6 4. GENERAL PROVISIONS ..................................... ....................... 6.7 5. PRE-EXISTING CONDITIONS LIMITATIONS ...................... ........ . ............... 6 DEFINITIONS "APPROVED PRACTITIONER" means a licensed registered graduate professional nurse (R.N.), licensed practical nurse (L.P.N.), chemotherapy specialist, physical therapist, inhalation therapist, or speech therapist. No person will be considered an Approved Practitioner unless he or she is certified and/or licensed in accordance with all applicable Federal, state, and local laws and regulations to provide the services and supplies you receive. "ELIMINATION PERIOD" means the period of time, stated on the Policy Schedule Page, which must pass before be(ie.iits will be payable under this policy. The Insured must satisfy this Elimination Period requirement for each con- fiiie birt, while the policy is in force, which begins after 180 consecutive days of non-confinement in a nursing home facility. However, if a second nursing home facility confinement is incurred within 180 days of discharge from a nurs- fiig home facility, for which benefits were payable under this policy, this confinement will be considered a continuation of the first nursing home facility confinement. No elimination period will be required in this instance, or prior hospital stay of 3 consecutive days. "HOSPITAL" means an institution (1) operated pursuant to law; (2) maintaining and operating, either on its premises or in facilities available to it on a prearranged basis, medical, diagnostic and major surgical facilities for the medical care and treatment of sick or injured persons on an inpatient basis; and (3) provides 24 hour nursing service by or under the supervision of registered graduate professional nurses (R.N.'s) and provides the services of one or more Physicians. "HOSPITAL" does not include: (1) convalescent homes; (2) convalescent, rest or nursing facilities; (3) facilities for the aged, drug or alcoholic rehabilitation; (4) facilities primarily affording custodial, rest, geriatric or educational care. A special unit primarily used for extended care or as a nursing, rest, or convalescent home shall not be considered a Hospital. "INJURY" means accidental bodily injury sustained while this Policy is in force. Such Injury must cause loss directly and independently of all other causes and result in loss covered by this Policy. "NURSING HOME FACILITY" means a skilled nursing, intermediate care, or custodial care facility, which: (1) pro- vides nursing care on an inpatient basis; (2) is other than purely residential in nature, except for custodial care facilities; (3) Is duly licensed by the jurisdiction in which it is located to provide the services you receive; and (4) is operated pursuant to applicable laws acid regulations. "NURSING HOME FACILITY CARE" means care of the type regularly and customarily given Nursing Home Facility Patients on a 24-hour-a-day basis. It must be: (1) care based upon a Physician's regular written order certifying its need; (2) care that can either improve or maintain the Insured Person's condition or attempt to do so; (3) care super- vised by licensed and qualified professional personnel; and (4) care which is not normally available in a hospital. "PHYSICIAN" means any licensed practitioner of the healing arts operating within the.scope of his or her license. A "POLICY IN FORCE" mearm the policy will be in force on the effective date listed in the Schedule Page for new co'rtdltions or the policy will be in force six months following the effective date listed in the Schedule Page for pre. &06g conditions. ;; . A AN-NCP48&PA :, ." r Pepe Two POLICY SCHEDULE POLICY NUMBER 142681 6/07/89 EFFECTIVE DATE INSURED KENNETH E REAKA 8/07/90 FIRST RENEWAL DATE AGE 69 ANNUALLY TERM INITIAL PREMIUM 1290.00 1280.00 RENEWAL PREMIUM BENEFITS NURSING HOME BENEFITS Monthly Benefit Amount s 2000 Elimination Period 0 Days Maximum Benefit Period 5 Year(s) HOME HEALTH CARE BENEFITS Monthly Benefit Amount a 1000 Aggregate Maximum Home Health Care Benefit Period 1 Year Aggregate Maximum Policy Benefit Period 5 Year(s) THE PREMIUMS SHOWN ABOVE INCLUDE PREMIUMS FOR ANY BENEFIT RIDERS ISSUED ON THE SAME DATE AS THIS POLICY. BENEFIT RIDERS ISSUED ON THE SAME DATE AS THE POLICY: BIR-88 PA, AUTOMATIC BENEFIT INCREAS E RIDER: BENEFITS WILL INCREASE 5X ON EACH OF THE FIRST FIFTEEN YEAR ANNIVERSARY DATES. Arty` NCP-88 PA Page Three HOME OFFICE LM ONLY NPI C(i4 Wp- f 4-,LK- 25 Q QC? v t, T D DA-TE WA DATE REWESIED F+*Y TYPa BarI+1 A rIOO FWiotl MATIC Tad N N'?NUre T mn I aro ?_ rear(s) o D+n 7 w. s NCP C pxyr M W n rJudrp pgty F Noma one c loo Dan CCaare Ya S /.,7 ,I 11 4W mansr 'LEASE PRINT IN BLACK INN All Questions Must Be Answered Completely or the Application WIII 8e APPLICATION FOR HEALTH INSURANCE TO: rnvrvacv name (a) Ape (D) Dole of Binh INSURED rinn E, ?_ (e) Sex (e)s +I Status -1L-24 Strom ALOreu e,11 lemone IQ Wngnt 191 Sxw SecurilY N Der cm 6 Mbe __ ee Zoo Number " DO NOT APPL FOR THIS POLICY IF THE ANSWER IS YES TO ANY PART OF THIS QUESTION 1.. 1. (a) To the best of your knowledge and belief, do you have any of the following conditions: internal cancer (now or within the past year); leukemia; cirrhosis of the liver; Alzheimer's disease; any brain disease or disorder, whether organic or not; kidney failure requiring dialysis; multiple sclerosis: paraplegia or quadriplegia; or amputations arising from diabetes or a circulatory disorder; or osteoporosis? Yes O No (b) Are you currently a resident in a nursing care or similar facility, or have onfined in such a facility during the last 24 months; or are you unable to walk, bedridden, incontinent, or unable to perform every( ivnies (such as eating, dressing, bathing, cookinp? without the aid of a wheelchair or walker or another person; or require the uslhosigtaf Yes ? No 17 (c) Are you currently confined in a hospital, or have you been confined in hree or more times in the last 24 months?Yet ? No E7/ IF THE ANSWERS ARE NO TO THE PRECEDING QUESTION, PLEASE ANSWER THIS QUESTION FULLY. COMPLETE DETAILS ARE NEEDED TO PROPERLY DETERMINE THE PREMIUM TO BE CHARGED IN ACCORDANCE WITH THE COMPANY'S EVALUATOR CHART. 2. (ay List all conditions for which you are current)y being treated or have been treated in the last five years. IF NONE, ENTER NONE. IMPORTANT: INCLUDE EXACT NATURE OF ILLNESS OR INJURY, DATES OF EXAMINATIONS AND TREATMENT RECEIVED, AND PROGNOSIS. Use reverse side or separate sheet if more space is needed. p r b r n ?s>? - -7 799, (b) Name of Family physician d Y 3. 4. conditions are health condifions for which advice or treatment was retort a d coverage. Do you understand that confinement or other loss due to a period following the effective date of your coverage? all tong term care nurs gaol by the insurance home coverage (more than 100 days) in force in this or any Company. State if ng applied for. If so, have you received the required notice from regardma rem is to be reWdaced or Yee ? No ? Yea D No ? Yea ? Ne _? 5. Is the pokey applied for suitable for your insurance needs and are you able to afford this insurance? Yes b C) I have read the answers to the above questlons before signing this application. I represent that the answers are correctly written as given by me and are true and complete to the best of my knowledge and ballet. I agree that the Compan is not bound by anyy statement made by or to anY aoant unim written herein. I can y that I have received from the agent any required outlined coverage and Medicare Supplemem euyer'e Guide. I h4reby authorize any insurance company, hospital, nursing home or other medical fadysician or other medical practitioner having any infor• motion or knowledpa of me or my health to give such information to American Travellers surance Com n I Me authorization asps be s valid as t e onQinal )r4( Pa Y• PhotocoPY of this Doled +vL this day of .19 of th Sp Wu a f liave,reviawed the current insurance coverage of the Pr/ ,/ P ppD+ra Ins a `) have Insured and find that additional covers of the type and amount applied for the Proposed Insured'sne M . I certify: I I have aawretey reoorded information suppled by Ne Proposed Incur (2required, Ce/dJCar supplement is Guide to the Proposed Insured At the time appl?i1cation was made, .,; .. ftMok ra r Apart No" of Agent (Pmt) Apet'+ DpO? " ^ 00 or received in the 6 month period just before t Tg condition will not be covered lt Y ins ng "PRE-EXISTING CONDITION" means a condition for which medical advice or treatment was recommended by or received from a physician within a six month period immediately preceding the Effective Date of coverage. "REASONABLE CHARGE" means a charge which does not exceed the regular and customary charges for, or the fair and reasonable value of, the services and supplies you receive. The Reasonable Charge will be determined by comparing the expense you incur with the charges made for similar services and supplies in the locality concerned to persons whose age and medical condition are similar to yours. "SICKNESS" means sickness, illness or disease diagnosed or treated by a Priysician after this Policy's Effective Date and while this Policy is in force. BENEFIT PROVISIONS NURSING HOME FACILTIY BENEFITS We will pay the applicable Monthly Benefit Amount set forth in the Policy Schedule for each month you are confined in a Nursing Home Facility, as defined. Benefits start with the day after the Elimination Period shown in the Policy Schedule. Payments are subject to the Aggregate Maximum Policy Benefit Period described below. We will pay this benefit only if your confinement: (1) begins: (a) while this Policy is in force; and (b) within 30 days of discharge from a Hospital stay which began while this Policy was in force and which continued for not less than 3 consecutive days; and (2) is required due to Injury or Sickness which is the same as or directly related to that which caused the prior Hospital stay; and (3) is under a planned program of observation and treatment in accordance with the standards of medical practice for the Sickness or Injurywhich made the confinement necessary. Your attending Physician must: (1) personally examine you each month you are so confined; and (2) certify as to the degree of care needed. Benefits for periods of confinement of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of confinement. MAXIMUM BENEFIT PERIODS - The Maximum Benefit Periods for confinement in a Nursing Home Facility, as defined, are set forth in the Policy Schedule. The Maximum Benefit Period is the maximum number of monthly benefits we will pay for all confinements in a nursing home facility, as defined. HOME HEALTH CARE BENEFITS The benefits stated below will be paid for care which you receive in your home from an Approved Practitioner while your policy is in force, to the extent such care is: 1) certified as required by a physician then attending you for the Injury or Sickness for which care is received from an Approved Practitioner; and 2) is received during a Benefit Period which begins (a) within 30 days after youa re discharged from a Nursing Home Facility confinement of at least 30 days and (b) if such Nursing Home Facility confinement followed within 30 days after the end of a Hospital stay of at least 3 consecutive days. We will pay the Monthly Home Health Care Benefit Amount set forth in the PolicySchedule for each month you receive care at home from an Approved Practitioner. Benefits will be paid towards the usual, customary, and reasonable charge for services provided by the Approved Practitioner. Benefits for Home Health Care Services of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of services. The Policy Schedule sets forth an Aggregate Maximum Home Health Care Benefit Period. That Aggregate Maximum is the maximum number of monthly benefits we will pay for Home Health Care Services. A Benefit Period will end when you have not received any such care from an Approved Practitioner for 90 consecutive days. RECURRENT BENEFIT PERIODS If Nursing Home Facility benefits have been paid and you are again confined, the second confinement will be con- sidered a continuation of the first unless separated by at lesat 180 consecutive days. If separated by 180 consecutive days, the second confinement will be considered to be a new one. In the latter case, a new Elimination Period applies as well as the requirements of a prior hospitalization as stated in the Nursing Home Facility Benefit Provision. Other- wise, no separate Elimination Period will apply. ATL•NCP•88•PA Page Five AGGREGATE MAXIMUM POLICY BENEFIT PERIOD r ` The Schedule also sets forth an Aggregate Maximum Policy Benefit Period. That aggregate maximum is the max. imum benefit period we will pay under this Policy for confinement in any combination of Nursing Home Facilities and Home Health Care during the life of this policy. WAIVER OF PREMIUM BENEFIT We will waive the payment of each premium falling due after the commencement of a covered Nursing Home Facility confinement, and during its uninterrupted continuance, subject to the following: (1) Written proof of confinement must be received as soon as reasonably possible during your lifetime; (2) The confinement must be one for which benefits are payable under this Policy; and (3) You must be continuously confined for a period of 180 days before the benefit provided herein is applied. The premium payment waived will be that premium according to the mode of payment in effect at time of commence. ment of confinement - i.e. if payments are normally paid quarterly, we waive the premium payment for the same duration and for any successive periods that may become due while confined. PRE-EXISTING CONDITIONS LIMITATION No loss due to a Pre-existing Condition will be covered unless that loss begins more than six months after the effective date of coverage. EXCLUSIONS AND LIMITATIONS This Policy does not cover loss caused by: (1) routine physical examinations; (2) simple rest care, hotel privileges or residential care; (3) declared or undeclared war or act thereof; (4) mental, nervous or emotional disorders without demonstrable organic origin (Alzheimer's Disease is covered, as any other sickness); and (5) charges for services, use of facilities or supplies that you are not legally obligated to pay. GENERAL PROVISIONS ENTIRE CONTRACT: This policy, including any attached papers, constitutes the entire contract. No change is valid until: (1) approved by one of our executive officers; and (2) endorsed hereon or attached hereto. No agent has authority to change this Policy or to waive any of its provisions. TIME LIMIT ON CERTAIN DEFENSES: (a) After two (2) years from the effective date of coverage, no misstatements, except fraudulent ones, made in the application may be used to void this Policy. or that coverage, or deny a claim for loss incurred commencing after the two (2) year period. (b) No claim for loss incurred commencing after six (6) months from the effective date of coverage will be reduced or denied because a sickness or physical condition had existed six months before the effective date. GRACE PERIOD: A grace period of 31 days is granted for the payment of each premium due after the first premium, during which time the Policy continues in force. REINSTATEMENT: If the renewal premium is not paid before the Grace Period ends, this policy will lapse. Later ac- ceptance of the premium by us, or by our agent authorized to accept payment, without requiring an application for reinstatement will reinstate the Policy. If we require a reinstatement application, you will be issued a conditional receipt for the premium. If we approve your reinstatement application, the Policy will be reinstated as of the date of our approval. If we disapprove your applica• tion, we must do so in writing within thirty (30) days of the conditional receipt. Otherwise, your Policy will be reinstated thirty (30) days after the date of the conditional receipt. The reinstated Policy will cover only loss resulting from accidental injury as may occur after the date of reinstatement and loss due to sickness as may begin more than ten (10) days after that date. In all other respects, both your rights and our rights under the Policy will be the same as before termination. Any premiums we accept for a reinstatement will be applied to a period for which premiums have not been paid. No premium will be applied to any period more than sixty (60) days before the date of reinstatement. ATL•NCP•88•PA Page Six NOTICE OF CLAIM: We must receive written notice of claim within six (6) months of loss. If not, as soon as reasonably possible. Notice to the Home Office or authorized agent is acceptable. CLAIM FORMS: We will furnish forms to prove loss. We will do so upon our receipt of notice of claim. If forms are not furnished within 15 days, the claimant will be considered to have complied ff, within the time for filin claimant gives us written proof specifically describing the loss, g proof, the PROOF OF LOSS: The claimant must give us written proof of loss within six (6) months of it happening. If he or she has a good reason for not doing so, we will not contest the claim. However, the claimant must give us proof no later than one (1) year from the time normally required unless legally irx epable. TIME OF PAYMENT OF CLAIMS: Benefits payable under this Policy for any loss other than loss for which f ! pedoclic is provided will be paid immediately upon receipt of written proof of loss. Subject to written pro of loss, all aocured benefits for loss for which periodic payment is provided will be paid monthly. Any balance remaining unpaid at the end of our liability will be paid immediately upon receipt of written proof. - PAYMENT OF CLAIMS: All benefits will be payable to you. Any accrued benefits unpaid at the Insured's death will be paid to the estate. PHYSICAL EXAMINATION: At our expense, we shall have the right and opportunity and as often as we may reasonably require while a claim is to examine any clamant when ? pending LEGAL ACTIONS: No legal or equitable action shall be brought to recover on this Policy sooner than sixty (60) days 'after written proof of loss has been furnished. No action shall be brought after the end of three (3) years (n South Carolina six (6) years; in Kansas five (5) years) from the time written pro of loss is required. MISSTATEMENT OF AGE: If youi age has been misstated, all amounts would have purchased at the correct age. payable shall be such as the premium paid CONFORMITY WITH STATE STATUTES: Any provision of this Policy, which on its Effective Date conflicts with the i statutes of your state on such date is hereby amended to conform to its minimum requirements. UNPAID PREMIUM: When a claim is paid, any premium due and unpaid may be deducted from the claim payment. ILLEGAL OCCUPATION: We will not be liable for loss due to your being engaged in an illegal occupation or for which a contributing cause was your commission of or attempt to commit a felony. t INTOXICANTS AND NARCOTICS: We will not be liable for loss due to your being intoxicated or being under the influence of a narcotic unless administered on a Physician's advice. IN WITNESS WHEREOF, we have caused this Policy to be signed by our President and Secretary. Susan Mankowski Secretary *• Countersignature of Licensed Resident Agent: ATL-NCP•BB-PA John A Powell President (If required by State) Page Seven p"f .. .,, _.r . . IMPORTANT MESSAGE TO OUR POLICYHOLDERS Dear Policyholder: Cancelling a health insurance policy you already own and purchasing a new one, due to encourage- ment by any agent, is called replacement. Some states have laws which forbid any misrepresentation or incomplete comparison by any agent that may occur at the time of replacement. These laws re- quire a written and signed comparison of your existing policy and the recommended new policy be given to you. Beware of anyone who urges you to replace this policy without allowing you time to calefully investigate tog-replacement proposal, or discourages you from talking with a representative of the company whose oolicv_is being recommended Tor: replacement`. For your protection, if you are encouraged to replace this policy, we urge you to seek advice and take the time to investigate any recommendation. Keep in mind that you can request changes in your ,policy long after its effective date. John A. Powell t " President SUPPLEMENTAL NURSING HOME AND HOME HEALTH CARE POLICY •r -.r. 1. .. _ ATl- 98 PA Page Eight AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18976 AUTOMATIC BENEFIT INCREASE RIDER This rider will be a part of the policy to which it is attached; that policy will be called "the Policy" in this rider. Except as stated In this rider, all terms, conditions, limits, and exceptions of the Policy apply to this rider as to the Policy. This rider is issued in consideration of (1) the statements in the application for it and (2) advance payment of the first Rider Premium. The Rider Premium is included in the premium for the Policy which is shown in the Policy Schedule, EFFECTIVE DATE This rider takes effect as of the Policy Date, to which this rider is attached. AUTOMATIC BENEFIT INCREASE In consideration of the first Rider Premium, we will increase your Monthly Nursing Home Facility Benefit and your Home Health Care Benefit on each of the first fifteen (15) policy year anniversary dates. The Benefit increase will equal five percent (5%) of the Policy's initial Monthly Nursing Home Facility Benefit, and Home Health Care Benefit stated in the Policy Schedule Page. Ah example of the increased benefit, based upon an initial $100.00 Monthly Nursing Home Facility Benefit is: POLICY YEAR ANNIVERSARY 1 2 3 4 5 10 15 16 and thereafter MONTHLY BENEFIT AMOUNT $105.00 110.00 115.00 120.00 125.00 150.00 175.00 175.00 The increase will apply only to benefits payable on or after the date of increase, even if confined in a Nursing Home Facility or receiving Home Health Care Services at that time. If your policy lapses and is subsequently reinstated under the provisions of the attached policy, the benefit level which would have been applicable had coverage remained continuously in force will be payable. This rider will terminate on the earlier or: TERMINATION (a) The date the Policy terminates; or (b) The end of the last period for which the premium required to keep this rider in force is paid, subject to "Grace Period" in the Policy. In witness of the above, AMERICAN TRAVELLERS LIFE INSURANCE COMPANY has caused this rider to be signed by its President. John A. Powell President ATL-BIR-66 Sandra M. Raga 42 Alfred Drive November 12, 1998 Lewisberry, PA. 17339 AMERICAN TRAVELERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, PA. 18976 Re : Policy 11142681 Kenneth E. Reaka Effective Date : 08/89 ; Paid Through : 01/98 Attn: Claims,Processing To Whom It May Concern:: This letter is written request for reimbursement of funds paid for the care of Kenneth Earl Reaka under the aforementioned policy. Kenneth Earl Reaka passed away October 25, 1997. Prior to his demise, from Sept 94 thru Oct. 97, Kenneth Reeks resided in three separate custodial/skilled 24 hour care facilities. i i Completed Facilities and Physician Statements are submitted for claim processing on said care. The , following monetary notation is for auditing assistance. Elesy Manor, Inc. Admitted : 09/01/94 Cost Per Month Paid : 1,600.00 - 1640.00 4012 Buckingham Road Discharged : 10/95 Claim Amount Baltimore, Maryland 21207 S 19,480.00 Autumn Senior Living (En-Company) Admitted : 11/28/95 R Security & First Month Paid : S 1,400.00 110 Neel Avenue emoved : 12/02/96 Cost Per Month Paid : 7 @ $ 1,650.00 Glyndon, Maryland 21136 1 @ $ 1,680.00 4 @ S 1,750.00 Claim Amount: $ 21,630.00 Vann Senior Living 12 Cedarhill R d Admitted : 12/03/96 Cost Per Month Paid : S 1,850.00 oa Randallstown, Maryland Died :10/25/97 Claim Amount : S 20,350.00 Claim Total: S 61,460.00 If any additional information is required please advise. A Death Certificate and a copy of "Letters of Testamentary" are enclosed. Please make the check out and mail as follows: Estate of Kenneth Earl Reaka 42 Alfred Drive Lewisberry, PA. 17339 Respectfully,(? C`o l.? ti i I?-A Sandra M. Reaka Executor EXHIBIT 'f ?t a A WfRPiaraiwnailii' Adgm 1714 i/ELLERS /FE /AIS reAArre rOh?PAhY A Csrrror Gyap Moms &N".* arrlNam, PA • An We haamm Company h cA Parry hearfb DaPnenmC PO bx 6d9q • CMea9e, It 606660919 NURSING FACILITY CLAIM FORM Claim Information: 1.800""-3978 1 - This form must be and 2. Sign and Date the Pati Ys auuthoriza and signed by ion below. THIS A Your UTHORIi7ATION UST Brsi SIGNE I ND DATED BY THE INSURED. If signed by a Power of Attorney, Pie=* attach a eoDY Of the P.O A. nursing facility. AGREEMENT, 3. Attach a copy of the hospital bill or Medicare Part A Statement for confinement Immediately preceding admission to 4. Attach complete copy of itemized billing statement from nursing facility (we do not accept advance billing). PATIENT'S AUTHORIZATION I hereby authorize all ph sicians, hospitals, clinics; medical practitioners, disp agency to pperrmit AMERICANITRAV IELLFAS LIWJATL LIE NSURANCE COMI review a copy of your records pertaining to the examination, treatment, Mato. the undersigned. A photostatic copy of this authorizatiori'shall be as valid as OATE SIGNATURE X Your state requires us to notify you that: Any person who, knowingly and w company or other person, files an application for insurance or statement of ci information or conceals for the purpose of misleading, information concerning fraudulent insurance act, which Is a crime and subjects such person to crimim as, nursing homes or other medical Shield), employer, or governmental or its representative to obtain or ascription and medical expenses of POLICY NUMBER th Intent to defraud any insurance iim containing any materially false any fact material thereto commits a L and civil penalties. TO BE COMPLETED BY NURSING FACILITY: 1. Patient's Name: _ Kt nit o-4% Q P U c _ Mailing Address: 2. Name. Address and Phnnw 3. 4. Federal Tax 5. To which p, 6. Describe as to your facility by the state 0 7 0 mbar of beds: _ • . , ..,,e mwsny P"mamy engageo in providing, in addition to room and board accommodation, sallied nursing care under the supervision of a duly licensed Physician? Yes ? No 8. Does this facility provide continuous 24-hour-a-day nursing services by or under the supervision of a registered gra?uati professional nurse (R.N.) or licensed practical nurse (L.P.N.)? ` Yes 2r No ? RN on staff 88 hrs. per day LPN on staff hrs. per day RN on call hrs. per day LPN on call _ hrs. per day 9. Is your facility approved for Medicare 8aneffRS? Yes ? No C- 10. Is patient's stay Medicare approved? __ d If yes, what dates did Medicare cover? 11. Are daily medical records maintained on each patient? Yes / No 12. Does facility maintain written physician's orders on each patient? Yes E 13. Is it a requirement of this facility that patients be admitted on the specific recommendation of a currently licensed physician? Yes ? No Gl 14. Name, address and phone number of admitting physician: 15. 16. 17. Date: 14 'L7-9 V Administrator Signature: AT-4-PA Senlor•Asaist"ed Housing To Whom it May Concem: Total fees paid to Elesy Manor Inc. by Mr. Kenneth Reaka for assisted living care are as follows: Sep-94 $ 1,800 Jan-95 $ - Oct-94 ' 1,600 Feb-95 1,600 Nov-94 1,800 Mar--95 1,640 Dec-94 1,800 Apr-95 1,640 Total 1994 $ 8,400 May-95 1,640 Jun-95 1,640 Jul-95 1,640 Aug-95 1,640 Total 1995 Sep-95 1'640 $ 13,080 Grand total paid $ 19,480 Sincerely, Q " Brenda L Street, RN Administrator 4012 Buckingham Road, Baltimore, Marv4and 21207 410.484-0814 DEPARTMENT OF HEALTH AND MENTAL HYGIENE 4201 PATTERSON AVENUE • BALTIMORE, MARYLAND 21216.2289 Parris N. Glendening Martin P. Wasserman, M.D., J.D. Governor August 25, 1998 Secretary Ms. Darlene lane) 218 Bond Avenue Reisterstown, Maryland 21136 RE: AUTUMN SENIOR LIVING 110 NEEL AVENUE GLYNDON, MARYLAND 21136 Dear Ms. Israel: 11w ism response to your telephone conversation with Ma Laura Nottingham, Managa of the Assisted Living Complaint Unit, regarding the written complaint that you filed with this Office on January 30, 1997, on behalf of your late father (K1L) who was a former resident at dre above referenced address On January 15,1997 an on-site visit was conducted by a surveyor from Licensing and Certification at 110 Neel Avenue, Glyndon, Maryland. Although your father had been relocated from the home, staff at the facility confirmed that your fitha was a forma resident at die address. The surveyor was unable to validate the allegations during the January 15, 1997 visit. However, this does not suggest that the situation did not occur as you described it Records in this office reveal dart the registration permit at the facility was issued to Mr. Carlton Holloway who had moved ftom the home. In October of 1996 Mr. Holloway sent a letter to this Office informing us that he was no longer associated with Autumn House. However, he failed to relinquish the registration permit During the on-site visit, a staff person at the home voluntarily surrendered the permit to a surveyor from this office. If you have any questions, please contact sex at (410) 764-3755. C, sly yours, estine A. Williams ?` Survey Coordinator Long Term Cue Licensing and Certification Administration EAW:met cc: Laura Nottingham Registration File File c:\wp61\ismel Too FOR DISABLED MARYLAND RELAY SERVICE i-SW-?M•22SS 1' DARLLENE REAKA 6994 417 REOEIIVOIR ROAD ?r/???? ? MECHANIC-881.11110. PA 170564147 `10 14 Alt $ ordercf 01 4 Dollar 4 (e Mello Bank M4/maN?? I L.lLl11'Jla I.1o.?a /? /f O D +:03 i????i:00NN//84??2 3065275w 96994 ,r00000550004' I r KENNETH E. REAKA 7018 DARLENE REAKA-ISRAEL 417 RESERVOIR ROAD 'Ji MECHANICSSURG. PA 170556147 y S. ' . Pay to the orders 1 m0, _J $ 3'so. . D o l l a r, J Melton Bank - . -0 IIM, WI.Mi C??Y,yr )mo 550.000+ 103L30082W L42 L06527510 97OL13 ,11000008500010 850.000+ 11650.000+ 19650.000+ 11650.000+ 19650.000+ 19650.000+ 19650-00r.)+ :NNETH E. REAKA 7023 1,650-000+ RLENE REAKA-ISRAEL RESERVOIR ROAD ?q Qr/ M'= f4 1 , 680 • 0011+ +HANICSBURG. PA 170556147 TJC6S...--101LL 791 19750.000+, Vto the $ *MOD 19750.000+ 1 9750.000+ Ieror SL ,A ?11 l ancj 6r a 11750.000+ Uut o t a ? Mellon Bank 219630-000* YY, MY.Nl Nrp`y?.?M • r? ?d, fLt? MA ? 1/?? /y (?1J G(?JC n o ? o&6 r 4 . _ Y h 03L300820: L42 Lp 65275uN 97023 mooooOL650001r Pay to the order of _ $ 1:03&30082&I: 1,42 1,06527564 9703& ,o0000&65000- KENNETH E. REAKA 7043 DARLENE RE4KA•ISRAEL 417 RESERVOIR GOAD CLI MECHANICSBURO, PA 17055.0147 19 0i7 414 ile oorrder of $ !(Q60' &b - -- DI PA .h r s ® Mellon Bank N XL Memo & l' i /J C RDL?Ae alt e4_- I`fS-t LL 1:031300820: 1,42 1,0652756' 97043 .00000165000.0 KENNETH E. REAKA 705q DARLENE REAKA.ISRAEL 417 RESERVOIR ROAD MECHANICSSURO, PA 1705s6147 7/ ma ? 19 1 ?1% Pay to the order of _ W , D 0/11 vCCVs © Mellon Bank Wr YY.NA, Ly) Me A ?? ne-i.y_L0A Q ? /w._ 1?.?1714 X 1:031,300820: &42 &0652756' 97055 100000&650004x4 KENNETH E. REAKA /L`W f•? Y201- /f. As ?703 DARLENE REAKAd8RAEL 417 RESERVOIR ROAD MECHANICSBURG, PA 170060147 19? ' 64 DARLLENE REAKAR $RAEL ?; ,SOS 417 RESERVOIR ROAD MECHANICSBURG. PA 1705"147 q 3 Pay loth l1 1 rr e _ 1 taw _ .. . M - -y - - w v I i yr7v Mellon Bank U? Memo rte, 20 /10Oe /CATt?? 1:03130082&1: &42 106S27Sa' 970S610000016S0001' DARLENE AEA SKA I RAEL 417 RESERVOIR ROAD 708 MECHANICSBURG, PA 17W6A]17 7-rU 19* POV to the Ortlet of - •-- I I c r ? ® Mellon Bank . Mem 1:0313008211: &L.2 106 S 2 7 Sul q 7080 8110000 & 6 S00011' RUNNETH E. REAKA DARLENE REAKA,ISRAEL 417 RESERVOIR ROAD MECHANICSBURG, PA 17055.6147 Pcy to the order or- ® Me110n Bank Memel%??""r-/ 1:03130082&1: &1,2 1065 n 7082 L'? a 19v7 / 7?+t1 1 $ 1&6v, CYZ> 2 7 Say 9 709 2 ,10000 & 6 5000,11 KENNETH E. RUM 71 7 DARLENE REAKAaERAEL 417 RESERVOIR RDAD 7444= MECWWIpBURq, PA 17p64147 D?4 `- Ig1pB21{ In ^=?1 I ..?.1R.?, 1 -.61 ® Mellon Bank 1 7 4??rsw.¦'4' r i "Aem? I vlo _ 42'I L a $ r 1:031300&2&1: L4 2¦11 111 ?? 106 5 2 ? Su ?&0? .00000 L 68000,' :A• KENNETH E- REAKA DARLENE REAKA-ISRAEL 417 RESERVOIR ROAD 7084= MECHANICSBURG, PA 170664147 7122 ader?a 7 -- - $17.°a ;; gat h of 6 ® Mellon Bank Memo ' X 1?WUL ?a ILK. r 1:0313008211: L1.2-L0611152?51' 7122 ,oo000L?5000.0 KENNETH E. REAKA DARLENE REAKA-ISRAEL 7139 417 RESERVOIR ROAD 76643M MECHANICSBURG, PA 17065-0147 ?-4 14 Date Pay ? _ 14210MM Ord(I O e 7` a""'DOIi rI ® Mellon Bank .1.11..40E ¦1 tnw'rr'r¦?.?1? r MBR1D -_1? L13?1Y ?.L?SI? r 1:03&30082&1; 142111106111S2?511 ? 7139 ,000001?5000,' KENNETH E. REAKA 7152 DARLENE REAKA•18RAEL 41? RZSEAvm EdMN .PPA 17CM147 Date 7? M 111M75711 =100tt!Q X1.1 / d'laO267717 4 i 5 O 7 5678 - . ,. ,,•• • > ® M911W Sank ws'?re y. _ r 's •03&30082&1: 14210&061115275B' 7&52 010000 & 7 5000x' KENNETH E. REAKA 7166 DARLENE REAKA•ISRAEL 417 RESERVOIR ROAD 705= 904 & MECHANICSBURG. PA 1705HI47 313 Dat 112101677b tof $/7SD. OV M WAD ® Macon sank n??or./?.strttu. - r - IRJ?X ?L r mwo- - 1:03&30082&1: &421w&0611-527581 7166 ,il0000&75000?p AMERAr.4N TRAVELLER. c LIFE WSUROINCE COMPANY A Ca CW"7 Maee OI6n: awMwr, PA • A7L We 6wurann Cx,pavr h C4 Poft Aineft Depsn"wr. PO Rox 66949 • CNeapo, K 60666-0949 NURSING FACILITY CLAIM FORM Claim Information: 1-600441-3978 1. This form must be fully completed and signed by You, your Physician, and the Nursing Facility. 2. Sign and Date the patient's authorization below. THIS AUTHORIZATION MUST BE SIGNED AND DATED BY THE INSURED. If signed by a Power of Attorney, please attach a copy of the P.O.A. AGREEMENT. 3. Attach a copy of the hospital bill or Medicare Part A Statement for confinement immediately preceding admission to nursing facility. 4. Attach complete copy of itemized billing statement from nursing facility (we do not accept advance billing). PATIENT'S AUTHORIZATION 1 hereby authorize all physicians, hospitals, clinics, medical practitioners, dispensaries, nursing homes or other medical or medially related facilities (including other insurance companies, Blue Cross-Blue Shield), employer, or governmental agency to permit AMERICAN TRAVELLERS UFE/ATL UFE INSURANCE COMPANY or its representative to obtain or review a copy of your records pertaining to the examination, treatment history, prescription and medical expenses of the undersigned. A photostatic copy of this authorization shall be as valid as the original. POLICY r p DATE • SIGNATURE X NUMBER Your state requires us to notify you that: Any person who, knowingly and with intent to defraud any insurance company or other person, files an application for insurance or statement of claim containing any materially false information or conceals for the purpose of misleading, Information concerning any fact material thereto commits a fraudulent Insurance act, which Is a crime and subjects such person to criminal and civil penalties. TO BE C MPLETED BY NURSING FACILITY: 1. Patient's Name: Mailing Address: Wn 7 2. Ny{n0 Address d one Number of Nursing Home: Ec6t..?a-?N ?t. r 3. Flom give type,91 09W* andr{cen* gymbgrrihaj wa , igugd_ to, your facility by the state 4. Federal Tax I.D. : ftdA r e4,td S 5. To which gprdon of facility is is patient con??finppdd? S. Describe services provided to this patient. ZAA- 7. Is this facility primarily engaged in providing, in addition to room and board accommodation, skilled nursing care under the supervision of a duly licensed Physician? Yes No'L 8. Does this facility provide continuous 24-hour-a-day nursing services by or under the supervision of a registered graduate professional nurse (R.N.) or licensed practical nurse (L.P.N.)? 11? Yes ? Nol;_? RN on staff •??/ hrs. per day LPN on staffhrs. per day RN on call ,iw?.r hrs. per day LPN on call hrs. per day 9. Is your facility approved for Medicare Benefns? Yes ? Nop' 10. Is patient's stay Medicare approved? . If yes, what dates did Medicare cover? 11. Are daily medical records maintained on each patient? Yes No ? 12. Does facility maintain written physician's orders on each patient? Yes No 13. Is It a requirement of this facility that patients be admitted on the specific recommendation of a currently licensed h sician? ? p y Yes No yf 14. Name, address and phone number of admitting physician: i r n 1 15. nlanla. addfue wnA nMnnw n,,,nlue n1 wnwnAinn nMvNn:sn• , SZ'?u / 16. 17. Date: _ y i YI q Admininst r Signature: AT-41PA TO BE COMPLETED BY ATTENDING PHYSICIAN: 1. Patients Name ATTENDING PHYSICIANS STATEMENT DOB ?-9' .a2p 2. DUN of Hospital Confinement, if any: Admit Discharge 3. Name, address and phone number of hospital: 4. Hospital Diagnosis: 5. On what date did you first attend patient for the condition necessitating Nursing Home Confinement? Datels) you personally attended the patient% 4-7 S. Brief Medical History and Prior Treatment brdud/ny dots condidon was Arst dispiosed.- 7. Name and physician, if any: B. Admitting diagnosis to the Nursing Home: __ &. E .4r.,-, Is treatmem continuing for admitting diagnosis: Yewd No ? 9. Twee of are Certified Stalled From: To: Intermediate From: To: Custodial From: Other (specify) From: - To: 10. Does padant require assistance with Activities of Daily Living ( DL's)? es d No ? If yea, please indicate which ADL's n>6:/, ?_, Remarks: Date: Signed: AP4,-IrrA (P cian) Address: kS' In.? nsG?ya? ,? City: State: 21 Zip: 9-/?Ljk-_ Phone s: 0 16 v)- 6 `!i t b Fee for medical records il; Please provide your FEDERAL TAX I. D. S-aUb ?-I" 0 Cow" Oa 11AUVA b PA • An, l!h Mrurwo Carawry h CA ft DIPa" or: PD Box Casa • CAkeae, 1t 60666-0949 r 1400.441.3978 SUPPLEMENTARY NURSING HOME CARE ATTENDING PHYSICIAN STATEMENT IN ORDER TO EXPEDITE THE PROCESSING OF YOUR CLAIM, PLEASE HAVE THIS FORM COMPLETED IN FULL AND SUBMITTED WITH YOUR MONTHLY BILLING STATEMENT. 1. Policy Number(s): 3. Mailing Address: TO BE COMPLETED BY INSURED ??pp 2. Full Name of Insured: it, ri t ?1 Arl 4. PATIENT'S AUTHORIZATION. I hereby authorize all physicians, hospitals, clinics, medical practitioners, dispensaries, nursing homes, or other medical or medically related ffg?cillties (including other insurance companies, Blue Cross-Blue Shield), employer, or governmental agency to permit AMERICAN TRAVELLERS LIFE/ATL LIFE INSURANCE COMPANY or its representative to obtain or review a copy of your records pertaining to the examination, treatment, history, prescription and medical expenses of the undersigned. A photostatic copy of this authorization shall be as valid as the original. DATE SIGNATURE X (Claimant) Your state requires us to notify you that Any parson who, knowingly and with intent to defraud any insurance company or other person, f las an applleadon for insurance or statement of claim containing any materially false information or conceals for the purpose of misleading, Information concerning any fact material thereto commits a fraudulent Insurance a", which Is a crime and subjects such person to criminal and civil penalties. 1. Date Admitted to Nursing Home: fir'/ 5 -7 Date Discharged: ?b Name and address of Nursing Home: 2. Admitting diagnosis to Nursing Home 3. Is treatment continuing for admitting diagnosis: AR Yes 4. Date(s) you personally attended the patient: '_ 5. Dates of Hospital confinements, if any: From: Name and address of Hospital: _ 6. Type of Cared Certified Skilled: From: Intermediate: Custodial: Other (specify): To: To: From: To: From: Ile? l To: U?;tS IC7 From: To: 7. Please indicate if level of care changed from time of admission and if so when? 4. i. Give Details: S. If Skilled Care is still indicated when (a) tranferred to Intermediate Care . (b) transferred to Custodial Care _ (c) discharged Remarks: /J Physician's Name: 0`Zvk*-1T J?? > MD/DO Federal Tax I.D. # S /?65? V Physician's Signature I Date: Address: P4 W Ir. 45Z/State: r- i AT-2-PA will patient be: ? No Zip Code: rd ??Jl t KENNETH Rf AKAJ s.el 7185 Paroffr V! Do,.1 3. X99/0 &313%' V 400M i.--_Q-- ?IIOrsj& fdemo e . 1:031300B21f: 142-1OgmS275r' 7385 0'000016850000' Mellon Bank - - --v . s 704= 170554147 Dote Jz - ?fu u110mm KENNETH E. REAKA 719 9 DARLENE REAKA-ISRAEL MECRANICSOOM. PA 170554147 pole LR '9 7 "0 u7 omm 1 the order 10f I us n 4 ? _ L t)-d ? a .. -1..P. O'.?/1 [III ..,•?"-.?? fF??J 167 4L52 ?"l;? I ©i Mellon Bank mer1,o` i?. eJ<e r?ra e? r 1:03i300821f: i42111i06rsr5275ii" 7199 O000OOL850000' W mmmi MQI7r. w? w Oa r Memo ad-Pon 4 ?C 1:03 30082&1: 1642-&OG 15275N 7193 0'00001850000' MIJ 117 711 IMMICeR6p, PA 17MM47 Dote 7 46 KENNETH E, REAKA- • 7248 -DARLENE REAKA46RAEL- 41711EHD1YO/I ROW 7660766 .. MECHANCSOLFAL PA 170660147 Date 16710M KENNETH E. REAKA _ 7256 DARLENE REAKA,4SRAEL - 07 RESERVOIR ROAD 7060776 7617 MEQIANICBBURp. PA 1706661/7 D01 7 6u u 17R6D77 ©i Mellon Bank Metro ?( ZS6 K?C r -1:03&3008211: L42@r&06µ52756/ 7256 ,00000WS000.0 M6mo ?..?T ..,.... dX . r -J:03330082L1: L42@eL06N5275r 7230 joO000i8500010 (® MYROn BanK R=12t6r r ?w Menq 7 yMdr1/?Q ?j?'S{(A 1 Q r 1:03L30082i1: L42-L06-527SM 7248 013OOOL85000.0 KENNETH G REAKA nom? 7214 D A4SRAEL 417 ARER O REAK PA 7 S 'y u MECHANICSBURG. PA 17066#147 ? fe 9 , Dots L Poytoa11ro order _ $ /gSD, OD . v ---...a - - ?"?D011lIfimC.? ® MNlon Bank mm- 1:03&3008211: 0,2„1106-5275R• 7214 ,140000haS000,11. KENNETH E. REAKA DARLENE REAKAdSRAEL 417 RESERVOIR ROAD 7866728 MECNANICSBURG. PA 170566147 y ?,O,iOL46t74 400 tO1B (1(5[/1/1 C?C*y9f ?irf7n 1 a - 72641 313 / i4S71 ' i5 04 47 7 r6 Malfon Bank ,.4 . - Mer1>D r 1:0 3 1 3008 2 1,1: i4 2111 10 6-5 2 7 511' 7264 ,00000185000,1' KENNETH E. REAKA 7294 IIIt D 417 A REEF Eo R ROAD 76e&SM 14 i MECHANICSBURG• PA 17055-6147 Owe / lyiB .ymy ' POVtOt,,e O de OI_ Mert1o 1:0311300820: 1 4 2111 1,0 611 5 2 7 5R' 729t, .00000 18 5000,1' STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICAT: 1, MARY C. LEWIS Register for the Probate of Wills and Granting Letters of Administration ic. in and for said County of CUMBERLAND do hereby certify that on the 4th day of February A.D., one thousand nine hundred and ninety seven. Letters TESTAMENTARY in common form were granted by the Register of said County, on the estate of REAICA KENNETH EARL , late of UPPER ALLEN TOWNSHIP a/k/a REAKA KENNETH E in said county, deceased, to SANDRA MARIE REAKA Ti, NLUULET- and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 4th day of February A.D., one thousand nine hundred and ninety eight. File No. 1998-00112 PA File No. 21-98-0112 Date of Death 10/25/1997 0, ---Register S.S. # 576-24-5121 NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL VALID ONLY WITH IMPRESSED SEAL DATE ISSUED: o 3 01?9?1 1 HEREBY CERTISY•THAO"THErA.', jACHED IS A TRUE COPY OF A RECORD"ON FILE IN THE D1NON'OF VITAL RECORDS. SiATE REGISTRAR OF VITAL RECORDS 1-005 Please Type or Print In Black Indelible Ink. Assure All Copies An Legible. •1 REAKA State of Maryland / Department of Health and Mental Hygiene Certificate of Death INnANO -?..c r.aw.. any __ 2. Dole d Olaf - J Tina of Deab Kenneth Earl Reaka IO ll,a .?25 1997 153(1 P VON, RNMrdANr pye9NF a" ramane../ '-___...._... _ _.-_. -4n.iM ia,n mlontknd DF.m 12 CEDARHILL LANE • I C. County d NAM - - e. eaoM eeaeey NMnINr e. 76 245121 -.. . -.-. - 7. Ap Onm. Nn eMfNer! Y- J .iM. t M eor 77 rN 6ata - a M DA RAN N l:- .. lhde!!7 Hr:. 0. Neu (.R, I r. f Mh. l . BALT _ q r.vrq ' h IMJRE c#ISIaN aFarFbn I '^ a - uw-aa;,.d.nt . I {larch 26. 1920 yl Kansas Ib. aisle tab. 6.1y lde. CM. Town a Lpwtkn Maryland Baltimore I Randallstown tod. 61" CRY Lbee tore, 201110 Ioe 91r,M and NYfba Id. Zb code lop. Cellar, d VMat CouMy7 __...__12_Cedar Hill Road 21133 (United States 11. AlareW aaM t N t2. W FDgdenl Ern Yt U,e. tJ. We, D*wdenl of HNpnk DIg 17 (Specify Yes or No- NYes. op" Cdwn, Medan PUale Rkm ap ) 11. how • Amakan Won, O aa NOW 20 MadeO IBYn 20NO a7 , , . 1 wale. Wipe, Me. 319 WMOwad 1OONwwe - ----.... _- n K veerwate.: .WW2-64 tOYes 2RNe speeNy: swc*: White e _12.- . 1 . 17. FMWe New, MMIL. Aab1M, LAW) mO,NIM1 la. Dendan'a u,u.i OCCUpellerr I lab. NYgdeueeNeWhdunry (DM ehdd wpa dew MYp NwI d wwahp CaNP (tww sal. We. DDMDiu»rW1ud1 Accountant T R W a. MWMr. Nerve (FN,r. Mass, Al rden Sw ) 1 __......_ _.. Earl Reeks Della Fitch '!? Ik Mdamanpa NemWRNWbn,bb lTjp,. RiMI._ _ _._. 1%.M.ehp MMe,e(SlrMewNUmwrw Rw.IRade NUnWr, CRY" Twn, sloe, ZbcpdeJ R Mrs. Darlene'#Israel (Daughter) 1218 Bond Avenue Reisterstown, MD 21136 II Ae.IMpwdd Meweebn lob Paw of Dl,waeNn Maned Dale 24. ow Ctly a Twn. $NN ?e 119euY1 20Cnmelbn JORalgvWlrem Sltle wmetay, aMJ•wtery Mr awl to 97 Pennsylvania lnUl- tT Lis eaDwnw sooma(sy.ay) pt. In "a towan Gal Pr ! November 3, 1 1 * pl. 81prNN d Fawcett SNVke LNMMe NationalJ2.N e meapie and Addr 5 al FeaFry lE Wring yers neral Directors, Inc. 8728 Liberty Road Raodallstown, MD 21133-4784 He., W:a :.. ?aPkalkn.lnawnad Me deaf. 00M WIN, ]he mod,ddylV. aucb.a wrdlac w ra,alratory areal. Appo,Yn.N w Nhrre. LlW fly w cam en aadl M. Inenal pNwaM Dn,a andOwf eeM1wa&a Come(Fhal rwWnpilw.fj" F.. Arteriosclerotic Cardiovascular Disease Due le (w a, a cws,avawe dl: 77 •Owel ftY1?164%pd*. •M4pl1fiMM OM•66606- iwpM dit 6mueat plrY a:: {?;. •iApNYY?*,eY•YiwiY??MM?/r?weMYeS?. ay?ab?e? American Travelers Life Ine;Co 1800 Street Road o e 6 bfc gtic -4 a s g? CCCC?i [4 M ? 1Iq? 9 m w > ° a ? g N Oy w u v j $C Y Yd r C d 4 3Pw° is = Op¢F 3 SS ? SyS y °?i p d 3 C 4 P ? 9, a g ? 3 L v L a4 COOL 4~0086 Uuad Sd ? • AMERICAN TRAVELERS LIFE INSURANCE COMPANY ATL Life Ieuereeee Cempeey in CA • Rowe o,09es Raudew, PA PO&7 Rese/itr Dept: PO Box 66949 - Chkge, IL W66-0949 Tekpkooe: 1469.4414971 ESTATE OF REAKA KENNETH E 42 ALFRED DR LEWISBERRY PA 17339 PATIENT NAME: REAKA KENNETH E REGARDING: 142681A EXPENSE(S) SUBMITTED: ELESY MANOR IN^- AUTUMN SENIOR LIVING VANN SENIOR LIV Dear Kr Reaka: 9-1 TO 10-I 11-28 TO 12-2 12-3 TO 10-25 December 15, 1998 5111 760532-1 ATL As explained under the "Proof of Loss" provision of your policy, proper proof of loss must be received within ninety (90) days of the date of loss. Since we did not receive proof of loss within this time period, benefits are not eligible for this service. We have voluntairly extended the filing period to one year and 90 days after the calender year in which the expense was first incurred. If you feel there are other facts that we should consider, please write: American Travellers Life Insurance Company, Claim Review Department, at the above address. Policy Benefits Department -Vygq IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff v. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, NO. 99-4844 JURY TRIAL DEMANDED Defendant PRAECIPE FOR APPEARANCE ENTER MY APPEARANCE as counsel on behalf of the Defendant, American Travelers Life Insurance CompAwnptin the above-captioned matter. Mark H. Scoblionko, Esquire Atty. I.D. #08070 40 South 5th Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 r ?•? r V: U O1 j ?? U N W w °n z .. W W < Z Y Q O 1 . y Y ; Z 0 n N 0 W n ?dn 0 0 IL f uu NN3++uo•eoauonwrn?o•m3mw :aN wro, ']NI'IYXOIlYNtl31NI,ltYLT11Y i0 NpSUW YhM3131Y1c `•? QF" - ') SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 :CIVIL ACTION-LAW JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT RESPECTFULLY SUBMITTED: Zt??_ - William C. ollas, Esq. Supreme Court I.D. No. 06341 James W. Kollas, Esq. Supreme Court I.D. No. 81959 KOLLAS & KENNEDY 1104 Fernwood Avenue Camp Hill, PA 17011 (717)731-1600 ATTORNEYS FOR PLAINTIFF Date: /i 9/17 TABLE OF CONTENTS TABLE OF CITATIONS .......................................... i 1. HISTORY OF THE CASE ......................................... I II. STATEMENT OF FACTS ................................. ....... I 111. STANDARD OF REVIEW ........................................ 2 IV. ISSUES PRESENTED ............................................3 1. DOES PENNSYLVANIA LAW RECOGNIZE A CAUSE OF ACTION IN GOOD FAITH AND FAIR DEALING IN THE CONTEXT OF INSURANCE? SUGGESTED ANSWER IN THE AFFIRMATIVE. 2. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIMS OF MISREPRESENTATION? SUGGESTED ANSWER IN THE AFFIRMATIVE. 3. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW? SUGGESTED ANSWER IN THE AFFIRMATIVE. 4. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT CLAIMS FOR ATTORNEY FEES AS ALLOWED BY THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW AND BY PENNSYLVANIA'S BAD FAITH STATUTE? SUGGESTED ANSWER IN THE AFFIRMATIVE. 5. DO PLAINTIFF'S CAUSES OF ACTION FIND ADEQUATE FOUNDATION UNDER PENNSYLVANIA CONTRACT LAW, PENNSYLVANIA TORT LAW, AND PENNSYLVANIA STATUTORY LAW? SUGGESTED ANSWER IN THE AFFIRMATIVE. 6. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF PENNSYLVANIA'S BAD FAITH STATUTE? SUGGESTED ANSWER IN THE AFFIRMATIVE. V. ARGUMENT .................................................. 3 1. PENNSYLVANIA LAW RECOGNIZES A CAUSE OF ACTION IN GOOD FAITH AND FAIR DEALING IN THE CONTEXT OF INSURANCE. 2. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIMS OF MISREPRESENTATION. 3. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. 4. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT CLAIMS FOR ATTORNEY FEES AS ALLOWED BY THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW AND BY PENNSYLVANIA'S BAD FAITH STATUTE. 5. PLAINTIFF'S CAUSES OF ACTION FIND ADEQUATE FOUNDATION UNDER PENNSYLVANIA CONTRACT LAW, PENNSYLVANIA TORT LAW, AND PENNSYLVANIA STATUTORY LAW. 6. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF PENNSYLVANIA'S BAD FAITH STATUTE. VI. CONCLUSION ................................................ 14 TABLE OF CITATIONS Cases: Banker v. Valley Forge Ins Co., 401 Pa.Super. 367, 585 A.2d 504 (1991) ................................ 4 Bash v. Bell Telephone Co. Of Pennsylvania. 411 Pa. Super. 347, 601 A.2d 825 (1992) ................................ 2,10,1 1 Brownell v. State Farm Mut. Ins. Co. 757 F.Supp. 526 (E.D. Pa. 1991) ...................................... 8 Dercoli v. Pennsylvania Nat. Mut Ins Co., 520 Pa. 471, 554 A.2d 906 (1989) ..................................... 4 Fay v. Erie Ins. Group, 723 A.2d 712(1999) ............................................... 2 Gilderman v. State Farm Ins. Co.. 437 Pa.Super. 217, 649 A.2d 941 (1994) ................................ 4 Gordon v. Pennsylvania Blue Sheild. 378 Pa.Super. 256, 548 A.2d 600 (1988) ................................ 2,12 Great West Life Assur. Co. V. Levithan 834 F.Supp. 858 (E.D. Pa. 1993) ...................................... 8 Grode v. Mutual Fire. Marine. and Inland Ins. Co., 154 Pa.Cmmwlth. 366, 623 A.2d 933 (1993) ............................. 10,11 Gruenberg_v. Aetna Ins. Co.. 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973) ..................... 4 Johnson v. Hyundai Motor America. 698 A.2d 631 (Pa.Super. 1997), appeal denied, 551 Pa. 704, 712 A.2d 286 (1998). 7 Hardy v. Pennock Ins. Agency Inc.. 365 Pa. Super. 206, 529 A.2d 471 (1987) ................................ 8,12 Keller v. Volkswagen of America, Inc., 733 A.2d 642(1999) ............................................... 8 i McClellan v. Health Maintenance Organization of Pennsylvania 413 Pa.Super. 128, 604 A.2d 1053 (1992) ............................... 6,7 Mov v. Schreiber Deed Sec Co 370 Pa.Super. 97, 535 A.2d 1168 (1988) ................................ 2 Neuman v. Corn Exchange National Bank & Trust 356 Pa. 442, 51 A.2d 759(1947) .................. .................... 6 O'Donnell v. Allstate Ins. Co. 1999 WL 436697 (1999) ........................ .................... 14 Parasco v. Pacific Indem. Co. 870 F.Supp. 644 (E.D. Pa. 1994) .................. .................... 8 Phico Ins Co V. Presbyterian Medical Services Coro 444 Pa.Super. 221, 663 A.2d 753 (1995) ............ .................... 10,11 Pirozzi v. Penske Olds - Cadillac - GMC. Inc.. 413 Pa.Super. 308, 605 A.2d 373, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992).7 Raab v. Keystone Ins Co., 271 Pa.Super 185, 412 A.2d 638 (1979) ............. ................... 4,10,1 1 Redevelopment Authority of Cambria Count v International Ins Co 454 Pa.Super. 374, 685 A.2d 581 (1996) ............ .................... 10 Wright v. North American Life Assur. CCo., 372 Pa.Super. 272, 539 A.2d 434 (1988) ............. ................... 8 Statutes: 42 Pa. C.S.A. §8371 ............................................... 9,12,13,14 73 P.S. §201- et seq ................................................ 7,9,12 I. HISTORY OF THE CASE This case involves an insurance policy between Decedent, Kenneth E. Reaka, and Defendant, American Travelers Life Insurance Company. Plaintiff, Sandra M. Reaka, as Executrix of the estate of Kenneth E. Reaka, filed a Complaint against Defendant on August 11, 1999. Defendant filed Preliminary Objections to the Complaint on September 3, 1999. In Response to Defendant's Preliminary Objections, Plaintiff filed an Amended Complaint on September 20, 1999. On September 28, 1999, Defendant filed Preliminary Objections to Plaintiffs Amended Complaint. Argument was set for December 8, 1999. Plaintiff's Brief follows. II. STATEMENT OF FACTS This case involves an insurance policy issued on or around August 7, 1989, between Kenneth E. Reaka and American Travelers Life Insurance Company. Under the terms of said policy, Mr. Reaka was entitled to seek benefit payments from American Travelers Life Insurance Company for expenses incurred during periods of confinement in nursing home facilities and home health care following said confinement periods. In the last years of his life, from 1994 to 1997, Mr. Reaka sustained several injuries which required him to seek confinement in nursing home facilities. He also received home health care following his release from the nursing homes. For these injury-related periods of confinement and treatment, Mr. Reaka was entitled to seek benefit payments owed him through his policy with American Travelers Life Insurance Company. However, due to his injuries and subsequent loss of recollection, Mr. Reaka was incapable or unable to communicate the terms and nature of the policy to his agents and did not submit his claims. Mr. Reaka died on October 25, 1997. Between the end of December 1997 and mid- January 1998, Mr. Reaka's daughter and Executrix, Sandra M. Reaka, found the policy among Mr. Reaka's possessions. Within a reasonable time of discovering the policy and discerning its nature, Ms. Reaka telephoned American Travelers Life Insurance Company and gave verbal notice of her claims as owed to Mr. Reaka's estate. After gathering information requested by American Travelers Life Insurance Company concerning the various nursing homes, Ms. Reaka sent written notice of her claims to American Travelers Life Insurance Company on November 12, 1998. By letter dated December 15, 1998, American Travelers Life Insurance Company rejected Ms. Reaka's claims as untimely and breached the terms of the policy. III. STANDARD OF REVIEW Defendant's preliminary objections are in the nature of a demurrer. In judging a demurrer, all material facts, as well as all inferences reasonably deducible therefrom, set forth in a complaint are admitted as true. Fay v. Erie Ins. Group, 723 A.2d, 712, 714 (1999), Bash v. Bell Telephone Co. Of Pennsylvania, 411 Pa Super. 347, 354, 601 A.2d 825, 829 (1992), Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 259, 548 A.2d 600, 601(1988), Moy v. Schreiber Deed Sec. Co., 370 Pa. Super. 97, 101, 535 A.2d 1168, 1170 (1988). The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Gordon, 378 Pa. Super. at 259, 548 A.2d at 601(citing Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427, 429 (1986)). If there is a doubt regarding a demurrer, then the demurrer should be denied. Fav at 2 714. Because the Plaintiff will show that recovery is possible for the reasons that follow herein, Defendant's preliminary objections in the nature of demurrer should be denied. IV. ISSUES PRESENTED 1. DOES PENNSYLVANIA LAW RECOGNIZE A CAUSE OF ACTION IN GOOD FAITH AND FAIR DEALING IN THE CONTEXT OF INSURANCE? SUGGESTED ANSWER IN THE AFFIRMATIVE. 2. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIMS OF MISREPRESENTATION? SUGGESTED ANSWER IN THE AFFIRMATIVE. 3. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW? SUGGESTED ANSWER IN THE AFFIRMATIVE. 4. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT CLAIMS FOR ATTORNEY FEES AS ALLOWED BY THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW AND BY PENNSYLVANIA'S BAD FAITH STATUTE? SUGGESTED ANSWER IN THE AFFIRMATIVE. DO PLAINTIFF'S CAUSES OF ACTION FIND ADEQUATE FOUNDATION UNDER PENNSYLVANIA CONTRACT LAW, PENNSYLVANIA TORT LAW, AND PENNSYLVANIA STATUTORY LAW? SUGGESTED ANSWER IN THE AFFIRMATIVE. 6. HAS PLAINTIFF ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF PENNSYLVANIA'S BAD FAITH STATUTE? SUGGESTED ANSWER IN THE AFFIRMATIVE. V. ARGUMENT PENNSYLVANIA LAW RECOGNIZES A CAUSE OF ACTION IN GOOD FAITH AND FAIR DEALING IN THE CONTEXT OF INSURANCE. The Supreme Court of Pennsylvania has long recognized that "the utmost fair dealing should characterize the transactions between an insurance company and the insured." Dercoli v. Pennsylvania Nat Mut Ins Co., 520 Pa. 471, 478, 554 A.2d 906, 909 (1989)(quoting Fedas v. Insurance Co. of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930)). It is the duty of an insurance company to deal with its insured fairly and in good faith. Such good faith includes a duty of full and complete disclosure as to all the benefits and every coverage that is provided by the applicable policy, including any time limitations for making a claim. Dercoli, 520 Pa. at 478, 906 A.2d at 909. The insurer's duty of good faith is contractual and arises because the insurance company assumes a fiduciary status by virtue of the policy's provisions, which give the insurer the right to handle claims and control settlement. Gilderman v. State Farm Ins. Co., 437 Pa. Super 217, 226, 649 A.2d 941, 945-46 (1994). Furthermore, when an insured communicates a degree of misinformation concerning coverage of the policy, the insurer has a duty of good faith and fair dealing to correct the misinformation about the nature of the coverage. See Banker v. Valley Forge Ins. Co., 401 Pa. Super 367, 585 A.2d 504 (1991). Simply stated, when an insurer fails to deal fairly and in good faith with its insured, the insurer may be liable in tort for breach of an implied covenant of good faith and fair dealing. Raab v. Keystone Ins Co., 271 Pa. Super. 185, 189, 412 A.2d 638, 640 (1979), appeal dismissed, 496 Pa. 414, 437 A.2d 941 (1981), (dissent of Spaeth, J., citing Gruenbere v. Aetna Ins Co., 9 Cal. 3d 566, 573, 108 Cal.Rptr. 480, 485, 510 P.2d 1032, 1037 (1973)). In the Amended Complaint, Plaintiff has averred that upon giving verbal notice other claims to one of Defendant's agents during a telephonic conversation, Defendant's agent told Plaintiff that Plaintiff need only file her claims on the written forms which Defendant would send. Despite Plaintiffs apparent misinformation or misunderstanding of possible time restraints, Defendant's agent did not inform Plaintiff that time restraints may act to bar Plaintiff's claims. Defendant's agent had a duty of good faith and fair dealing to disclose these time restraints to Plaintiff, and failure to do so was a breach of the covenant of good faith and fair dealing. Furthermore, Defendant's agent had a duty of good faith and fair dealing to correct any communicated misinformation evidenced by the Plaintiff, and failure to do so was a breach of the covenant of good faith and fair dealing. Pennsylvania law recognizes a cause of action in good faith and fair dealing in the context of insurance. Plaintiffs Count 2 adequately states a cause of action for breach of covenant of good faith and fair dealing. Therefore, Defendant's preliminary objection in the nature of a demurrer to Count 2 should be denied. 2. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIMS OF MISREPRESENTATION. In Count 3 of the Amended Complaint, Plaintiff has averred misrepresentation by Defendant to Plaintiff's Decedent. Misrepresentation consists of the following elements: 1) A misrepresentation; 2) A fraudulent utterance thereof, 3) An intention by the maker that the recipient will act; 4) Justifiable reliance by the recipient upon the misrepresentation; and 5) Damages to the recipient as the proximate result. McCellan v. Health Maintenance Org of Pennsylvania, 413 Pa. Super 128, 142, 604 A.2d 1053, 1060 (1992)(citing Neuman v Corn Exchange Nat Bank & Trust, 356 Pa. 442, 51 A.2d 759 (1947)). Defendant's demurrer is based on Defendant's view that no specific allegation of misrepresentation has been presented. This view is in error. It is worth noting that under Count 3, Plaintiff incorporated by reference all allegations set forth in Paragraphs 1 through 57 as though set forth in Count 3 at length. With this in mind, Plaintiff has alleged in the Amended Complaint that Defendant made false representations concerning coverage of the policy. In support of Plaintiffs claim of Misrepresentation by Defendant to Decedent, Plaintiff has averred that Decedent entered into the contract with Defendant based at least in part upon Defendant's representation that Decedent would be entitled to certain benefits. As stated in the contract between Decedent and Defendant, if any benefits were left unpaid at Decedent's death, said benefits would be payable to his estate. Because said benefits, although due and owing, have not been paid, and in fact have been denied by Defendant, Defendant's original representation to Decedent regarding entitlement to benefits stands as a false representation. In Count 4 of the Amended Complaint, Plaintiff has averred Misrepresentation by Defendant to Plaintiff. In support of this Count, Plaintiff has alleged in Paragraph 66 of the Amended Complaint that Defendant made false representations to the Plaintiff. These false representations included: failing to disclose time restraints applicable to Plaintiff's claims, concealing said time restraints, and otherwise misleading the Plaintiff as to the merits of her claims. Count 4 finds further and direct support in paragraphs 34, 35, 37, and 38 of Plaintiffs Amended Complaint. Again, as was the case for Count 3, Count 4 has an incorporation clause at paragraph 64. With this clause, paragraphs 34, 35, 37, and 38, as well as all other material set forth from paragraphs 1 to 63, were incorporated into Count 4. With all of these averments, specifically those in paragraphs 34, 35, 37, 38, and 66, Plaintiff has adequately stated a cause of action in Count 4 for Misrepresentation. In both Count 3 and Count 4 of the Amended Complaint, Plaintiff has set forth sufficient facts to establish causes of action for Misrepresentation. In light of the tact that a demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief, Defendant's demurrer cannot stand. McCellan, 413 Pa. Super. at 134-35, 604 A.2d at 1056. 3. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. The Unfair Trade Practices and Consumer Protection Law (hereinafter referred to as "UTPCPL") prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce within the Commonwealth of Pennsylvania. 73 P.S. § 201- et seq. The purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices. Johnson v. Hyundai Motor America, 698 A.2d 631, 638 (Pa. Super. 1997), appeal denied, 551 Pa. 704, 712 A.2d 286 (1998). The UTPCPL is to be liberally construed in order to effectuate its purpose. Pirozzi v. Penske Olds - Cadillac - GMC. Inc., 413 Pa. Super. 308, 605 A.2d 373, 376, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992). Under section 201-9.2 of the UTPCPL, private individuals are provided with the right to bring a cause of action in the UTPCPL. 73 P.S. § 201-9.2. To bring such an action, a r,rivate individual must establish that: 1) the individual is a purchaser or lessee, 2) the transaction deals with goods or services, 3) the goods or services involve personal, family, or household purposes, and 4) damages. Keller v. Volkswagen of America, Inc., 733 A.2d 642, 646 (1999). Plaintiff has met the first requirement necessary to state a cause of action under the UTPCPL. That is, Plaintiffs Decedent purchased from Defendant the insurance policy in question. Plaintiff has met the second requirement necessary to state a cause of action under the UTPCPL. There can be no doubt that an insurance policy and its coverage fall within the liberal construction applicable to the UTPCPL. Numerous cases have allowed insured individuals to bring UTPCPL cases against their insurers. See Hardy v. Pennock Ins Agency, 365 Pa. Super. 206, 529 A.2d 471 (1987), Wright v. North American Life Assur. CCo., 372 Pa. Super. 272, 539 A.2d 434 (1988), Brownell v. State Farm Mut. Ins. Co., 757 F.Supp. 526 (E.D. Pa. 1991), Great West Life Assur. Co. V. Levithan, 834 F.Supp. 858 (E.D. Pa. 1993), Parasco v. Pacific Indem. Co., 870 F.Supp. 644 (E.D. Pa. 1994). As stated by the Court in Hardy: [The Pennsylvania] Legislature did not see fit to exclude insurers, insurance agents or insurance transactions from the broad scope of [UTP]CPL regulation in either the original enactment of the [UTP]CPL in 1968 or, more importantly, in its subsequent reenactment in 1976[.] Hardy, 365 Pa. Super. at 220-21, 529 A.2d at 478-79. Thus, the insurance policy and its coverage fall within the UTPCPL. Plaintiff has met the third requirement necessary to state a cause of action under the UTPCPL. Plaintiff's Decedent bought Defendant's insurance policy in order to provide insurance coverage for himself should he need to be admitted into nursing care. This coverage ensured that he could afford to pay any medical treatments he might need in order to adequately recover from any injury he might sustain. Clearly, Decedent's purpose was for primarily personal, family, or household purposes. Plaintiff has met the fourth requirement necessary to state a cause of action under the UTPCPL. Damages have arisen from Decedent's purchase of the insurance policy and the benefits due therefrom. Even though he paid all insurance premiums billed to him under the policy, Decedent did not receive benefits due and owing under the policy, and has thereby been damaged. Plaintiff, as representative of Decedent's estate, is entitled to collect these accrued, unpaid benefits and/or seek reimbursement of the premiums paid by Decedent as Plaintiff's damages. Defendant's preliminary objection to Plaintiffs claim under the UTPCPL is in the nature of a demurrer. Because Plaintiff has established this cause of action in the UTPCPL with sufficient facts, Defendant's demurrer must be denied. 4. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT CLAIMS FOR ATTORNEY FEES AS ALLOWED BY THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW AND BY PENNSYLVANIA'S BAD FAITH STATUTE. Plaintiff is entitled to attorney fees as provided by §201-9.2(a) of the UTPCPL. 73 P.S. §201-9.2(a). This section provides that: The court may award to the Plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees. Thus, if the court sees fit, it may grant Plaintiff her attorney fees. In regard to Plaintiffs Count 5, Defendant's demurrer as to attorney fees should be denied. Plaintiff is entitled to attorney fees as provided by Pennsylvania's Bad Faith statute, §8371 "Actions on insurance policies." 42 Pa. C.S.A. § 8371. This section provides in relevant part: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (3) Assess court costs and attorney fees against the insurer. Thus, if the court finds bad faith as alleged by Plaintiff, it may grant Plaintiff her attorney fees. In regard to Count 6 of Plaintiffs Amended Complaint, Defendant's demurrer as to attorney fees should be denied. PLAINTIFF'S CAUSES OF ACTION FIND ADEQUATE FOUNDATION UNDER PENNSYLVANIA CONTRACT LAW, PENNSYLVANIA TORT LAW, AND PENNSYLVANIA STATUTORY LAW. "The determination as to whether causes of action sound in contract or in tort is difficult due to the somewhat confused state of [Pennsylvania] law." Redevelopment Authority of Cambria County v International Ins Co., 454 Pa. Super. 374, 391, 685 A.2d 581, 590 (1996). There are three lines of case law. Raab, supra; Bash supra; and Grode v. Mutual Fire Marine and Inland Ins. Co, 154 Pa. Cmwlth. 366, 623 A.2d 933 (1993). First, there are the Raab - based decisions. In Raab, "[t]he test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contractual obligation (misfeasance) rather than the mere failure to perform (nonfeasance)." Raab, 271 Pa. Super. at 187-88, 412 A.2d at 639. Second, there are the Bash - based decisions. In Phico Ins. Co V Presbvterian Medical Services Coro, a Bash - based decision, the Court stated that "[t]he important difference between contract and tort actions is that the latter lie from breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus." Phico Ins. Co. v Presbyterian Medical Services Corp., 444 Pa. Super. 221, 228-29, 663 A.2d 753, 757 (I 995)(discussing decision in Bash, supra). Third, there is the decision in Grode. In Grode, the Commonwealth Court decided "that a substantial body of Pennsylvania case law holds a Defendant liable in tort for misfeasance in the 10 performance of a contract," and the Court noted that "a tort claim [based] in a contractual relationship for services should not be dismissed at an early stage of proceedings prior to production of evidence." Grode, 154 Pa. Cmwith. at 372, 623 A.2d at 936 (discussing Public Service Enterprise Group Inc v Philadelphia Electric Co., 722 F.Supp. 184, 212 (D.N.1. 1985)). The Court further cautioned that it did "not venture so far as to endorse the misfeasance/nonfeasance distraction of Raab[.]" Grode, 154 Pa. Cmwlth. at 372, 623 A.2d at 936. In light of the somewhat confusing case law, it is useful to view Plaintiff's causes of action relative to their foundations. Recall that Plaintiff has established causes of action based on the contract between Defendant and Decedent, torts committed by the Defendant to the Plaintiff and Plaintiff's Decedent, and based on statutory provisions passed by the Pennsylvania Legislature. The contract claim arises from Defendant's breach for failing to perform its obligations under the terms of the contract. This breach took place upon the Defendant's refusal to pay Plaintiff's claims for benefit payments due and owing Decedent's estate. This breach became evident in December of 1998. Plaintiff's claims for the torts of Misrepresentation in Count 4 and the Breach of the Covenant of Good Faith and Fair Dealing in Count 2 arise from Defendant's interaction with Plaintiff. Specifically, these causes of action arise from the telephonic conversation averred in Paragraphs 34 and 35 of Plaintiffs Amended Complaint. This conversation took place in January of 1998. Plaintiff's cause of action for Misrepresentation at Count 3 involves Defendant's false representations made to Plaintiffs Decedent. Said false representations caused Decedent to execute a policy with Defendant, pay premiums on the policy, and enter nursing home care in reliance on the policy. Although Decedent's injury through Misrepresentation did not become manifest until December of 1998, the underlying actions of reliance took place from a time on or before August 7, 1989 until the Decedent's death on October 25, 1997. Thus, Plaintiffs cause of action for Misrepresentation at Count 3 has foundation different from Plaintiffs other causes of action. Plaintiffs statutory claims arise from 73 P. S. § 201-1 et seq., which has been previously identified as the Unfair Trade Practices and Consumer Protection Law, and from 42 Pa. C.S.A. §8371, which is Pennsylvania's Bad Faith provision regarding insurance policies. Plaintiff's claim under the UTPCPL is based on Defendant's actions in January of 1998 through December of 1998, while Plaintiff's claim under §8371 is based upon Defendant's actions in January of 1998 through to the present day. Both statutes provide relief which is separate and distinct from Plaintiffs common law breach of contract and tort remedies. See Hardy, supra; Gordon, supra. That is, both statutory provisions are products of the Pennsylvania Legislature, which has deemed said statutory provisions necessary to provide relief beyond that available at common law. Thus, Plaintiff's claims under these statutes do not fall within the confines of common law contract or tort and must be allowed to stand on their own. Notwithstanding the somewhat confused state of Pennsylvania case law regarding whether a cause of action sounds in contract or tort, Plaintiff has set forth a reasonable foundation for each of her Counts in the Amended Complaint. That is, each Count either finds justification based upon Defendant's actions when viewed by Pennsylvania common law or by Pennsylvania statutory law. Each Count stands on its own. For these reasons, Defendant's preliminary 12 objection in the nature of a demurrer should be denied. 6. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT THE CLAIM FOR VIOLATION OF PENNSYLVANIA'S BAD FAITH STATUTE. The statutory provision for Bad Faith, 42 Pa. C.S.A. §8371, entitled "Actions on insurance policies" states: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus three percent (3%.) (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. 42 Pa. C.S.A. §8371. Although "bad faith" is not defined in the statute, it has been defined by case law: "Bad faith" on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. O'Donnell v. Allstate Ins. Co., 1999 WL 436697, 4 (Pa. Super. 1999)(citing Romano v. Nationwide Mut. Fire Ins. Co., 435 Pa. Super 545, 646 A.2d 1228, 1232 (Pa. Super. 1994) and Terletskv v. Prudential Property & Casualty Ins. Co., 437 Pa. Super. 108, 649 A.2d 680, 688 (Pa. Super 1994), appeal denied 540 Pa. 641, 659 A.2d 560 (1995)). It has also been held that the "broad language of Section 8371 was designed to remedy all instances of bad faith conduct by an insurer, whether occurring before, during or after litigation." O'Donnell at 5. 13 Plaintiff has averred that Defendant's rejection of Plaintiffs claim for benefit payments was based on Defendant's interpretation of time restraints and not upon the merits of Plaintiff's claim. Such conduct by Defendant constitutes frivolous or unfounded refusal to pay proceeds of a policy. Furthermore, Plaintiff has sufficiently averred breach of covenant of good faith and fair dealing on the part of Defendant, which goes toward showing Defendant's dishonest purpose. In addition, because it has been held that bad faith conduct before, during or after litigation may provide a basis to state a cause of action under §8371, Plaintiff should be allowed to explore Defendant's conduct throughout discovery. For all the above reasons, Plaintiffs cause of action based on 42 Pa. C.S.A. §8371 must be allowed to stand, and Defendant's demurrer must be denied. VI. CONCLUSION Plaintiffs Amended Complaint adequately states causes of action under Breach of Covenant of Good Faith and Fair Dealing, Misrepresentation, the UTPCPL, and Bad Faith. Furthermore, Plaintiff's claims for her Attorney Fees finds support in the UTPCPL and in §8371. For these reasons, Defendant's preliminary objections in the nature of a demurrer should be denied. 14 CERTIFICATE OF SERVICE 1, Estreya Woodcock, of the Law Offices of Kollas and Kennedy, hereby certify that I have this '', day of November, 1999, served the foregoing PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS, by depositing same in the United States First-Class mail, postage prepaid, addressed to the following: Mark H. Scoblionko, Esq. SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN P.O. Box 1998 40 South Fifth Street Allentown, PA 18105 LAW OFFICE OF KOLLAS AND KENNEDY BY: ?<GG(L' ??? Estr a Woodcock ,{ 7 x ) .d r y? n, ti s ? Al jr rlt,? r - !: r*? Aar '.fiN Y r Sr 1,4', LAW OFFMO t r? 7 SCOBLWNrA SONUONNO. MUIR, BARTHOLOMEW Ar MELYAN r r Qcr" ai -{ r F A PROPMNMI.. CORPORATION , x? ? ?' k A + r O, BOS MSOU FM M: PA 1 a t r 8110505.19 .1988 AUMMM: PA 18105-19M ro+oiaxn?e .x i C i Au MHS/clr NOW (American Travelers (Reaka) Mar) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M. REAKA, No. 1999-4844 EXECUTRIX OF THE ESTATE OF ,-. KENNETH E. REAKA, DECEASED, v'?J Plaintiff Civil Action-Law V. AMERICAN TRAVELERS LIFE JURY TRIAL DEMANDED INSURANCE COMPANY, Defendant BRIEF OF DEFENDANT IN SUPPORT OF ITS PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT Mark H. Scoblionko, Esq. Scoblionko, Scoblionko, Muir Bartholomew & Melman 40 South Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 Date: September 28, 1999 1. HISTORY OF THE CASE Plaintiff has filed the within action as Executrix of the Estate of Kenneth E. Reaka, Deceased. The essence of the action is that Plaintiffs decedent had a certain policy of insurance which provided benefits in the event that the insured was confined in a nursing home. Plaintiff alleges that the policy was overlooked, both during the final years of the decedent's life and for some time after his death. Once a claim was finally submitted, Defendant denied the claim on the grounds that it was not timely filed. Accordingly, Plaintiff has filed a claim for the benefits due under the policy. In addition to the contractual claim for benefits under the policy, which is set forth as a breach of contract claim in Count I, Plaintiff has included what are essentially tort claims in Counts II, III and IV. In that the action is essentially a contract action, Defendant has filed Preliminary Objections to all of the counts sounding in tort as well as to the claims for attorneys' fees. In addition, Defendant has filed a Demurrer to Count VI of the Amended Complaint, which sounds in bad faith, as well as to Count V, which is based upon the Unfair Trade Practices and Consumer Protection Law because it is contended that these claims are legally insufficient. Defendant previously filed Preliminary Objections to Plaintiffs Complaint, but Plaintiff filed an Amended Complaint before those Preliminary Objections were argued. However, since Defendant contends that the filing of the Amended Complaint did not cure -2- the original objections that were asserted, and, indeed, contained some additional material that was itself objectionable, these Preliminary Objections have been filed. Hence, the necessity for this argument. -3- II. STATEMENT OF LEGAL ISSUES WHETHER OR NOT DEFENDANT'S DEMURRER TO COUNT II OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PENNSYLVANIA LAW DOES NOT RECOGNIZE A COMMON LAW CLAIM FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING? 2. WHETHER OR NOT A DEMURRER TO COUNTS III AND IV OF THE AMENDED COMPLAINT OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PLAINTIFF HAS FAILED TO PLEAD ANY FACTS WHICH WOULD MAKE OUT A VIABLE CLAIM SOUNDING IN COMMON LAW MISREPRESENTATION? 3. WHETHER OR NOT DEFENDANT'S DEMURRER TO COUNT V OF THE AMENDED COMPLAINT OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PLAINTIFF HAS FAILED TO PLEAD ANY FACTS WHICH WOULD SUPPORTA CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW? 4. WHETHER OR NOT A DEMURRER OUGHT TO BE SUSTAINED WITH RESPECT TO CLAIMS FOR ATTORNEYS' FEES SET FORTH IN THE AMENDED COMPLAINT BY VIRTUE OF THE FACT THAT, AS A MATTER OF LAW, SUCH DAMAGES ARE NOT PROPER IN AN ACTION OF THIS TYPE? -4- 5. WHETHER OR NOT DEFENDANT IS ENTITLED TO THE GRANTING OF A DEMURRER IN ITS FAVOR BY VIRTUE OF THE FACT THAT TORTS ALLEGEDLY COMMITTED IN THE COURSE OF CARRYING OUT A CONTRACTUAL AGREEMENT ARE DISMISSIBLE BECAUSE THE "GIST" OF THEM SOUND IN CONTRACT INSTEAD OF TORT? 6. WHETHER OR NOT DEFENDANT IS ENTITLED TO THE GRANTING OF A DEMURRER IN ITS FAVOR WITH RESPECT TO COUNT VI BECAUSE THERE ARE NO FACTS PLEADED IN THE AMENDED COMPLAINT THAT WOULD SUPPORT A CLAIM FOR BAD FAITH? -5- III. ARGUMENT A. DEFENDANT'S DEMURRER TO COUNT II OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PENNSYLVANIA LAW DOES NOT RECOGNIZE A COMMON LAW CLAIM FOR BREACH OF A COVENANT OF GOOD FAITH AND FAIR DEALING. Count II of the Amended Complaint alleges, in conclusory, fashion, that the Defendant owed Plaintiffs decedent a covenant of good faith and fair dealing. There are no cases in the Commonwealth of Pennsylvania which hold that an insurance company has a fiduciary responsibility to a customer in the context of the facts presented in this case. Indeed, the law is exactly to the contrary. See generally, Carlotti v. Employees of Credit Union, supra, 717 A.2d at 567. There is no common law tort action for bad faith or breach of fiduciary duty. Greater New York Mutual Insurance Co. v North River Insurance Co., 872 F. Supp. 1403 (E.D.Pa. 1995); Gedeon v. State Farm Mutual Automobile Insurance Co. 410 Pa. 55,188 A.2d 320 (1963). It has, however, been ruled that, in the context of a statutory bad faith action, an insurer has a contractual duty of good faith, arising because the insurance company assumes a fiduciary status by virtue of the policy's provisions which give the insurer the right to handle claims and control settlement. Romano v. Nationwide, 435 Pa. Super 545, 646 A.2d 1228 (1994). However, where, as here, a Plaintiff is asserting a breach of fiduciary duty as a tort claim, not under an insurance contract, such a claim must be dismissed. John N. Kutz and Helen A. Kutz v. Nationwide Insurance Company, Court of Common Pleas of Northampton County, -6- Pennsylvania, Civil Action No. 1996-C-248, Opinion dated April 26, 1996, of the Honorable Jack A. Panella, a copy of which is attached hereto. Furthermore, this claim is no more than a claim for economic harm only, sounding in tort, but with no injury to person or property. Under applicable Pennsylvania law, a negligence claim cannot be supported. See generally, Carlotti v. Employees Credit Union, _ Pa. Super. _, 717 A.2d 564 (1998); Spivack v. Barks Rich Corp. Inc. 402 Pa. Super. 73, 586 A.2d 402 (1990); Aikens v. Baltimore and Ohio Railroad Co., 348 Pa. Super. 17, 501 A.2d 277 (1985). B. A DEMURRER TO COUNTS III AND IV OF THE AMENDED COMPLAINT OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PLAINTIFFS HAVE FAILED TO PLEAD ANY FACTS WHICH WOULD MAKE OUT A VIABLE CLAIM SOUNDING IN COMMON LAW MISREPRESENTATION. As will also be more fully discussed in a subsequent section of this Brief, the case of Pekular v. Eich 355 Pa. Super. 276, 513 A.2d 427 (1986), allocatur denied, 516 Pa. 635, 533 A.2d 93 (1987), ruled that the Unfair Insurance Practices Act did not eliminate private claims sounding in common law fraud, although private claims under the Unfair Insurance Practices Act would be barred. In Pekular, the Plaintiffs alleged that certain limitations and coverage provided by the insurance contract were obtained as a result of intentionally false and fraudulent representations. The Court ruled that this was a viable potential claim. It is to be noted, however, that, although common law fraud and deceit -7- claims potentially remain as theoretical possibilities, Pennsylvania Rule of Civil Procedure 1019(b) provides that allegations of fraud must be pleaded with particularity and that fraud consists of some intentional and deceitful practice. See generally, Nelson v. Old Guard Mutual Insurance 13 D.&C. 4" 173 (Fulton County, 1990). The mere fact that Plaintiff has made an allegation of misrepresentation in a conclusory fashion does not provide the factual basis for the allegations. The benchmark opinion customarily cited for this proposition is Delahanty v First Pennsylvania Bank N.A., 318 Pa. Super. 90, 464 A.2d 1243 (1983). However, it is suggested that, in present context, this Court should first direct its attention to McClellan v. Health Maintenance Pa. Super. _, 604 A.2d 1053 (1992), a case in which the lower Court's granting of a demurrer in a cause of action for misrepresentation was actually overturned. In McClellan, the Superior Court begins its analysis by setting forth the general law with respect to ruling on a demurrer. Specifically, the Court states that "a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted." 604 A.2d at 1056. Later in the opinion, the Superior Court stated that the elements of a cause of action for fraud or misrepresentation are as follows: "(1) A misrepresentation; (2) A fraudulent utterance thereof; (3) An intention by the maker that the recipient will act; (4) Justifiable reliance by the recipient upon the misrepre- sentation; and (5) Damages to the recipient as the proximate result." 604 A.2d at 1060. In McClellan, supra, the Plaintiff had sustained injury as a result of allegedly sub- standard care on the part of a primary care physician, who had been provided by a health maintenance organization to which the Plaintiff belonged. It was alleged that the defendant H MO had intentionally misrepresented that every physician had passed vigorous screening -8- criteria established by the Defendant, and Plaintiff further alleged that she had relied upon that representation in joining the HMO. As a result, although the Superior Court acknowledged that the Complaint was "unartful at best," the Superior Court correctly ruled that it was sufficient to withstand a demurrer. In this case, there are no specific allegations of misrepresentation that would warrant a basis for a claim. C. DEFENDANT'S DEMURRER TO COUNT V OF THE AMENDED COMPLAINT OUGHT TO BE SUSTAINED AS A RESULT OF THE FACT THAT PLAINTIFF HAS FAILED TO PLEAD ANY FACTS WHICH WOULD SUPPORT A CLAIM FOR VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. There is no question but that, as a theoretical proposition, claims asserted for alleged violation of the Unfair Trade Practices and Consumer Protection Law are potentially viable claims. Seegenerally,Hardvv.Pennock Insurance Aoency Inc,365Pa. Super. 206, 529 A.2d 471 (1987). The law is clear in Pennsylvania that non-feasance alone is not sufficient to raise a claim pursuant to the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. §201-1 et. sec. For example, failure to pay benefits under an insurance contract is non-feasance, which is not actionable under the UTPCPL, which provides relief for misfeasance rather than non-feasance. Horowitz v. Federal Kemper Life Assur. Co. 57 F.3d 300 (3rd Cir. 1995); Klinger v. State Farm Mut. -9- Auto Ins. Co., 895 F. Supp. 709 (1995); MacFarland V. U.S. Fidelity Guar. CCo., 818 F. Supp. 108 (E.D. Pa. 1993); Lombardo v. State Farm Mut Auto Ins Co., 800 F. Supp. 208 (E.D. Pa. 1992); Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600 (1988). In Gordon v. Pennsylvania Blue Shield, supra, the Superior Court stated as follows, in holding that a health insurer's alleged improper refusal to pay its insured did not raise a claim pursuant to the UTPCPL: "The only act alleged by appellant in this case was the refusal of appellee to pay benefits to which appellant felt entitled. As this Court stated in Raab v. Keystone Ins. Co., 271 Pa.Super. 185,412 A.2d 638 (1979) appeal dismissed, 496 Pa. 414, 437 A.2d 941 (1981): The test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contracted obligation (misfea- sance) rather than the mere failure to perform (nonfeasance). M N R i Plaintiffs allege that defendant's negligence is grounded in their'failure' to take certain actions in the handling of plaintiffs claim. Our examination of this alleged conduct indicates that it is in the nature of 'nonfeasance' inasmuch as it is the omitting to do, or not doing something which ought to be done. 412 A.2d at 639 (citations omitted). The alleged improper refusal to act on appellee's part in this instance does not constitute actionable misfeasance. Nonfeasance alone is not sufficient to raise a claim pursuant to the Unfair Trade Practices and Consumer Protection Law. Thus, appellant's claim must fail." Id. 548 A.2d at 604. Once again, in AETNA Cas. and Sur. Co. v. Ericksen, 903 F. Supp. 836 (M.D. Pa. -10- i ;is 1995), a homeowners' insurer brought a declaratory judgment action, seeking a determination that it had no duty to defend or indemnify a college professor against libel claims. The college professor alleged that, by refusing to defend or indemnify him, the insurer violated the Unfair Trade Practices and Consumer Protection Law. The United States District Court, in holding that the insured did not have a claim under the UTPCPL, since the refusal to defend and indemnify the college professor did not involve misfeasance, but only nonfeasance, stated as follows: "Regardless, an insurer may be held liable under the CPL only if there are fraudulent misrepresentations in order to sell a policy, Pekular.' 513 A.2d at 428, or some other form of misfeasance. An insurer is not liable under the CPL for simple failure to perform, which amounts to nonfeasance. Parasco v. Pacific Indemnity Co., 870 F. Supp. 644, 647-648 (E.D. Pa. 1994)." Id., 903 F. Supp. at 841. 1Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427, 433-434 (1.986), Allocatur denied, 516 Pa. 635, 533 A.2d 93 (1987). In Prime Meats, Inc v. Yochim, 422 Pa. Super. 460, 619 A.2d 769 (1993), alloc. den., 646 A.2d 1180, the Superior Court held that, in order to recover under 73 Pa. C.S.A. §201-2(4)(xvii) of the Consumer Protection Law, which prohibits "engaging in any other fradulent conduct which creates a likelihood of confusion or of misunderstanding," the plaintiff must prove the elements of common law fraud. The elements of common law fraud which must be proven are the following: (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damages to the party defrauded as a proximate result. Similarly, in Nelson vs. Old Guard Mut. Ins. Co., 13 D. & C. 4th 173 (Fulton Cty. -11- 1990), the Court held that allegations that an insurance agent misrepresented that renewal notices had been sent to a particular address at the insured's request and withheld notice of cancellation of the policy did not authorize a suit under the UTPCPL because the Com- plaint failed to aver any facts which showed fraud or intentional misrepresentation on the part of the agent. In so holding, the Court cited the Commonwealth Court case of Chatham Racquet Club v Commonwealth, 116 Pa. Cmwlth. 55, 541 A.2d 51 (1988), holding that there must be some showing of intentional misconduct on the part of the Defendant to violate the catchall provisions of the UTPCPL. See also Nelson v. Stine Davis and Peck Ins., 7 D. & C. 4th 415 (Fulton Cty. 1988), a companion case to Nelson v. Old Guard Mut Ins. Co., supra. In Commonwealth by Zimmerman v National Apartment Leasing, 102 Pa. Cmwlth. 623, 519 A.2d 1050 (1986), cited by the Court in Nelson v. Old Guard Mut Ins Go., supra, the attorney general brought an action against a group of landlords, alleging that they wrongfully used portions of security deposits to clean apartments. In the Complaint, the attorney general's only reference to fraud was its recitation of subsection (viii) of the Consumer Protection Law Section 201-2(4) that it is unfair for any person to engage "in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding." The Commonwealth Court sustained the landlord's preliminary objections that the Complaint failed to plead fraud with sufficient particularity as required in order to set forth a cause of action under the UTPCPL. Very recently, the Superior Court decided the case of Faye v. Erie Insurance Group, _ Pa. Super. _, 723 A.2d 712 (1999). Once again, the Superior Court ruled that, to -12- set forth a cause of action under this statute, a plaintiff must establish that a defendant has made a false representation and that the false representation is likely to have made a difference in a purchasing decision. This has not been alleged in the case sub gdice, and, as indicated, the pleaded facts do not come within the ambit of the subject statute. Based on the case law cited above, in order for the issue of the alleged violation by the Defendant of the Pennsylvania Unfair Trade Practices and Consumer Protection Law to be submitted to the jury, there must be evidence of misfeasance against the Defendant, i.e., fraud or intentional misconduct, as opposed to mere non-feasance. Absent any evidence of fraud or intentional misconduct against Defendant, the Plaintiffs claims under the UTPCPL may not be submitted to the jury for determination and should be dismissed as a matter of law. However, as indicted in the History of the Case, the claims of the Plaintiff in this instance do not arise out of a sale of the product. There are no cases in Pennsylvania which demonstrate that the alleged activity can provide the basis for a claim under the Unfair Trade Practices and Consumer Protection Law. See Nelson v. Old Guard Mutual Insurance Co., supra. Also see Carlotti v. Employees of Credit Union. sUDra, which ruled that an action could not be maintained under this statute where the loan protection insurance in question was offered gratuitously but was not purchased by the Plaintiffs. D. PLAINTIFF'S CLAIMS FOR ATTORNEYS' FEES MUST BE STRICKEN PURSUANT TO APPLICABLE PENNSYLVANIA LAW. As indicated in the History of the case, Plaintiff has included a claim for attorneys' -13- fees. Such a claim is controlled by the provisions of 42 Pa. C.S.A. §2503. See, generally, the cases cited thereunder. Also see Thunberg v. Strause. _ Pa. _, 682 A.2d 295 (1996). In this instance, Plaintiffs claims do not come within the ambit of the statute and the demurrer thereto must be sustained. E. PLAINTIFF IS ALSO PRECLUDED FROM RECOVERING ON THE TORT CLAIMS IN THE WITHIN ACTION BASED UPON THE "GIST OF THE ACTION" DOCTRINE. Claims sound in contract if they arise from "the breach of duties imposed by mutual consensus." Phico Ins. Co. v. Presbyterian Medical Serv. CCorp., 444 Pa. Super. 221, 663 A.2d 753, 757 (1995). Tort claims arise "from the breach of duties imposed as a matter of social policy." Id. "Several courts have determined that, under Pennsylvania law, tort claims allegedly committed in the course of carrying out a contractual agreement are dismissible if the 'gist' of them sound in contract instead of tort." Quorum Health Resources. Inc. v. Carbon-Schuylkill Community Hospital Inc., 1999 U.S. Dist. LEXIS 7729 (E.D. Pa. May 4, 1999) citing Suncuest Information Systems. Inc. v. Dean Witter Reynolds. Inc., 1999 U.S. Dist. LEXIS 3539 (W.D. Pa. March 24, 1999) ; Factory Market. Inc. v. Schuller Int'l. Inc., 987 F. Supp. 387, 394 (E.D. Pa. 1997); Wood & Locker. Inc. v. Doran & Assoc., 708 F. Supp. 684, 689 (W.D. Pa. 1989); Redevelopment Auth. of Cambria County v. International Ins.. Co., 454 Pa. Super. -14- 374, 685 A.2d 581, 590 (1996) (en banc), alloc. denied, 695 A.2d 787 (Pa. 1997); Phico Inc. Co. v. Presbyterian Medical Serv. CCorp., 444 Pa. Super. 221, 663 A.2d 753, 757 (1995). The Quorum court disallowed counterclaims of negligence, fraud and breach of warranty, finding that the claims failed to allege any additional or different facts from those alleged in the breach of contract counterclaim. The court found that the counterclaims sounded in contract, rather than in tort, and applied the "gist of the action" doctrine. Quorum, supra at 5. Plaintiff has based tort damages claims on exactly the same facts on which the contract claims are based, with no additional or different facts to support the tort claims. Based upon the aforesaid existing case law, it is clear that the Defendant is entitled to the granting of a demurrer in the within action, dismissing the tort claims of Counts II, III, IV and V. F. DEFENDANT IS ENTITLED TO THE GRANTING OF A DEMURRER IN ITS FAVOR WITH RESPECT TO COUNT VI BECAUSE THERE ARE NO FACTS PLEADED IN THE AMENDED COMPLAINT THAT WOULD SUPPORT A CLAIM FOR BAD FAITH. Plaintiff's Amended Complaint fails to set forth any factual or legal basis for her allegation of bad faith set forth in Count VI. The mere fact that Defendant denied -15- Plaintiff's claim does not constitute bad faith. Paselli v. Nationwide Mutual Fire Insurance Comoanv, 23 F.3rd 747 (3rd Cir. 1994). I As alleged in Plaintiff's Amended Complaint, there is an actual and immediate controversy regarding Plaintiff's entitlement to coverage. There is no clear and convincing evidence that a jury can consider that the denial of coverage in this instance was frivolous or an unfounded refusal to pay proceeds of a policy. There is no evidence of a dishonest purpose or breach of a known duty. Rather, the evidence indicates that there is a dispute between the parties and Defendant has denied coverage because of a sincere dispute as to whether or not Plaintiff is entitled to coverage. On the basis of existing law, a jury could not possibly return a verdict in favor of the Plaintiff on a theory of bad faith. Birth Center v. St. Paul Companies Inc., -_ Pa. Super. _, 727 A.2d 1 144 (1999). Koskierowski v. Allstate Insurance Co., E.D. Pa. Civil Action No. 98-5221, Opinion of Marvin Katz, S.J., dated June 4, 1999, PICS No. 99-1103-03-00. -16- IV. CONCLUSION For all ofthe reasons more fully set forth herein, Defendant's Preliminary Objections ought to be sustained and the challenged portions of the Amended Complaint dismissed. SCOBLIONKO, SCOBLIONKO, MUIR BARTHOLOMEW & MELMAN BY: ?l ' C?Ti c? Mark H. Scoblionko, Esquire Attorney I.D. #08070 Attorney for Defendant 40 So. 5° Street P.O. Box 1998 Allentown, PA 18105 (610) 434-71388 -17- U > : i-? C7 ?l If ? [ ? J 1 G ch i? O O w W W a az a u zz ro k" a a o w '? ova ?? a 9 U ? O D x a W y E H U 6 w r4 q WANI(0•Ap9pIfL •lt'BI(t•Aryl(-0 ?OH WbOf 7W 1YNglYNYLW t6lY3MlY p NQl6l/.lpv 1YOT 6n16 lltl 7 w a x ayo E U W ?FU7Z m z G u ro c v W v 0 O E V H 8 o a o w a ? v e Z N H ? a Mi0dr6128M (Amer. Tra"IOMRaaka P.0.2) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, No. 1999-4844 Plaintiff Civil Action-Law V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS Defendant PRELIMINARY OBJECTIONS OF DEFENDANT TO AMENDED COMPLAINT AND NOW, to wit, this 28'" day of September, 1999, comes the Defendant above- named, by and through its undersigned counsel, Mark H. Scoblionko, Esquire, and files these Preliminary Objections to Plaintiffs Amended Complaint, as follows: 1. DEMURRER TO COUNT II OF THE AMENDED COMPLAINT 1. Count II of the Amended Complaint purports to assert a claim based upon an alleged breach of covenant of good faith and fair dealing. 2. Pennsylvania law does not recognize a claim for an alleged breach of a covenant of good faith and fair dealing against an insurance company. 3. Count II of the Amended Complaint has failed to make out a viable claim upon which relief can be predicated. 4. Additionally, the within claims are claims sounding in tortfor what is basically a contract action, which is not permissible as a matter of law. 5. Additionally, the within claim is a tort claim for economic loss only, where there has been no damage to person or property, which is not permitted as a matter of law. WHEREFORE, Defendant respectfully prays that its Demurrer to Count II of the Amended Complaint be sustained and that Count II of the Amended Complaint be dismissed for failure to make out a viable cause of action. II. DEMURRER AS TO COUNTS III AND IV OF THE AMENDED COMPLAINT 1. Counts III and IV of Plaintiffs' Amended Complaint purport to set forth claims sounding in "misrepresentation." 2. Pennsylvania law does not recognize claims for "misrepresentation" unless a Complaint asserts facts that give rise to such an action. 3. All allegations set forth in Counts III and IV of the Amended Complaint are general, conclusory allegations, but do not, in any fashion, set forth with specificity the material allegations of misrepresentation upon which such a claim must be based. 4. Additionally, the within claims are claims sounding in tort forwhat is basically a contract action, which is not permissible as a matter of law. -2- 5. Additionally, the within claims are tort claims for economic loss only, where there has been no damage to person or property, which is not permitted as a matter of law, WHEREFORE, Defendant respectfully prays that its Demurrer to Counts III and IV of the Amended Complaint be sustained and that Counts III and IV of the Amended Complaint be dismissed for failure to make out a viable cause of action. III. DEMURRER TO COUNT V OF THE AMENDED COMPLAINT 1. Count V of the Amended Complaint purports to assert a claim based upon the violation of the Unfair Trade Practices and Consumer Protection Law. 2. Pennsylvania law, by its terms, requires that a claim under this statute be based upon a purchase of some goods or services as a result of actions by Defendant. 3. The Amended Complaint recites thatthe Plaintiff allegedly suffered damages as a result of the denial of a claim for benefits under a policy. WHEREFORE, Defendant respectfully prays that its Demurrer to Count V of the Amended Complaint be sustained and that Count V of the Amended Complaint be dismissed for failure to make out a viable cause of action. -3- IV. DEMURRER AS TO CLAIMS FOR ATTORNEYS' FEES 1. Plaintiff has asserted a claim for attorneys' fees. 2. Plaintiff has failed to plead any facts which would support a claim for attomeys' fees. 3. The claims for attorneys' fees are not viable as a matter of law in an action of this type. WHEREFORE, Defendant respectfully prays that its Demurrerwith respectto claims for attorneys' fees be sustained. V. DEMURRER AS TO CLAIMS FOR BAD FAITH IN COUNT VI 1. Plaintiff has asserted a claim for bad faith in Count VI of the Amended Complaint. 2. Plaintiff has set forth no facts upon which a claim for bad faith can lie. 3. The within action represents a dispute between the parties as to whether or not Plaintiff is entitled to coverage for her decedent. 4. As a matter of law, where there is no allegation of "evil motive" or other facts giving rise to bad faith, such claims must fail as a matter of law. -4- WHEREFORE, Defendant respectfully prays that its Demurrer with respect to Count VI of the Amended Complaint be sustained. SCOBLIONKO, SCOBLIONKO, MUIR BARTHOLOMEW & MELMAN Mark H. Scoblionko, Esquire Attorney I. D. #08070 Attorney for Defendant 40 South 5'" Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 -5- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW SANDRA M.REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant No. 1999-4844 Civil Action-Law JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS CERTIFICATE OF SERVICE I, Mark H. Scoblionko, Esquire, attorney for Defendant, certify that, on September 28, 1999, a copy of the attached Preliminary Objections of Defendant to Plaintiff's Amended Complaint, together with supporting Brief, were served upon the following party by regular mail, postage prepaid: James W. Kollas, Esquire, 1104 Fernwood Avenue, Camp Hill, Pennsylvania, 17011. SCOBLIONKQ, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN By Mark H. Scoblionko; Esquire Attorneys for Defendant 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW ?l JOHN N. KUTZ and HELEN , A. KUTZ, His Wife, 1996-C-248 Plaintiffs V. T' . NATIONWIDE INSURANCE COMPANY, n '.• Defendants OPINION OF THE COURT v This instant action arises out of a denial. of an insurance claim made by the plaintiffs. The plaintiffs are the owners of a vacation home located at Star Route, Eleven Mile Road, Singlehouse, Potter County, Pennsylvania. They purchased this home on October 25, 1988 and have maintained fire insurance on it through the defendant since that date. On May 19, 1995, the plaintiffs' vacation home was totally destroyed by fire. They immediately provided all required information to the defendant in order to have their claim paid. They answered questions and supplied written materials upon request. They then answered numerous additional question presented to them by the defendant. During the time that the defendant was reviewing their claim, plaintiffs allegedly asked for information relating to the claim but were never given an answer. During the pendency of the investigation of the claim, on or about October 4, 1995, the plaintiffs received a bill from the defendant in the amount of $390.00 for continuing fire insurance on the property. They promptly paid it. `•__• ••-• ? •••••• ?? "» ?•• • •••?.? r.uo rYJJ btl--' 107' 7b 14 On or about December 28, 1998, the defendant notified plaintiffs that their claim for coverage was being denied on the ground that 11the loss to Mr. KutzIs hunting cabin was the result of arson. Also the investigation revealed enough evidence to indicate that the arson was committed by Mr. Kutz.11 Plaintiffs allegedly attempted to contact defendants to discuss the finding but were told that there was nothing to discuss. Plaintiffs filed a complaint on January 12, 1996 alleging six counts: I. Breach of Insurance Policy, II. Bad Faith; III. Fraud; IV. Breach of Fiduciary Duty; V. Violation of Unfair Trade Practices Act; and VI. Breach of Duty of Good Faith and Fair Dealing. Defendant filed preliminary objections on February 2, 1996 claiming that Counts IV, V and VI do not set forth valid causes of action and must be dismissed. Both parties have submitted briefs on the issues. This matter is before the court by way of the February 27, 1996 argument list. DISCUSSION COUNT IV - BREACH OF FTDUCrARY DUTY 42 Pa. Cons. Stat. Ann. Section 8371 provides: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3.1. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. 2 Defendant argues that this statute provides the sole remedy for their alleged conduct. In support of this argument, defendant cites Greater New York Mut. Ins. Co. M. North River Ins- Co., 872 F.Supp. 1403 (E.D.Pa. 1995). In that case, it was noted that the Pennsylvania Supreme Court considers a breach of a contractual duty of good faith and breach of fiduciary duty synonymously in the context of insurance cases. LcL at 1409; See Gedeon V. State Farm Mutual Automobile Insurance Co ,410 Pa. 55, 188 A.2d 320 (1963). There is no common law tort action for bad faith or breach of fiduciary duty. Greater New X=, u ra at 1409.• The "bad faith" statute provides the sole remedy for punitive damages for insureds or their assignees or equitable subrogees who allege bad faith or breach of fiduciary duty by an insurer. Idd.; Kauffman v Aetna Cas. & Sur. Co., 794 F.Supp. 137, 139-40 (E.D. Pa. 1992). Thus, based on these standards, the court in Greater New York dismissed the count alleging breach of fiduciary duty insofar as it alleged a tort or sought punitive damages. Plaintiffs, on the other hand, argue that a fiduciary relationship existed between the parties by virtue of the contract. They refer to Romano v. Nationwide, 435 Pa. Super. 545, 646 A.2d 1228 (1994) where the court stated that "the insurer's duty of good faith, therefore, is contractual and arises because the insurance company assumes a fiduciary status by virtue of the policy's provisions which give that insurer the right to handle claims and control settlement." Ijs at 551, 646 A.2d at 1231. While we agree with the standard cited by the plaintiffs, we 3 disagree with their interpretation. This standard or law from the Romano case appears to apply to bad faith claims and not to separate and distinct fiduciary claims. Count IV of plaintiffs' complaint avers: 49. The relationship between Plaintiffs and Nationwide as aforesaid was such as to impose upon Nationwide a duty to act to a fiduciary standard. 50. Nationwide's actions in failing properly to evaluate and pay Plaintiffs' claims comprised a violation of the duty to act to a fiduciary standard. 51. Nationwide's actions in extracting an additional year's premium when Nationwide knew or should have known that it was going to deny coverage comprised a violation of the duty to act to a fiduciary standard. 52. Nationwide's actions in refusing to provide Plaintiffs' with copies of information pertaining to plaintiffs that it supplied to others comprised a violation of the duty to act to a fiduciary standard. 53. Nationwide's actions in failing to provide an explanation and a factual basis for its denial of coverage comprised a violation of the duty to act to a fiduciary standard. We are convinced that Count IV of the plaintiffs' complaint is alleging a breach of fiduciary duty not under the insurance contract, but as a tort claim. Therefore, in line with the reasoning of the Greater New York case, we must dismiss Count IV. Plaintiffs have the right to file an amended complaint within 20 days if they wish to pursue this claim under the insurance contract.' COUNT V_- VIOLATION OF UNBAIR TBADE PRACTICES ACT I If plaintiffs file an amended complaint, they cannot request punitive damages in this count. 4 ' `v I r- ==n WW' 7b 14: 4G In Count V of the complaint, plaintiffs allege a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-1, et. seg. (hereafter referred to as UTPCPL). They claim: 56. The post-loss investigation was conducted by Nationwide in an unfair and nonobjective manner in violation of Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-1, et, seg. 57. The representation by Nationwide to Plaintiffs that "Nationwide is on your side" on a premium invoice and the acceptance of a premium as aforesaid at a time when Nationwide knew or should have known that it was going to deny Plaintiff's claimed loss, comprised a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2(4)(v). 58. Nationwide's actions as set forth in paragraphs 50 through 53 above comprised a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2(4)(xvii). In order to pursue a claim under the UTPCPL, the alleged conduct must be one of misfeasance rather than nonfeasance. MacFarland v intied St tea Fidelity & Guarantee Comnaiv, 818 F.Supp. 108 (E.D. Pa. 1993), Gordon v. PennSV vania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600, 604 (1988). Nonfeasance alone is not sufficient to raise a claim pursuant to the UTPCPL. Id. at 264, 548 A.2d at 604. The Gordon court explained the difference by stating that misfeasance is "an improper performance of a contracted obligation" whereas nonfeasance is "the mere failure to perform." ;?dti at 264, 548 A.2d at 604. The crucial inquiry thus becomes whether plaintiffs pled a nonfeasance or a misfeasance on 5 .err ?• ?.. v • .vrr IV•._r • VI JLI VJ JV 1Y.Y? the part of the defendant. The MacFarland court held that failure to pay under an insurance contract constitutes nonfeasance. Id. at 110. Thus, defendant argues that their failure to pay the claim is the dispute in this case, and since this should be construed as nonfeasance rather then misfeasance, Count V should be stricken. In Parasco v. Pacific Indemnity Company, 870 F.Supp. 644 (E.D. Pa. 1994), the District Court addressed facts substantially similar to those in this case. The plaintiffs held a homeowner's insurance policy issued by tho defendant. A fire destroyed their home and. after concluding that the plaintiff husband had set the fire, defendant refused to pay the claim. Plaintiffs also alleged a count under the UTPCPL and the defendant argued that since the alleged activity giving rise to the claim was nonfeasance, the claim should have been dismissed. The court disagreed. it reasoned that the complaint contained allegations concerning the defendant's improper performance, including the allegation that the post-loss investigation was conducted in an unfair and nonobjective manner, as well as the contention that the defendant made misrepresentations concerning the nature of its contractual obligations. jJ.L at 647. These were properly classified as allegations of misfeasance and the count was not dismissed. After a close review of the allegations in the complaint, we conclude that, although the heart of this case is the failure to pay the claim, the plaintiffs have adequately pled allegations of misfeasance in Count V to withstand the defendant's preliminary 6 objections. Paragraph 56 of plaintiffs' Complaint alleges that the defendant conducted an investigation in an unfair and nonobjective manner, a claim identical to the one in Parasco. They also allege, in paragraph 57, the improper taking of their last premium, an act which can only be characterized as an act of misfeasance. Similarly, paragraph 51 alleges the same act of improperly taking a premium payment from plaintiffs. The defendant's preliminary objection to Count V of the complaint is therefore denied. , COUNT V - BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING Count IV of plaintiffs' complaint alleges a claim for breach of duty of good faith and fair dealing. Specifically, it pleads: 60. Nationwide failed to investigate Plaintiffs' 1 loss fairly and objectively. 61. Nationwide rejected Plaintiffs' claims without good cause. 62. Nationwide unreasonably delayed the I adjustment of Plaintiffs' claim. Ii1 63. Nationwide's actions as aforesaid and as set forth in paragraphs 5o through 53 above comprised a breach of its duty of good faith and fair dealing. 64. Nationwide's actions as aforesaid were If wilful, wanton and outrageous. In Parasco, supra, the District Court denied the defendant's I motion to dismiss the claim alleging a breach of the duty of good faith and fair dealing. In that case, the plaintiffs alleged, inter alia, that the defendant failed to conduct a fair and objective investigation into the loss, rejected the plaintiffs' 7 VLV VJi 1 VVV LI"I MI 1 ??...V.J 1 1 VV V J JVI V J JV 1 Y• YJ proof of loss without a reasonable basis, and unreasonably delayed the adjustment of their claim. The Parasco court noted that Pennsylvania courts have long recognized that an insurer owes a duty of the utmost good faith to its insured. IdL at 646. That duty of good faith encompasses not only the burden to investigate fairly and objectively, but also the obligation to reject claims only where good cause exists to do so. Id. More recently, the Supreme Court of Pennsylvania has expanded the duty to include the obligation "of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy," even where such disclosure works against the insurer's interest. Id. Based on the reasoning stated in the Parasco decision, we hold that Count VI of the plaintiffs' complaint adequately states a cause of action for breach of duty of good faith and fair dealing. Defendant's preliminary objection on Count VI is denied. WHEREFORE, we enter the following: 8 o1l'J-o?y-roOO Lr1V urr 1L,CJ fYJ [] r1b ZD=r 7b 1444 IN THE COURT ON COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW JOHN N. KUTZ and HELEN A. KUTZ, His Wife, 1996-0-248 Plaintiffs s Vs. NATIONWIDE INSURANCE _ COMPANY, Defendants ORDER OF COURT AND NOW, this 26th day of April, 1996, after review of Defendant's preliminary objections, it is hereby ordered and decreed: 1. Defendant's preliminary objection on Count IV of the complaint which alleges breach of fiduciary duty is granted. 2. Defendant's preliminary objection on Count V of the compliant which alleges Violation of Unfair Trade Practices Act is denied. 3. Defendant's preliminary objection on count VI of the complaint which alleges breach of duty of good faith and fair dealing is denied. ocr 4. Plaintiffs have the right to file an amended complaint within 20 days in accordance with this opinion. BY THE COURT, 0" a n - 4Q44/)' JACK ANTHONY PANELLA, J. LIAC ? O Ul 41! N +-. 0 (IL C'.) o CL U N Y ? D W c Z ; W2 W < 2 Y<0 a Z °0n N p W " ?aC g< Y IL f a u NM9i110•Aptl1l0•V4f1104fO1t0 Ox AW04 J'.I'tYY0i1?xtl11Nl ?Ullllry M Nmm Y Y," ,v.. •.. IlZ ?il SANDRA M. REAKA, IN THE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH E. REAKA, DECEASED, Plaintiff V. : NO. 1999-4844 AMERICAN TRAVELERS LIFE CIVIL ACTION -LAW INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 tk SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 AMERICAN TRAVELERS LIFE CIVIL ACTION -LAW INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Plaintiff, Sandra M. Reaka, by and through her attorneys KOLLAS AND KENNEDY, and avers the following in support of this complaint: BACKGROUND Plaintiff, Sandra M. Reaka, is an adult individual residing at 42 Alfred Drive, Lewisberry, Cumberland County, Pennsylvania. 2. Plaintiff is the daughter of Kenneth E. Reaka, deceased. 3. Decedent, Kenneth E. Reaka, died on October 25, 1997. 4. Plaintiff was granted Letters Testamentary for the estate of decedent Kenneth E. Reaka on February 4, 1997, by the Register of Wills of Cumberland County, Pennsylvania, and is the Executrix of said estate. 5. Defendant, American Travelers Life Insurance Company, (hereinafter "ATLIC") is a corporation licensed to do business in the Commonwealth of Pennsylvania with a place of , l ''\ business located at 1800 Street Road, Warrington, Pennsylvania. 6. On or about August 7, 1989, decedent Kenneth E. Reaka and Defendant ATLIC entered into a written contract (hereinafter the "policy"). A true and accurate copy of the policy is attached hereto as Exhibit "A." 7. The policy was executed at 417 Reservoir Road, Mechanicsburg, Cumberland County, Pennsylvania, which was the residence of decedent Kenneth E. Reaka. 8. The effective date of the policy between decedent Kenneth E. Reaka and Defendant ATLIC is August 7, 1989. 9. Under the terms of the policy, decedent Kenneth E. Reaka was entitled to seek benefit payments from the Defendant in regard to expenses incurred from confinement in nursing home facilities and in regard to expenses incurred from a period of home health care following confinement at a nursing home facility. 10. Under the terms of the policy, any accrued benefits unpaid at the Insured's death were to be paid to the estate of the deceased. HISTORY OF DECEDENT' POLL V-RELATED INCIDENTS 11. On or around May 4, 1994, decedent Kenneth E. Reaka fell and broke his right hip. 12. On or around May 4, 1994, decedent Kenneth E. Reaka was admitted to Northwest Hospital Center (hereinafter "Northwest"), Randallstown, Maryland, in order to receive treatment for his broken right hip. 1 il,, 13. On or around May 19, 1994, decedent Kenneth E. Reaka was transferred from Northwest to Sinai Hospital of Baltimore (hereinafter "Sinai'), Baltimore, Maryland. 14. While at Sinai decedent Kenneth E. Reaka received care for his broken right hip. 15. On or around June 9, 1994, decedent Kenneth E. Reaka was transferred from Sinai to the Cherrywood Health Care & Rehabilitation Center (hereinafter "Cherrywood"), which is a nursing home facility located at 12020 Reistertown Road, Reistertown, Maryland. 16. While at Cherrywood decedent Kenneth E. Reaka received care for his broken right hip. 17. On or around June 22, 1994, decedent Kenneth E. Reaka was released from Cherrywood to the home of Frank and Darlene Israel at 218 Bond Avenue, Reistertown, Maryland. 18. While at the home of Frank and Darlene Israel, decedent Kenneth E. Reaka received home health care services for his broken right hip until September of 1994. 19. On or around September 1, 1994, decedent Kenneth E. Reaka left the home of Frank and Darlene Israel and was admitted to Elesy Manor, Inc., (hereinafter "Elesy Manor"), which is a nursing home facility located at 4012 Buckingham Road, Baltimore, Maryland. 20. Decedent Kenneth E. Reaka's confinement at Elesy Manor was required because of his broken right hip. 21. Decedent Kenneth E. Reaka remained confined at Elesy Manor until August 29, 1995. The cost of this period of admittance was $19,480.00. 22. On or around August 29, 1995, decedent Kenneth E. Reaka sustained a fracture to his right acetabulum and again was admitted to Sinai. 23. On or around September 6, 1995, decedent Kenneth E. Reaka underwent surgery to address his injury of August 29, 1995. 24. On or around September 14, 1995, decedent Kenneth E. Reaka was transferred from Sinai to Levindale Hebrew Geriatric Center & Hospital (hereinafter "Levindale"), which is a nursing home facility located at 2434 Belevedere Avenue, Baltimore, Maryland. 25. The facilities of Levindale were employed to care for decedent Kenneth E. Reaka's injury of August 29, 1995. 26. On or around November 28, 1995, decedent Kenneth E. Reaka left Levindale and was admitted to Autumn House Assisted Living (hereinafter "Autumn House"), which is a nursing home facility located at 1 10 Neel Avenue, Glyndon, Maryland. 27. Decedent Kenneth E. Reaka's confinement at Autumn House was required because of his injury of August 29, 1995. 28. Decedent Kenneth E. Reaka remained confined at Autumn House until December 2, 1996. The cost of this period of admittance was $21,630.00. 29. On or around December 2, 1996, decedent Kenneth E. Reaka left Autumn House and was admitted to Vann Senior Living (hereinafter "Vann"), which is a nursing home facility located at 12 Cedarhill Road, Randallstown, Maryland, 30. Decedent Kenneth E. Reaka's confinement at Vann was required to provide further care for his injury of August 29, 1995. 3 1 . Except for the period of time from April I, 1997, to April 10, 1997, when he was 4 +1 admitted to Sinai for a syncopal episode, decedent Kenneth E. Reaka remained confined at Vann until October 25, 1997, the decedent's date of death. The cost of this period of admittance was $20,350.00. PLAINTIFF'S ATTEMPT AT CLALM COLLECTION 32. Due to his injuries and subsequent loss of recollection, decedent Kenneth E. Reaka was incapable or unable to communicate the terms and nature of the policy to his agents. 33. The terms and nature of the policy were not fully recognized until the Plaintiff began the process of gathering assets of the estate of the decedent, Kenneth E. Reaka. 34. In or around January of 1998, within a reasonable time after discovering the policy and discerning its nature, Plaintiff gave Defendant ATLIC verbal notice of her claim during a telephonic conversation with one of Defendant ATLIC's employees/agents. 35. During the aforementioned telephonic conversation, Defendant ATLIC's employee/agent told Plaintiff that forms would be sent to Plaintiff for her to fill out and return to Defendant ATLIC, but failed to notify Plaintiff of time restraints applicable to Plaintiff's claims. 36. After gathering information from the nursing home facilities named above, Plaintiff gave written notice of her claim for payment of $61,460.00 to Defendant ATLIC in a letter dated November 12, 1998. A true and accurate copy of this letter is attached hereto as Exhibit "B." 37. Defendant ATLIC rejected Plaintiffs claim to payment in a letter dated December 15, 1998. A true and accurate copy of this letter is attached hereto as Exhibit "C." 38. Defendant ATLIC's rejection of Plaintiffs claim was based on Defendant's interpretation of time restraints in the policy and not upon the merits of Plaintiffs claim. 39. Despite repeated requests from the Plaintiff, Defendant ATL1C has continued to refuse payment of Plaintiffs claim. 40. Defendant ATLIC's continued rejection of Plaintiffs claim constitutes reckless, outrageous, and/or oppressive conduct. 41. Under the terms of the policy, all benefits were payable to Kenneth E. Reaka, and any benefits unpaid at Kenneth E. Reaka's death were to be paid to his estate. 42. Defendant ATLIC's refusal to pay benefits due and owing to the estate of decedent, Kenneth E. Reaka, is a breach of the terms of the policy. PREMIUM PAYMENTS OWED TOPLAINTIFF 43. At all times from the effective date of the policy until Kenneth E. Reaka's death, the policy was in force. 44. Premiums for the policy were paid from the effective date through January of 1998. 45. Because the decedent died on October 25, 1997, Defendant ATLIC is not entitled to premium payments which were made for November 1997, December 1997, and January 1998; and, these payments, totaling $345.60, must be returned to the Plaintiff. 6 +4, 46. In accordance with the terms of the policy, decedent Kenneth E. Reaka was entitled to seek payment benefits from Defendant ATLIC in regard to expenses incurred at the above-named nursing home facilities and for related home health care. 47. The amount of payment benefit concerning nursing home facilities is set forth in the policy as $2,000.00 a month for a aggregate maximum period up to five years from the effective date of the agreement with, as stated in the rider to the policy, a five percent increase for each of the first fifteen policy year anniversary dates. 48. The amount of payment benefit concerning home health care is set forth in the policy as $1,000.00 a month for an aggregate maximum period up to one year from the effective date of the agreement with, as stated in the rider to the policy, a five percent increase for each of the first fifteen policy year anniversary dates. 49. In light of the provisions referred to in paragraphs 47 and 48 above, Plaintiff has reassessed the amount of accrued benefits owed to the Plaintiff. 50. Because decedent Kenneth E. Reaka was in the above-named nursing home facilities for the periods stated and received home health care for the period stated, decedent Kenneth E. Reaka's estate is entitled to claim $101,144.99 in benefits from the policy. 51. Defendant ATLIC owes the estate of decedent Kenneth E. Reaka an amount in excess of $101,490.59. 4 52. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 51 as though the same were fully set forth herein at length. 53. The actions of Defendant as aforesaid are willful and constitute a material breach of the contract entered into between decedent and Defendant. 54. As a direct and proximate result of the actions of Defendant as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to loss of the monies owed to Plaintiff by Defendant, loss of the use of said monies, lost interest on the money, and other such damages as may be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, and for such other relief as this Honorable Court may deem appropriate. COUNT 2 - BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING 55. Plaintiff incorporates herein by reference the allegations set forth in paragraphs I through 54 as though the same were fully set forth herein at length. 56. Defendant's actions constitute a breach of the covenant of good faith and fair dealing which Defendant owed Plaintiffff. 57. As a direct and proximate result of the actions of Defendant as aforesaid, Plaintiff has suffered and continues to suffer serious injury, including but not limited to loss of the monies owed to Plaintiff by Defendant, loss of the use of said monies, lost interest on the money, and other such damages as may be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enterjudgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, punitive damages, and for such other relief as this Honorable Court may deem appropriate. C!OUNT3 - MISREPRESENTATION 58. Plaintiff incorporates herein by reference the allegations set forth in paragraphs I through 57 as though the same were fully set forth herein at length. 59. Defendant made false representations concerning coverage in the policy. 60. Defendant knew or should have known its representations were fraudulent. 61. Defendant intended or had reason to expect action or forbearance on the part of decedent. 62. Decedent justifiably relied upon the representations of the Defendant by accepting the policy, by paying premiums toward the policy, and by seeking admittance to nursing home facilities as provided in the policy. 9 k 63. Decedent and his estate have suffered damage as a result of relying on the representations of Defendant. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, punitive damages, and for such other relief as this Honorable Court may deem appropriate. COUNT 4 MISREPRESENTATION 64. Plaintiff incorporates herein by reference the allegations set forth in paragraphs through 63 as though the same were fully set forth herein at length. 65. Defendant made false representations to Plaintiff. 66. Said false representations include failing to disclose time restraints applicable to Plaintiff's claims, concealing time restraints applicable to Plaintiff's claims, and/ or otherwise misleading Plaintiff as to the merits of Plaintiff's claims. 67. Defendant knew or should have known its representations were fraudulent. 68. Defendant intended or had reason to expect action or forbearance on the part of Plaintiff. 69. Plaintiff relied upon the representations of the Defendant by filing written claims in November of 1998. 10 70. Plaintiff has suffered damage as a result of relying on the representations of Defendant. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, punitive damages, and for such other relief as this Honorable Court may deem appropriate. COUNT 5 - VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 71. Plaintiff incorporates herein by reference the allegations set forth in paragraphs I through 70 as though the same were fully set forth herein at length. 72. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law (73 P.S. Sect 201-1 et seq.) because Defendant has employed unfair or deceptive acts or practices. 73. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law because Defendant has represented that services provided by Defendant have benefits which they do not have. 74. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law because Defendant has engaged in other fraudulent or deceptive conduct which has created a likelihood of confusion or misunderstanding, including: a. misrepresenting pertinent fact or policy or contract provisions relating to coverage at issue; b. failing to adopt and implement reasonable standards for the prompt investigation of claims arising under the policy; C. refusing to pay claims without conducting a reasonable investigation based upon all available information; and/or d. not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which the Defendant's liability under the policy has become reasonably clear. 75. Defendant's actions constitute a violation of the Unfair Trade Practices and Consumer Protection Law for reasons yet to be discovered. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of costs, interest, attorneys' fees, treble damages, and for such other relief as this Honorable Court may deem appropriate. COUNT 6- VIOLATION OF 42 PA C S §8371 76. Plaintiff incorporates herein by reference the allegations set forth in paragraphs I through 75 as though the same were fully set forth herein at length. 77. Defendant's denial of Plaintiff's claims has been made in bad faith. 12 78. Defendant has acted in bad faith toward the Plaintiff. 79. Defendant's actions constitute violation of 42 PA.C.S.A. §8371 because of said bad faith. WHEREFORE, Plaintiff, Sandra M. Reaka, respectfully requests that this Honorable Court enter judgment in her favor in an amount in excess of $101,490.59, together with an award of interest on the amount of Plaintiffs claim in an amount equal to the prime rate of interest plus 3%, punitive damages, and court costs and attorney fees. RESPECTFULLY SUBMITTED: William C. Kollas, Esquire Supreme Court I.D. No. 06341 dames W. Kollas, Esquire Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEYS FOR PLAINTIFF Dated: 13 SANDRA M. REAKA, IN THE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH E. REAKA, DECEASED, Plaintiff V. NO. 1999-4844 AMERICAN TRAVELERS LIFE CIVIL ACTION - LAW INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED VERIFICATION 1, SANDRA M. REAKA, verify that the statements made in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unsworn falsification to authorities. By-- c? 4C? _& ?- Sandra M. Reaka DATE. ) h 0/ of 7 THIS IS NOT A MEDICARE SUPPLEMENT POLICY. .I "UND60 ,, V\J? Al `O 'WSURA149- AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18976 (REFERRED TO IN THIS POLICY AS 'WE," .. US," OR "OUR") PREMIUM MAY BE INCREASED UPON THE RENEWAL DATE. In this policy 'You" or "your" refers to the Insured named in the Schedule.,, .. •„ We agree to insure you against loss due to Injury or Sickness to the extent stated in this,&Glcy,Payment of benefits under this Polloy x011 be sybject;tb all of its terms., V ; CONSIDERATION AND TERMS r_.. This policy is issued in consideration of: (1) the advance payment of the Initial Premium on or before the Effective Date; and (2) the statements contained in the attached application. This Policy is effective at 12 Noon, at your residence, on the Effective Date shown in the Schedule. It continues in force for the Term specified In the Schedule subject to the Grace Period. This Policy may lie renewed for411ke terms in accordance with the Renewability provision, :..?+ 4 . 'NOTICE OF TEN DAf ilIGHT TO EXAMINE POLICY Within ten (10) days of receipt of this Policy, you may return it to us or our authorized agent for any reason. Immedi- ately upon our receipt as stated, the Policy x011 be Consldeied'void from the beginning. Any premium paid will be rafUrldad:.• ..;,:{?'S-'`; At:.-.aFrsx:. _..?.,.' RENEWABILITY - GUARANTEED RENEWABLE This policy is guaranteed renewable for your lifetime or until the Policy's Aggregate Maximum Benefit Period has been reached. It may be kept in force by the timely payment of premiums. We cannot cancel this Policy as long as you pay the premiums. WO can change the `reriepW' premium rates. We can only change them If they are changed f6r all policies in your slate-oh this policy form, Renewal premiums due after a change is implemented will be based on the new rate. Notice of any charge in rates vA be sent at least 30 days in advance. Premium rates can rioEa6har4ed more than once e yeer'.r , r d> SUPPLEMENTAL NURSING HOME AND HOME HEALTH CARE POLICY. . , t kv- k •1 ..8888..pppp? Ar. TABLE OF CONTENTS 1. BENEFIT PROVISIONS Pape Nursing Home Facility Benefits . .......... .. ......... Home Health Care Benefits .. ............... R .................................. . 5 ....... ecurrent Benefit Priods ............. Aggregate Maximum Policy Benefd Pe.riod . .................... ............... 5 ............................... 5 ...... Waiver of Premium Benefit .................. .................... 8 2. ....... DEFINITIONS ............... 8 3. . EXCLUSIONS AND LIMITATIONS ............. 2,5 4. ... . . . GENERAL PROVISIONS ................. . . . . . . . . . 8 5. .......... PRE-EXISTING CONDITIONS LIMITATIONS ....... . ................................. 8.7 ?. . . . . . DEFINITIONS "APPROVED PRACTITIONER" means a licensed registered graduate professional nurse (R.N.), licensed practical nurse (L.P.N.), chemotherapy specialist. Physical therapist. Inhalation therapist, or speech therapist. No person wi0 be considered an Approved Practitioner unless he or she is certified andfor licensed in accordance with all applicable Federal, state, and local laws end regulations to provide the_servtces and su ies - .... -? - ? _....You,receive... . is H • "ELIMINATION PERIOD" means the will be payable under this period Of time, stated on the Policy Schedule Page, which must pass baton. L while the policy. The Insured must satisfy this Elimination Period requirement for each con. policy is in force, which begins after 180 consecutive days of nonconffnernerd in a nursing home •; .:. 7eclply However, if a second nursing home facility confinement is insured within 180 days of discharge from a nurs• .+' liip home facility, for which benefits were payable under this policy, this confinement will be considered a continuation of the first nursing home facility confinement. No elimination period Will be required in this instance, or prior stay of 3 consecutive days. hospital "HOSPITAL" means an institution (1) operated pursuant to law; (2) maintaining and operating, either on its promises or in facilities available to it on a prearranged basis, medical diagnostic and major surgical facilities for the medal :.:' : care and treatment of sick or injured persona on an inpatient basis; and (3) provides 24 hour nursing service by or 14 under the suparvision of registered graduate professional nurses (R.N.'s) and provides the services of one or more a., .: Physicians. " HOSPITAL" does not include: (1) convalescent homes; (2) convalesces, rest or nursing fadfties; (3) facilities for the aged. drug or alcoholic rehabilitation; (4) facilities primarily affording custodial, rest, geriatric or educational care. a speciAl unit primarily used for extended care or as a nursi ng, rest, or convalescent home shell not be considered Hospal. "INJURY" means accidental bodily injury sustained while this Policy is in force. Such Injury must cause loss directly and independently of all other causes and result in loss covered by this Policy. "NURSING HOME FACILITY" means a skilled nursing, intermediate care, or custodial care Willy which: (1) pro violas nursing care on an inpatient basis; (2) is other than purely residential in nature, exoept for custodial care faaTAee; (3) i8 duly licensed by the jurisdiction in which it Is located to provide the services you receive; and (4) is operated -. purauernt to applicable Wawa aril regulations. "NURSING HOME FACILITY CARE" means care of the type regularly and customarily given Nursing Home Fartillty "s Patlorgs on a 24-hour-a-&y basis. it must be: (1) care based upon a Physician's regular wiNten order` need, (2) care that can ? and either. improve or maintain the Insured Person's oonIllor or attempt to do sai* (3) Wi ying Its per. Qualified pro( eaeional personnel; and (4) care which is riot normally available in a hospital. PHYSICIAN" means any licensed practitioner of the healing arts operating within the :scope of No or her license. ;.:.: .POLICY IN FORCE" me" the policy will be in force on the effective date Rated in #is Schedule Page for new e? icy will bi, In force six months following the affective date listed in the Schedule Page for pre- "('% ? viii. L,t;ICp Bg Pq r , ?, , Pape Two h . ` - - POLICY SCHEDULE POLICY NUMBER 142681 8/07/89 EFFECTIVE DATE INSURED KENNETH E REAKA 8/07/90 FIRST RENEWAL DATE ACE 69 ANNUALLY TERM INITIAL PREMIUM 1290.00 1280.00 RENEWAL PREMIUM BENEFITS NURSING HOME BENEFITS Monthly Benefit Amount Elimination Period 2000 Maximum Benefit Period 0 Days 5 Year(s) HOME HEALTH CARE BENEFITS Monthly Benefit Amount Aggregate Maximum Home Health a 1000 Care Benefit Period 1 Year Aggregate Maximum Policy Benefit Period 5 Year(s) THE PREMIUMS SHOWN ABOVE INCLUDE PREMIUMS FOR ANY BENEFIT RIDERS ISSUED ON THE SAME DATE AS THIS POLICY. BENEFIT RIDERS ISSUED ON THE SAME DATE AS THE POLICY: BIR-88 PA, AUTOMATIC BENEFIT INCREASE RIDER: BENEFITS WILL INCREASE 5% ON EACH OF THE FIRST FIFTEEN YEAR ANNIVERSARY DATES. 1t ?."'WC,P-88 PA Page Three 1101E OR1CE USE 0"' PRICY / - - EQ. . gC'{ w 7. p -. ___- ISSUE DAiE REDUESIED raaaeeta [J 1 FAY Tyco Berlea Mo Period 8 OMWATIC TOW N PrsrlYatl Term PA" Md Iao.ue uw s Od NCP /J ar" _ r.,qe) Facility r Rder 0fx*xkN Pdty F d MGGM ? Y"da 100 ? S a e Owft PLEASE PRINT IN BLACK INK Must Be Answered Completely or the Application Will Be APPLICATION FOR HEALTH INSURANCE TO: PROPOSED Name / ?/ (a) Age (b) Ome or Binh (e) See (S Sutus INSURED n E. `PR./` ct_.. ?? Seeer Adorn (a) He 1 (9 we9m (9) Saar SeeurdY N bet 77? e e 06 Ir Y?/? ?[ S / Slate / LP m) Teephone Numoe ----- - 9o Ann- / 6 --DO NOT APPL FOR THIS POLICY IF THE ANSWER IS YES TO ANY PART OF THIS OUESTION 1.. 1. (a) To the best of your knowledge and belief, do you have any or the following conditions: internal cancer (now or within the past year); leukemia; cirrhosis of the liver; Alzheimer's disease; any bran disease or disorder, whether organic or riot; kidney failure requiring dialysis; multiple sdero&s;? paraplegia or quadriplegia; or amputations arising from diabetes or a circulatory disorder; or osteoporosis? Yee O No ?' (b) Are you currently a resident in a nursing care or similar facility, or have confined in such a facility during the last 24 months; or are you unable to walk, bedridden, inconfinent, or unable to pert every v ties (such as eating, dressing, bathing, cooking w Bloat the ad of a wheelchair or walker or another person; or require the use en? Yes O No tZ? (c) Are you currently confined in a hospital. or have you been confined in h 'tall three or more times in the last 24 months?Yss 0 No IF THE ANSWERS ARE NO TO THE PRECEDING QUESTION, PLEASE ANSWER THIS QUESTION FULLY. COMPLETE DETAILS ARE NEEDED TO PROPERLY DETERMINE THE PREMIUM TO BE CHARGED IN ACCORDANCE WITH THE COMPANY'S EVALUATOR CHART. 2. (a) Ust al conditions for which you are currently being treated or have been treated in the last five years. IF NONE, ENTER NONE. IMPORTANT: INCLUDE EXACT NATURE OF ILLNESS OR INJURY, DATES OF EXAMINATIONS AND TREATMENT RECEIVED, AND PROGNOSIS. Use reverse side or separate sheet if more space is needed. lCc 6 t n vP s °e, - asv - 3 ?4 G ec,? _CAc y G/?. (b) Y, 3. Pre•e)dsgrlg conditions are heaRh conditions rat whdadvice or treatment was recor aeecdJ* date of coverage. Do you understand that confinement or other foss due to a the S morph period following the effective date of your coverage? 4. Lust ale long term care nursing home coverage (more than 100 days) in force in this or any Company. State H any coverage is to be regaced or changed by the insurance being applied for. If so, have you received the required notice from regarding replacement? Yea O No 0 Name d Coat P No. Daily or Monthty Benefd Maximum Benefd Period To Be Replaceor? YM 0 moo YN 0 moo S. Is the PW applied for suitable for your insurance needs and are you able to afford this insurance? Yom) p O I have reeaa0d the answers to the above questions before siprdnQ this application. 1 represent that the answers are correctly written as given by me and are true and complete to the best of my knowledge and belief. I agree that the Company is not bound by an statement made by or to any agent urtleeeivrilten herein. I certify that I have received from the agent any required outline of coverage and Medcare Supplement Buyer's Guide 111,01T eby autldrin any insurance comparry, hospital, nursing hone or other medical faa7' yeician a other medical acOtloner having on. to ginel. give such ]nfamaGoi to American Travellers surance Company, l a photo of this 8u ratio 1 eall dge of me valid as as or health be t e on yrt !? Died. this day of All 19 C. ' RoPoud kawW'e Sipnalae I hsvAdp.?Pwed the current insurance coverage of the Pr Insured and find that additional ooverage of the Mr, and amount applied II; _ .for the Proposed IrisunKs roe& I cw : (1)1 have accuratey recorded Information supoled by thposed Insured; (2? I rtt .? e`!egti!ed and ME!=Suppl ement a Guide to the Proposed Insured At the time appficatlon was made L i,i ? .. 'r T 1, Neoe d A9m (Prim Agae? or received in the 6 month period just before Tg condition will not be covered N Y 13 ns no "PRE-EXISTING CONDITION" means a condition for which medical advice or treatment was recommended by or received from a physician within a six month period immediately preceding the Effective Date of coverage. "REASONABLE CHARGE" means a charge which does not exceed the regular and customary charges for, or the fair and reasonable value of, the services and supplies you receive. The Reasonable Charge will be determined by comparing the expense you incur with the charges made for similar services and supplies in the locality concerned to persons whose age and medical condition are similar to yours. "SICKNESS" means sickness, illness or disease diagnosed or treated by a Priysician after this Policy's Effective Date and while this Policy is in force. BENEFIT PROVISIONS NURSING HOME FACILTIY BENEFITS We will pay the applicable Monthly Benefit Amount set forth in the Policy Schedule for each month you are confined in a Nursing Home Facility, as defined. Benefits start with the day after the Elimination Period shown in the Policy Schedule. Payments are subject to the Aggregate Maximum Policy Benefit Period described below. We will pay this benefit only if your confinement: (1) begins: (a) while this Policy is in force; and (b) within 30 days of discharge from a Hospital stay which began while this Policy was in force and which continued for not less than 3 consecutive days; and (2) is required due to Injury or Sickness which is the same as or directly related to that which caused the prior Hospital stay; and (3) is under a planned program of observation and treatment in accordance with the standards of medical practice for the Sickness or Injury which made the confinement necessary. Your attending Physician must: (1) personally examine you each month you are so confined; and (2) certify as to the degree of care needed. Benefits for periods of confinement of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of confinement. MAXIMUM BENEFIT PERIODS - The Maximum Benefit Periods for confinement in a Nursing Home Facility, as defined, are set forth in the Policy Schedule. The Maximum Benefit Period is the maximum number of monthly benefits we will pay for ail confinements in a nursing home facility, as defined. HOME HEALTH CARE BENEFITS The benefits stated below will be paid for care which you receive in your home from an Approved Practitioner while your policy is in force, to the extent such care is: 1) certified as required by a physician then attending you for the Injury or Sickness for which care is received from an Approved Practitioner; and 2) is received during a Benefit Period which begins (a) within 30 days after youa re discharged from a Nursing Home Facility confinement of at least 30 days and (b) if such Nursing Home Facility confinement followed within 30 days after the end of a Hospital stay of at least 3 consecutive days. We will pay the Monthly Home Health Care Benefit Amount set forth in the PolicySchedule for each month you receive care at home from an Approved Practitioner. Benefits will be paid towards the usual, customary, and reasonable charge for services provided by the Approved Practitioner. Benefits for Home Health Care Services of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of services. The Policy Schedule sets forth an Aggregate Maximum Home Health Care Benefit Period. That Aggregate Maximum Is the maximum number of monthly benefits we will pay for Home Health Care Services. A Benefit Period will end when you have not received any such care from an Approved Practitioner for 90 consecutive days. RECURRENT BENEFIT PERIODS If Nursing Home Facility benefits have been paid and you are again confined, the second confinement will be con• sidered a continuation of the first unless separated by at lesat 180 consecutive days. If separated by 180 consecutive days, the second confinement will be considered to be a new one. In the latter case, a new Elimination Period applies as well as the requirements of a prior hospitalization as stated in the Nursing Home Facility Benefit Provision. Other- wise. no Separate Elimination Period will apply. ATL•NCP-Ba-PA Page Five ,. u AGGREGATE MAXIMUM POLICY BENEFIT PERIOD r - The Schedule also sets forth an Aggregate Maximum Policy Benefit Period. That aggregate maximum le the max. Imum benefit period we will pay under this Policy for confinement in any combination of Nursing Home Facilities and Home Health Care during the Ids of this policy. WAIVER OF PREMIUM. BENEFIT We will waive the payment of each premium falling due after the commencement of a covered Nursing Home Facility confinement, and during its uninterrupted continuance, subject to the following: (1) Written proof of confinement must be received as soon as reasonably possible during your lifetime; (2) The confinement must be one for which benefits are payable under this Policy; and (3) You must be continuously confined for a period of 180 days before the benefit provided herein is applied. The premium payment waived will be that premium according to the mode of payment in effect at time of commence- ment of confinement - i.e. If payments are normally paid quarterly, we waive the premium payment for the same duration and for any successive periods that may become due while confined. PRE-EXISTING CONDITIONS LIMITATION No loss due to a Pre-existing Condition will be covered unless that loss begins more than six months after the effective date of coverage. EXCLUSIONS AND LIMITATIONS This Policy does not cover loss caused by: (1) routine physical examinations; (2) simple rest care, hotel privileges or residential care; (3) declared or undeclared war or act thereof; (4) mental, nervous or emotional disorders without demonstrable organic origin (Alzheimer's Disease is covered, as any other sickness); and (5) charges for services, use of facilities or supplies that you are not legally obligated to pay. GENERAL PROVISIONS ENTIRE CONTRACT: This policy, including any attached papers, constitutes the entire contract. No change is valid until: (1) approved by one of our executive officers; and (2) endorsed hereon or attached hereto. No agent has authority to change this Policy or to waive any of its provisions. TIME LIMIT ON CERTAIN DEFENSES: (a) After two (2) years from the effective date of coverage, no misstatements, except fraudulent ones, made in the application may be used to void this Policy. or that coverage, or deny a claim for loss incurred commencing after the two (2) year period. (b) No claim for loss incurred commencing after six (6) months from the effective date of coverage will be reduced or denied because a sickness or physical condition had existed six months before the effective date. GRACE PERIOD: A grace period of 31 days is granted for the payment of each premium due after the first premium, during which time the Policy continues in force. REINSTATEMENT: If the renewal premium is not paid before the Grace Period ends, this policy will lapse. Later ac- ceptance of the premium by us, or by our agent authorized to accept payment, without requiring an application for reinstatement will reinstate the Policy. If we require a reinstatement application, you will be issued a conditional receipt for the premium. If we approve your reinstatement application, the Policy will be reinstated as of the date of our approval. If we disapprove your applica- tion. we must do so in writing within thirty (30) days of the conditional receipt. Otherwise, your Policy will be reinstated thirty (30) days after the date of the conditional receipt. The reinstated Policy will cover only loss resulting from accidental injury as may occur after the date of reinstatement and loss due to sickness as may begin more than ten (10) days after that date. In all other respects, both your rights and our rights under the Policy will be the same as before termination. Any premiums we accept for a reinstatement will be applied to a period for which premiums have not been paid. No premium will be applied to any period more than sixty (60) days before the date of reinstatement. ATL•NCP•88•PA Page Six W, .0. NOTICE OF CLAIM: We must receive written notice of claim within six (6) months of toss. It rat, as soon as reasonably passible. Notice to the Home Office or authorized agent is acceptable. CLAIM FORMS. We will furnish forms to prove bas. We will do so upon our receipt of notice of claim. K forms are not fu within en days, claimant will be considered to have coinplied ff. within the time for filing proof, the claimant gives us p specifically describing the loss. PROOF OF LOSS: The claimant must give us written proof of loss within six R months of it happening. M he or she I has a good reason for rat doing so, we will not contest the claim. However, the claimant must give us prod no later 1 than one (1) year from the time normally required unless legally fncapeble. TIME OF PAYMENT payment Is provided wall CLAIMS: Benefits payable under this Policy for any Ioss other than loss for which periodic ` paid scoured benefits for loss d immediately upon receipt of written proof of loss. Subject to written prod of lossfor which , t unpaid at the end of our liability will bperiodic paid mpmeediately pon rrecceiptl of wrPdten monthly. l y' Any balance oiolng PAYMENT OF CLAIMS: All benefits wig be payable to you. Any accrued benefits unpaid at the Insured's death will be paid to the estate. ?F• PHYSICAL EXAMINATION: At our expense, we shall have the right and opportunity ns any claimant and as often as we may reasonably require while a claim is y to examine any when pending. ?k LEGAL ACTIONS: No legal or equitable action shall be brought to recover on this Policy sooner than sixty (60) days 'after written proof of loss has been furnished. No action shall be brought after the end of three (3) years (n South Carolina six (6) years; in Kansas five (5) years) from the time written proof of loss is required. MISSTATEMENT OF AGE: If your age has been misstated, ail amounts payable shall be such as the premium paid would have purchased at the correct age. CONFORMITY WITH STATE STATUTES: Any provision of this Policy, which on its Effective Date conflicts with the statutes of your state on such date is hereby amended to conform to its minimum requirements. UNPAID PREMIUM: When a claim is paid, any premium due and unpaid may be deducted from the claim payment. .t I ILLEGAL OCCUPATION: We will not be liable for loss due to your being engaged in an Illegal oocupation or for which a contributing cause was your commission of or attempt to commit a felony. INTOXICANTS AND NARCOTICS: We will not be liable for loss due to your being intoxicated or being under the influence of a narcotic unless administered on a Physician's advice. IN WITNESS WHEREOF, we have caused this Policy to be signed by our President and Secretary. Susan Mankowski Secretary Countersignature of Licensed Resident Agent: John A PovMI President (If required by State) rL-NCP F. ,. ?XCa*7,. Paps Seven. ?4. r` IMPORTANT MESSAGE TO OUR POLICYHOLDERS Dear Policyholder: Cancelling a health insurance ment Policy you already own and purchasing a new one, due to encourage. by any agent, is called replacement. Some states have laws which forbid any misrepresentation or Incomplete comparison by any agent that may occur at the time of replacement. These laws re- quire a you. and signed comparison given to y you.. of your existing policy and the recommended new policy be given ' Beware of anyone who urges you to replace this policy without s slowing you time to catefully investigate ,. Z_(epiacement proposal, or discourages you from talking with a representative of the com kw fiol is being recommended r•"replacement. 1?arrY moose For your protection, if you are encouraged to replace this policy, we urge you to seek-advice and take the time to investigate any recommendation. Keep in mind that you can request changes in your ; .r,,edicy long after its effective date. John A. Powell t,, .. President r' i , . - ' a •;'?' .". . '.fig,. SENTAL NURSING HOME - D HEALTH CARE POLICY. a y G? w EFPA; •. „? ..? s 4 4 , Page Eight 44. RA7+ ?wm?nce u•+-irr-:n.,...- ..... .,».. - _.. _. ._.. ?i s r AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18976 AUTOMATIC BENEFIT INCREASE RIDER This rider will be a part of the policy to which it is attached; that policy will be called "the Policy" in this rider. Except as stated in this rider, all terms, conditions, limits, and exceptions of the Policy apply to this rider as to the Policy. This rider is issued In consideration of (1) the statements in the application for it and (2) advance payment of the first Rider Premium. The Rider Premium is included in the premium for the Policy which is shown in the Policy Schedule EFFECTIVE DATE This rider takes effect as of the Policy Date, to which this rider is attached. AUTOMATIC BENEFIT INCREASE In consideration of the first Rider Premium, we will increase your Monthly Nursing Home Facility Benefit and your Home Health Care Benefit on each of the first fifteen (15) policy year anniversary dates. The Benefit increase will equal five percent (546) of the Policy's initial Monthly Nursing Home Facility Benefit, and Home Health Care Benefit stated in the Policy Schedule Page. Ad example of the increased benefit, based upon an initial $100.oo Monthly Nursing Home Facility Benefit is: POLICY YEAR ANNIVERSARY 1 2 3 4 5 10 15 16 and thereafter MONTHLY BENEFIT AMOUNT $105.00 110.00 115.00 120.00 125.00 150.00 175.00 175.00 The increase will apply only to benefits payable on or after the date of increase, even tf confined in a Nursing Home Facility or receiving Home Health Care services at that time. If your policy lapses and Is subsequently reinstated under the provisions of the attached policy, the benefit level which would have been applicable had coverage remained continuously in force will be payable. TERMINATION This rider Will terminate on the earlier ot: (a) The date the Policy terminates; or (b) The end of the last period for which the premium required to keep this rider in force is paid, subject to "Grace Period" in the Policy. In witness Of the above, AMERICAN TRAVELLERS LIFE INSURANCE. COMPANY has caused this rider to be signed by its President. John A. Powell President ATL-BIR488 Sandra M. Rosh 42 Al>yed Drive November 12, 1998 Lewiabeny, PA. 17339 AMERICAN TRAVELERS LEE INSURANCE COMPANY 1800 Street Road Warrington, PA. 18976 Re : Policy # 142681 Kenneth E. Reeks i Effective Date : 08/89 I! Paid Through : 01/98 Attn: Claima?Processing To Whom It May Concern:: This letter is written request for reimbursement of funds paid for the cam of Kenneth Earl Reeks under the Aforementioned policy. 94 thru Oc Kenneth Earl Reaka passed away October 25.1997. Prior to his demise, from Sept 94 thru Oct 9 97, , Kemeth Reaka raided in three separate custodlaVskilled 24 hour care facilities. Completed Facilities and Physician Statements are submitted for claim processing on said care. The ,. r following monetary notation is for auditing assistance. Elesy Manor, Inc. Admitted : 09/01/94 Cost Per Month Paid : 1,600.00-1640.00 4012 Buckingham Road Discharged : 10/95 Claim Amount Baltimore, Maryland 21207 $ 19,480.00 A (E -Company) utumn Senior Living 0 Admitted :11/28/95 Rem d Security & First Month Paid : $ 1,400.00 11 Neel Avenue 110 Neel Avenue ove : 12/02/96 Cost Per Month Paid : 7 @ $ 1,650.00 Glyndon, Maryland 21136 I @ $ 11680.00 4 Claim Amount : $ $ 1,750.00 21,630.00 Vann Senior Living 12 Cedarhill Road Admitted : 12/03/96 Cost Per Month Paid $ 1 850 00 Randallsfown, Maryland Died : 10/25/97 Claim Amount : S , . 20,350.00 Claim Total: $ 61,460.00 If any additional information is required please advise. A Death Certificate and a copy of •Letfers of Testamentary" are enclosed. Please make the check out and mail as follows: Estate of Kenneth Earl Reaka A 42 Alfred Drive 1 Lewisberry, PA. 17339 Respectfully, ?- c`t?-cl Sandra M. Reaka Executor EXHIBIT; au•nam iana?unnaiu"c"? . ar.w. awo Marty 011ka wrrearrnr, /A • An Lft hpMa c,,,h e„y b CA ftft aredrb owerimmi. ro bu 611901 • CAkW, 2 606116111 NURSING FACILITY CLAIM FORM Claim Information: 1-800.441.3878 1, This form must be fully completed and signed by You, Your Physician, and the Nursing Fadlky 2. Slpn and Date the patients suthodzsdn below. THIS AUTHORIZATION MUST BE 810NED AND DATED BY THE INSURED. If signed by a Power of Attorney, please attach a copy of the P.G.A. AGREEMENT, 3. Attach a copy of the hospital bill or Medicare Part A Statement for confinement immediately preceding admiseln to nursing facility. 4. Attach complete copy of itemized Wiling statement from nursing facility (we do not accept advance billing). To RF Cnssdr even ow ...,.... . PATIENT'S AUTHORIZATION 1 hereby airthorize all physicians, hospitals, clinics; medical practitioners, disPeAiafss, nursing homes or other medical orQenedieroalIV related faciligas (Including other 1 urance companies, Blue Cross-Blue Shield), employer, or governmental TRAV sentative review a copy of your rrrecords pertaining to the exxamination, treatm nt,ChiistoP?Y or its ion and medical obtain or the undersigned. A photostatic copy of this authorizatiori'shall be as valid as the ori?ginaal on and expenses of DATE SIGNATURE X POLICY Your state requires us to notify you that: An 111 111:111 1 NUMBER L p / "and company or other person, files an application fo insurance or statement f dam intent to containing any materially felse n insurance information or conceals for the purpose of misleading, information concerning any fact material thereto commits a fraudulent hsurnee act which is a -I-- and subjects such person to criminal and evil penalties. TO BE COMPLETED BY NURSING FACILITY 1. Patient's Name: ?+ nne_?h Q a j' 4 Mailing Address: 2. Name, Address #nd Phpne Numbpt ?f Nurn9 Home: Floc? ri, . ?-r c 3. Please give type of Incense and license w er at wGas NN Bc0 7ur??n Iny by the state and date o4 ati eon: ra S r W 4. Fed f4rmberof beds: ll adersl Tax I.D. - 1 r 5. To which pardon of facility is this patient c fi d? ne 8. Describe 48rvices Pro ded o Is patient. ., s e • 7. Is this facil' IY gaged in providing, n 'tY pri ari en a in addition to room and board accommodation, skilled nursing care under the su ervisi f 4 1 p on o a duly licensed Physician? B• Does this facility provide continuous 24 h Y8S No 121- - our-a-day nursing services by or under the supervision of a registered gr uste professional nurse (R.N.) or licensed practical nurse (L P N )? RN on staff 8 Y 0' . . . hrs. per day LPN on staff hrs. per day RN on call hrs. er day LPN on ll es No Q ca Is your facility 10. Is patient's tay approved o Medicare Ben his. per day it plits? d I a rov Yes ? No 'fir pp y e es, what dates did Medicare cover? 11. Are daily medical "12• Does facility maintain Written Phys ciao patient? s o en on each patient? 13. Is It a requirement of thi f -/ Yex 9 N s acility that patients be admitted on the specific recommendation of a licensed physician? d o 14. Name, a dress and phone number of admitting physician: Yes 0 No 15. Name, address and phone number of errend' physician: is. Adntitting Dlagnosi : 17. Admission Data: ! -I - $ - Discharge Date: srp? 1 Date: 4 -2.7-9 V Administrator Signature: \d nPn.-?? m P Q ? ? AT-4-PA • .Y ? •IM1 1. ,?I• ?; SeniOF .13 Hoining ,r To Whom it May Concern: Total fees paid to Elesy Manor Inc. by Mr. Kenneth Reeks for assisted fift pre ~ are as follows: Sep-94 $ 1,800 Jan-95 S Oct-94 1,600 Feb-95 1800 Now94 1,800 DOC-94 1,800 Totall 1994 S 8,400 Total 1995 Grand total paid Sincerely, i1 " s Brenda L Street, RN Administrator $ 19,480 4012 Buckingham Road, Baltimore, Maryland 21207 410.484.0814 Mar-95 1,640 Apr-95 1,640 May-96 1,640 Jun-95 1,640 Jul-95 1,640 Aug-95 1,840 SOP-95_ 1,640 $ 13,080 . ?. DEPARTMENT OF HEALTH AND MENTAL HYGIENE 4201 PA7TERSON AVENUE • BALTIMORE, MARYLAND 21216,2299 Parris N. Otendenln0 Oowmor August 25,1998 8SmMartin P. et" Wes. M.D., J.D. Ms. Darlene Iuael 218 Bond Avenue wn. Maryland 21136 RE: AUTUMN SENIOR LIMG 110 NEEL AVENUE GLYNDON, MARYLAND 21136 Dear Ms. Imael: Ibis is m tapoote to YOM telephone cmvenmdon with Ma. Lama N Complaint Unit, regarding the written aoIPlaiot that you filed with this office Manag 30, IM an bdWof s of tine Assisted Living bK. ??(R.) who wu A formerrttddent atdaalwve mfaieneadad&m On Tammy 1S,1997 anon-site vuk was Y surveyor firm Lrcasing and Certification at 110 Neel Avenue, Olymd Maryland. Although yaw lather had been mlgcsW firm t!:c Lamrp, i?.i-: u w " ta addtta. cmry conformed that your father was a forme: resident at the suggest The ausveYorwu wnbb to validate the allegatiom dmiog die lamluy 1S,1997 via However, ibis does not that the situation did not occur as you described it Records in this office reveal that the registration permit at the facility was issued to W. Carlom Holloway who had moved 8om the home. In October of 1996 Mr. Holloway sent a letter to this Office mfomaing m that he was m longer associated with Auansn House. However, he failed to relinquish die mgwtmu n peek. Durm g the on-site vni% a staffpmm at the home voluntarily surrendered the permit to a smveyor fiom this office. If you have any questions, please contact me at (410) 764-3755. ly yours, estine A. Williams Survey Coordinator Long Term Care Licensing and Certification Adminishation EAW=a w: Laura Nottingham Registration File File cAwp6iummul Tun FOR DISABLED MARYLAND RELAY SERVICE 1•800.736.2758 &42 LOGS 27Sn' 96994 x'OOOOOSSOOOd nommommoommo? r KENNETH E. REAKA DARLENE REAKA.ISRAEL 7018 07 RESERVOIR ROAD ?(f MECHANICMRO, PA 170666147 _ - L19 131:3%1: .,y Pay to Rle i ' order of U I $ $? O'? It LA L 014 0•* 1 D o l l a r s Mellon Bank Imo :031300821t: L42 L065275n' 970&8 ,x0000085 00 0e 550.000+ 850.000+ 1,650.000+ 19650.000+ 19650.000+ 19650.000+ 19650•!100+ 19650.000+ 19650.007+ 19680.Oo0+ 19750.000+. 19750.000+ 19750.000+ 19750.000+ 219630.000* :NNETH E. REAKA 7023 ,RLENE REAKA•ISRAEL RESERVOIR ROAD 'HANICSBURO, PA 17OW6147 i ,a .u 19?i1 le a the I $ 11,5D. °l'g8 r s Uut Mellon Bank 91r? YY, Ml 9116d3?, (?Cl.t?St.! ?LiPuAD ?i0.•I?A 1?(r?O _Y 03&30082&1: 142 &Q6527516 97023 9x0000L650009x -: KENNRTN E. RRAKA DARLENE REAKA•RIRAEL 4 6994 7 REt[1VOM ROAD MECHANC66U1p• PA 170064147 99,9? gesa. KENNETH E. REAKA 7043 DARLENE REAKA-ISRAEL 117 RESERVOIR ROAD MECHANICSBURG. PA 170060117 lp Ou M DARLLENE A REAKA4$RAEL 417 RESERVOIR ROAD MECHANICSBURO, PA 170064147 Pay to the order a_ AL?&_to $ l(QS0, 68 . Zr ?1 77 9' ® Mellon Bank Memo auaLJNA 4`I M Cn ? I Q(R.G?-I?JSfGl.LJC 4031300BELI: 142 652751' 97043 r00000&65000.0 KENNETH E. REAKA 705q DARLENE REAKA-ISRAEL 117 RESERVOIR ROAD MECHANICSBURO, PA 170ss-e147 ?ma/C.G ty, 313 4 ® Mellon Bank W ?• .1 ¦W.eW,ei 1:03&30082&1: &42 &065275N 97055 .r'0000&65000.p . 7 _I03&3008211: 142 &065275E' 9703& x'0000&r.5000.o r KENNETH E. REAM DARLENE REAKA49WAEL a1 ?;0S 417 REBEMOIR ROAD MECK NICBBURD, PA 17066!147 7s / IV}rfj.? _ ?9/- ..?M, - 3? Poyto1M ortl*r or $ /?. ? _ - ?? ,,pp ?? ® MNI? Sank MO O ' . M 1. 1:0 3 13008 2 31: 442 i0652751O 0 970561r0000i65000O' KENNETH E. REAKA DARLENE REAKA-ISRAEL ' 41 7080 7 RESERVOIR ROAD MECNANMBURO, PA 17066!117 - . 19 SU N ?7 L orclww --Sr0-6-I I a r i © Melly Bann . 1:0 3 4 3008 2 41: 4162 406527510 97028(3 ,00000i6500010 KENNETH E. REAKA DARLENE REAKA-ISRAEL 417 RESERVOIR ROAD MECNANICSBURO. PA 17055-BU7 Vie. `/•7??? 7092 ii, $ «so. CYZ) . Mellon Bank () ?/ r & qd r 1:0 3 4 3008 2 41: 4162 306527510 9 70 9 2.00000 4r. 5onn 0 Ptlv Iroorthe_ atle DAKENNETH RLENE E. RaIPAIL 7107 oARLSNt a 417 R 9$gft 1 pAMD pp?yMyy[GI4PAC[[UR4 /A 170804147 momN A fl. uvnvn m?/? M/r11{yN,lon Bank ? h'1BrT1aC^'?T?L ? r ,pap 7:03430082i1: i42.i06r¦52?5M no? 1'000016800001 ?z - KENNETH E. REAKA 7122 DARLENE REAKA4SRAEL ? I32 MMECNA RCiPAP 177CEM47 Dare IA 3 Rpytottle (n! //?? 1a ceder of Tn (?r?. _^ .? _- .. ® Mellon Bank ?) L - -T Memo ;r'LPl?Q 1:03i30082l &t, 2m n1 ~ i06 52 ?Sill 7122 010000 1 7 50001° KENNETH E. REAKA DARLENE REAKA.ISRAEL 7139 117 RESERVOIR ROAD 7eE.M MECMIOSSURG. PA 17DS"147 Date ?"/ 7 n 7U 14 Pw foxes ? /-v N9tp15776 s /7SD . coo 1' 61 . • - ..._ ® Mellon Bank MBII10 &! I 1:031300820: i42w10610152?SRS ? 39 010000 t? S000; UNNITH ` DA RLENE R!A?RAIL 7152 M'E 'A0{!ROEM IM7 Date / a Q s _ adwat e ® ? Bank 7 415 O ?' and No____ 7 :5678 Do y? ??-.;? JF' mom 9 &3 00300821,: 1 22M106?e5275No 7152 '0 x 000 L 7 50004' KENNETH E. REAKA DARLENE REAKM$RAEL, 7166 . ME 417 tiEa MW tqw MEC}MNICgeUflq PA 1705541 70Aee1{7 M Daf - JIM: Pavtoa D ., O fdBt 8 ._. _ ._ - / i l $ 1760. f n A 1 n CIl n ..eA? .n 1 / U.:? ? .. ?'.. \ _?/ . t. J w r??a`2T?":.? y /?uullpli Wff ® Mellon Bank n mem-W 403L30062Lt: L42,eL06i1'5275i' 7166 400000 1? 50004' ?dAlfBIGAN TRAY FLLERS L/F?E /HCrmeare r w Cwrrar CwrPeq? fPAhN fRPrna Of*@: anraarerr, PA • An Wo am~m C,,I h CA P?r•Y A"Wilir OV81"One8: PO fil 66949 • Cell It apse&ol NURSING FACIuTY CLAIM FORM Claim Information: 14800.441-3978 I - This form must be ful 2. M and Date the patent's a luthorization below. THIS AUTHORIZATION MUST BE SIGNED AND DATED BY THE INSURED. If signed by a Power of Attorney, plesse attach a COPY of the P.O.A. AGREEMENT. 3. Attach a copy of the hospital bill or Medicare Part A Statement for confinement immedutoly preceding admission to nursing facility. 4. Attach Complete COPY of itemized billing statement from nursing facility (we do not accept advance billing). TA an rnMPL=TOn ev, u-------_ r^ t iervT'S AUTHORIZATION 1 herby authorize all physicians, hospitals, clinics, medical practitioners, dispenssdes, nursing homes or other medics) or medially related facilities (including other insurance companies, Blue Cross-Blue Shield), eMPLIOVer, or governmental aOencY to Permit AMERICAN TRAVELLERS LIFE/ATL UFE INSURANCE COMPANY or its representative to obtain or review ¦ COPY of Your records pertaining to the examination, vestment, history. Proscription and medical expenses of the undersigned. A photostatic copy of this authorization shall be as valid as the original. DATE SIGNATURE X NOUMBER / . f t ' Your ste tsrep u rss us to notify you that: Any parson who, knowingly and with htartt to defraud any insurance company or other person. Gas an application for insurance or statement of claim containing t In any information or conceals for the purpose of misleading, information concerning any fact material t?too ? a frassdrtlent insurance act which is a crfine and subjects such person to criminal and civil penalties. BE C I . gMPLETED BY NURSING FACILITY; 1. Patient's Name: Mailing Address: _ n 2. N Ad ress a d Phone Number a Nursing Home: 3. a won°e I rc mb wa i u to your facility by the ante and date of 4. Federal Tax I.D. r(arr? Number of beds: 5- To which gprtion of facility is is Patient confin 7 6- Describe services provided to this patient. 7. Is this facility Primarily engaged in providing, in addition to room and board eccrommodation, skfied nursing car under the supervision of a duly Icensed Physician? t• 8. Does this facility provide continuous 24-hour-a-day nursing services by or under the supervision of Yes No l a roglittered graduate professional nurse (R.N.) or licensed practical nurse (L.P.N.I? Al RN on staff his. per day LPN on staff hrs. per day Yes ? No pY call his. per day 9. is Your facility approved for Medicare Benefits? on call hi per day 1 D. Is Patient's stay Medicare approved? If yes, what dates did Medicare covert Yes 13 Nom 11. Are daily madkaI records maintained on each patient? _/ 12. Dos facility maintain written physician's orders on each patient? yo" s No ? Yss No ?/ 13. Is it a re"fromant of this facility that Patients be admitted on the specific recommendation of s eurremly licensed physician? $1,10 14. !Name, address and phone number of edmitainy physician: Yes 13 No 16. dra a and number of nendin0 Ph 'cis ?. 18 . dlrttittAp Ding 17. Aelmtaeign Data: Discharge Dan: T era) Date: Administrator Signature: AT-ol TO BE COMPLETED BY ATTENDING PHYSICIAN: 1. Patients Name 2. Daps of Hospital ConftnemeM, if any. DOB 2'a& - ? v- Admit Discharge 3. Now, address and phone number of hospital: 4. Hospital Diagnosis: S. On what date did you first attend patient for the condition necessitating Nursing Home Confinement? 5 Data(s) you personally attended the patio it 8. Brief Medical Hi's'tory and Prior Treatment kdud hS dare concWva was &st o ipmxod. A'I'r rce Xc S ?'74?.+?I 4i'v Z.o'-ke ' iz, FFtn.-/ :/..iu -_ A-- J.- 7. Name and physician, H any: 8. Admitting diagnosis to the Nursing Home: -!b r=l2-e-fJVK (?2-2 -t;.e1aa4. Is treatment condnuing for admitting diagnosis: Yesd No ? 9. Tvoe of t-ro Genifted SkVW From: Intermediate From: Custodial From: Iv Other (specify) 10. Does patient require assistance with Activities of Daily If Yes, please indicate which ADL's Remarks: To: To: To: DID S?It From: To: Liv<rn?pp jq?'a17 7!s hl NO O Data: Signed: vl _ i Addresa:S?w? 'SCI v? ?.,? City: Phone !: lip 6 1 G 1)) . 6 " V Fee for medical records S -rig - Zip: Reaa• Provide Yaw FEDERAL TAX I.D._ S;-AQ I fr-Z5-' 10 Gparar 4, io a i m caw "0M "jpwy h a r•aoolsr-a17a • CNrov"ew.K QOeea0019 SUPPLEMENTARY NURSING HOME CARE ATTENDING PHYSICIAN STATEMENT N ORDER TO EXPEDITE THE PROCESSING OF YOUR CLAIM, PLEASE HAVE THIS FORM COMPLETED IN FULL AND iUBMITTED WITH YOUR MONTHLY BILLING STATEMENT. 1. Policy Number(s): TO BE COMPLETED BY INSURED 2. Full Name of insured: ?111?4 p/a Y'n 3. Matting Address: 4. PATIENT'S AUTHORIZ I hereby uthorize all phyysi or mewily related ficliids agency to permit AMEERRIG review a copy of your rata the undersigned. A photos --•- DATE- - Your state requires us to n camppaanrsyy or other person, I Info rnatbn or conceals for frsudid Insurance act, w arulrnng to copy of this YOU an W medical 1110vrwn6C 60MPANY Or its Dn, treatment, history, prescrip shall be as valid as the origin Any person who, knowingly and Ion for insurance or atotamam of misleading, information conami and subjects such person to erk (Claimant) 1. Date Admitted to Nursing Home: Date Discharged: ID 23 Name and address of Nursing Home: J' PA. 2. Admitting diagnosis to Nursing Home /-t V 3. Is treatment continuing for admitting diagnosis:. • .8 Yes ? No 4. Date(s) you personally attended the patient: ' !Ual - Z, 'Z52A7; '/&A2 5. Dates of Hospital confinements, if any: From: 'T To: Name and address of Hospital: 6. Type of Cared Certified Skilled: From: To: Intermediate: From: To: Custodial: From: ?/ r17 To: U :ZS 7 r Other (specify): From: r TO: 7. Please indicate if level of care changed from time of admission and if so when? Give Details: 4412 8. If Skilled Care is still indicated when will patient be: (a) tranferred to Intermediate Care (b) transferred to Custodial Care (c) discharged Remarks: Physician's Name: _ Physician's Signature Address: Aqw W. C2 Date: ?-- Zip Code: 707W >L AT-2-101A k? Federal Tax I.D. N Imes, or other medical Dyer, or governmental stadve to obtain or medical expenses of DA11? R REAKA 7185 a71??ypw 1 MECIIAMQSSUIO. ?A 170556147 a7r?tc?C? 3. ?q9/ 4111111mi o .fOw t?( L4 D) Z /$155 . I1a71 ® Mellon Bank ?? ?!'P_ iw a ?lCiefT O Y _ 1:03&300821,1: i42"&O6w5275r 7&85 0,0000185000; 417 NESVW= FOO 706677! . MECKANQ WXL PA 170556147 313 % ® Mellon Bank V U ` -T w 4? +r Merry ?M? ?'?? - 11:03130011211: 142-&O6r"52751' 71,93 r?OOOOLBSOOO0' KENNETH E. REAKA ?199 DARLENE REAK449RAEL 417 RFSE11VW 11W 78 5 MEGIAMCSMM. PA 170556147 f . 7 mm F17710Z aaCdleBfr d' _ Dote 7b N7101N15 rrw Mellon Bank 15 4L52 4jtk tires r Me1*1c1- r?ru e.c? 1:03&3008211: 1421N&O6rN527514 7&99 60OOOO&85000' oKLVWM i? •,7ow 7w nk IMM047 =Wv - - %A Mert1o Ir M/_ t D/Le IC1S?, a y. ?:03i30082ie; i42µi06µ5275r 7230 -T 40000 i8 5000.+' i KENNETH E MEAKA 'n 1BIIAE?. 7248 /A PA 17OW4147 _ DGIeA (-) un+i„,a? ?r • &21391N MNlon Bank Memo 7`G? :.:.:= -7.03&30082&.: 142.Lnr' a-;tr KENNETH E. REAKA DARLENE sRAEL =7258 417 FkESERVM FIM 7a$4= ME00jeCS&A?% PA I?M4147 . M . © Mollon Bank .e). W.4 Memo -.:03130082&1. i42w 106µ5275M 7256 t0000185000t DA?RLE in REAZAKA 7214 417 RZURVOA VAM 704= M MECK0UaC81UR(L ?A 170!"147 Da66 ]?f 1Y101C11 PO,a°.1Oa 1 ham,., Stnr?w r1 rim I $ /$5-D• ® Mellon Bank U" M6n1o1eA.lNUy`?. ICaA/lu"r ?S?I.?.P.X r 1:0 3 1 3008 2 1,: i42µi06M15275p• 7214 1r0000i850001+• KENNETH E. REAKA DARLENE REAKA4SRAEL 417 RESERVOIR FW 7066770 MECHANICSBURG. PA 17004147 Ot01415i 74 ,Off ctrl c iw a4 nvxm 726 u?. / , i4S7 400 t S 406a 4787 , '13L,;,, a 1$196 - vv ((/ IVlafo 4Bank Miq=. MBfTq K?FI'i1.I?_ LSfiRil_R?lc .r 40 3 1 3008 2 11: &42-10608-5275,12 7264 11'000018500010 KENNETH E. REAKA 7294 DARLENE REAKA-ISRAEL ` 417 RESERVOIR ROAD 7004]16 MECHANICSBURG. PA 17055-6147 DAB 143 C'?f -2 _Py 14710,116 Or?t Of l? /? . 1 Cp•n??4Y?--a?U , rY 1- Q $ ® Mellon Bank V Nis= 'YA? 1:0 3 13008 2 1,: 142111106105275, 7294 r00000i8500011' STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICAT: I, MARY C. LEWIS Register for the Probate of Wills and Granting Letters of Administration ic. In and for said County of CUMBERLAND do hereby certify that on the 4th day of February A.D., one thousand nine hundred and ninety seven. Letters TESTAMENTARY in common form were granted by the Register of said County, on the estate of REAKA KENNETH EARL , late of UPPER ALLEN TOWNSHIP' a/k/a REAKA KENNETH E In said county, deceased, to SANDRA E MARI REAKA and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 4th day of February A.D., one thousand nine hundred and ninety eight. File No. 1998-00112 PA File No. 21-98-0112 Date of Death 10/25/1997 S.S. # 576-24-5121 Register NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL VAUD ONLY WITH IMPRESSED SEAL DATE ISSUED: 3 01 I NEflEBY CEATIpY+THAHE?pjj??A?CHED IS A TRUE COPY OF A RECORD'ON FILE IN THE'blVl0111.OF VITAL RECORDS. eL'6?? STATE REGISTRAR OF VITAL RECORDS 1-005 i ' ItEJI[CA Please Type or Print in Black Indelible Ink. Assure All Copies Are Legible. State of Maryland / Department of Health and Mental Hygiene Certlfloate of Death naryland Baltimore +a wla.ndNrroN .. .... It. ,ON"I'll, Nd FOWa,d Bari Ranks ''"""^ _.-------• ow r«, FTry of p«y, w.ne,.me:;j °_°•-•--- Q=BER 25 1997 1530. P m.cry, Town, o, io«ronao..n ia.cwryao«n Eo ? 1F Ao• p,p.. rN«n«rl ,?: RANR4LLSTOWtJ _ BA_ LTI_MO_RE 77 Or«FrFy„ _ I I ,J Ioe. Cry, Town or lewbn .... 4 . Randalls town I IaA? lwl. ror« :Ik 71JWwewod 4onm d Hill Road 1Y. /W?uaDioyi,lj E«r n U,l. 000011 iY«F FO1N, Kaw xxb 101. ZIP Coda Itb. Ghana Whl Ce„M,y, .. . 21133 I United States is. w.. .. .. 'aw p,yr, 1=.n aNo- _ :ww•M,INID.u indN,, M Yes. A.W'.. rbx Q PUNa.) . EroY WNN, Ne. WpWIN: IOY« lp Ne Sp.Iir .WW2-64.1 SFNh: White . (?Q. 'F e'YF FduoNbn I«. D.«Ur,l•. 11.«r occWN W loM«,d wp,. qyy Aft mwawadrp I Ifm. KltlaEUNn.Nrq,Nry B'rE.ee„dIry (Pin Celop, IlJe, d•)... W. OO ADrNNnFMd i12....... Accountant T R W 17.fNrp NNIN(FY,(WIh, I.w to. WWI Now, /F;rK FEda,• yogy, Sww«1 Earl Reeks Della Fitch I/?FdN,nNIIy NFiIWgNlyiWp/nDF. Frnq Oft, MAR FAddnll(Sn«f dnd Aln„Mra Rw.lRN.. /A,,,p.;... CAYM Kra. Darlene,AIerael (Daughter) 1218 Bond Avenue Reisterstown, MD 21136Araua? t0a119EIFNIa 20Crlm411011 aORNnwNBem SIFN 70b. vYNlnata Dla«I an?.n? .. C.I. ?foe.iougyl. CIFN TO.,, g1. dOOawrn FOOIw (?p«ry? gt. ln,a" [own Gep lnslantown lispFl, +; e4«F.d n..iewNSirrw National ?emetery November 3, 11997 Pennsylvania N?B ? Fnd .raF e '0aeral Directors. Inc. I ?r Fk k 8728 Liberty Road Randalletown, HD 21133-4784 /M N1?. ?.Pw.nN,F I,N«V, 40d«n. oona NMN 11M -0* of bM.lM"ar CN W NWIYN. d,Y o, as ",a,, Nr«pk,Nry o,NFl Aopedm.N C«« (Fb,r : 9,M N ift i Arteriosclerotic Cardiovascular Disease GNbla eu eon I NpYNIq al: I ?a??aRNarwNeat 'S - IabOM?l ,?-4?~?fla ?' wZ°ew.a.r?wmer"wr.warrrn..rrw.nwneii ?oNMa ? p?ron i RAINS ?„ rri ,R.?. ? *-•Addwa ?r!?Ir.M rIMI?r?Iwb«?p? bMb /enas ', p,' ,. S NM D*Auy ax. a. -6c?Jcr`+ American Travelers. Life Inq?Co 84 1800 Street Road ea 7a Warrington, PA. 18976 17 mad O Eapaw Md kawo 13 RMaaPm*brHagrndr' p•COD y PAMIR-d G ardANArpa?Ql : ? ? ? / 1 ? " ! 14 I I III I ; f E ! 4 ' .f s? 1 o b ? a -2 1 Fn oC ? $ l w a " Co IR F? d -• 9 to o ? 4 N w N O 40 a n s $ ?? Vd o = m r P A S s Celt Oft OOOSC auod 8d AMBBICAN'FRAVaERS LIFE INSURANCE CCOAIPANF ATL L(/o Iwoe?asn CawpAr in CA • Howe offim Bawolaw, PA P@1&7 Bowt/Ia Def: PO B" 64949 • CAlcw, LL 91(66-0)49 Td pbsom 14OMNIJl78 ESTATE OF REAKA KENNETH E 42 ALFRED DR LEWISSERRY PA 17339 PATIENT NAME: REAKA KENNETH E REGARDING: 142681A EXPENSE(S) SUBMITTED: ELEGY MANOR INC AUTUMN SENIOR LIVING VANN SENIOR LIV Dear Mr Reaka: 9-1 TO 10-1 11-28 TO 12-2 12-3 TO 10-25 December 15, 1998 5111 760532-1 ATL As explained under the "Proof of Loss" provision of your policy, proper proof of loss must be received within ninety (90) days of the date of loss. since we did not receive proof of loss within this time period, benefits are not eligible for this service. We have voluntairly extended the filing period to one year and 90 days after the caiender year in which the expense was first incurred. If you feel there are other facts that we should consider, please write: American Travellers Life Insurance Company, Claim Review Department, at the above address. Policy Benefits Department EXHIBIT,';,, audMlt+INT0060 SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 AMERICAN TRAVELERS LIFE CIVIL ACTION -LAW INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE 1, James W. Kollas, of the Law Offices of Kollas and Kennedy, hereby certify that I have this 20th day of September, 1999, served a true and correct copy of an AMENDED COMPLAINT by depositing same in the United States mail, first class, postage prepaid, addressed to the following: Mark Scoblionko, Esquire Scoblionko, Scoblionko, Muir, Bartholomew & Melman 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105-1998 LAW OFFICE OF KOLLAS AND KENNEDY BY: James W. Kollas, Esquire SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE CO., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 99-4844 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER ORDER OF COURT AND NOW, this /01+ day of FEBRUARY, 2000, plaintiff s claim for punitive damages in Count 2 of the amended complaint is STRICKEN. Defendant's demurrer to Count 3 is GRANTED. In all other respects, defendant's preliminary objections are DENIED. By the William C. Kollas, Esquire James W. Kollas, Esquire For the Plaintiff Mark H. Scoblionko, Esquire For the Defendant Edward E. Guido, J. / a y-0 0 ? XS Ad ' . •;?• ..:,,:.r,?? SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V AMERICAN TRAVELERS LIFE INSURANCE CO., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-4844 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER This action was commenced by the filing of a six count complaint on August 11, 1999. Defendant filed preliminary objections to which plaintiff responded by filing an amended complaint. Defendant filed preliminary objections to the amended complaint. Those preliminary objections are currently before us. The parties have briefed and argued their respective positions. This matter is now ready for disposition. Plaintiffs decedent died on October 25, 1997 and letters testamentary were issued to plaintiff on February 4, 1998.1 In August of 1989 plaintiffs decedent purchased a "Supplemental Nursing Home and Home Health Care Policy" (hereinafter "policy") from Complaint paragraphs 3, 4. 99-4844 CIVIL TERM defendant.z Beginning in May of 1994, and for various periods wail his death in October of 1997, plaintiff's decedent incurred substantial expenses which would qualify for reimbursement under the terms of the policy.3 As a result of a loss of memory, plaintiffs decedent was unable to advise his agents that the policy existed and that his expenses could be recovered.4 During the course of gathering the estate assets, plaintiff discovered the policy.5 In January of 1998, she gave verbal notice of the claim to defendant 6 In response, defendant sent her claim forms to fill out and return.7 Defendant did not advise plaintiff of the applicable time frames within which the completed claim forms had to be submitted.s In fact, defendant concealed the time frames .9 Plaintiff completed the forms and submitted her written claim on November 12, 1998.10 On December 15, 1998, defendant denied payment of the claim on the basis that timely written proof of loss was not received in accordance with the policy) I Plaintiffs amended complaint contains six counts. Count 1 is a cause of action based upon an alleged breach of contract. Count 2 alleges a breach of the covenant of good faith and fair dealing. Counts 3 & 4 are based upon alleged misrepresentations by defendant. Count 5 alleges a violation of the Unfair Trade Practices and Consumer '- Amended Complaint paragraph 6, Exhibit A. Amended Complaint paragraphs 11-31. ° Amended Complaint paragraph 32. ° Amended Complaint paragraph 33. 6 Amended Complaint paragraph 34. Amended Complaint paragraph 35. " Amended Complaint paragraph 35. ° Amended Complaint paragraph 66. 10 Amended Complaint paragraph 36. ?? Amended Complaint paragraph 37 and Exhibit C. 99-4844 CIVIL TERM Protection Law (hereinafter UTCPL). 12 Count 6 is a cause of action for bad faith under 42 Pa.C.S.A. § 8371. Defendant has demurred to all counts of the amended complaint except the breach of contract claim contained in Count I. For the reasons hereinafter set forth, we will grant the demurrer as to some counts and deny it as to others. The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Allegheny County v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402,408 (1985) (citations omitted). We will examine each of plaintiffs claims in light of the above standard. Breach Of Covenant Of Good Faith And Fair Dealing. Defendant argues that there is no common law claim for breach of an insurer's covenant of good faith and fair dealing. Therefore, it asks that Count 2 be dismissed. We agree that our Commonwealth does not recognize a common law tort action for bad faith on the part of an insurer. D'Ambrosio v Pennsylvania Nat'l Mut Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981). However, we do not agree that this necessarily means that Count 2 should be dismissed. '' 73 P.S. § 201-1 et seq. 99-4844 CIVIL TERM Pennsylvania Courts have long recognized that an insurance company owes its insured a duty of good faith and fair dealing. Dercoli v Pennsylvania Nat M rt Ins Co., 520 Pa. 471, 554 A.2d 906 (1989); Fedas v Insurance Company of State of Pennsylvenis, 300 Pa. 555, 155 A. 285 (1930). The duty includes the obligation to fairly and objectively investigate and to reject claims only where good cause exists. Damon v. Penn Mut Fire Ins Co., 247 Pa.Super. 534, 372 A.2d 1218 (1977). It also "includes the duty of full and complete disclosure as to all benefits and every coverage that is provided by the applicable policy or policies along with all requirements, including any time limitations for making a claim." Dercoli, supra, 520 Pa. at 478, 554 A.2d at 909 (emphasis added). In view of the above, we cannot state with certainty that the allegations in Count 2 of the complaint fail to state a cause of action for which relief can be granted. However, we can state with certainty that any cause of action is grounded in contract not in tort .13 Therefore, while we will not grant the demurrer, we will strike the claim for punitive damages contained in Count 2. Misrepresentation. Counts 3 and 4 of the amended complaint are claims based upon alleged misrepresentations made by defendant. Specifically, in Count 3 plaintiff alleges that defendant made "false representations concerning coverage in the policy.s14 In Count 4 n "The insurer's duly of good faith, therefore, is contractual and arises because the insurance company assumes a fiduciary status by virtue of the policy's provisions which give the insurer the right to handle claims and control settlement." Romano v Nationwide Mut Fire Inc Co., 435_Pa.Super. 545, 551, 646 A.2d 1228, 1231 (1994) (citations omitted). 14 Amended Complaint paragraph 59. 99-4844 CIVIL TERM plaintiff alleges that the defendant made false representations by "failing to disclose time restraints applicable to plaintiffs claim, concealing time restraints applicable to plaintiffs claims and/or otherwise misleading plaintiff as to the merits of plaintiffs claims."15 In each count the plaintiff alleges that defendant's misrepresentations were made with knowledge of their falsity and that defendant knew the misrepresentations would be relied upon, which they were, to the detriment of plaintiff. 16 The law with regard to misrepresentation was succinctly stated by our Superior Court as follows: The elements of a cause of action for fraud or misrepresentation are: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damages to the recipient as the proximate result. The deliberate nondisclosure of a material fact is the same as culpable misrepresentation. McClellan v. Health Maintenance OrE. of Pennsylvania, 413 Pa.Super. 128, 142, 604 A.2d 1053, 1060 (1992) (citations omitted). Applying the above law to the case before us, we are satisfied that the demurrer must be denied as to Count 4. However, Count 3 is another matter entirely. The gravamen of Count 3 is that since defendant has denied plaintiff s valid claim under the policy, its representations in the policy that it would provide the coverages contained therein must have been false. In other words it is plaintiffs position that defendant's failure to pay plaintiffs claim is proof that defendant knew at the time the policy was issued that it would not pay valid claims made on the policy. We are not impressed with this argument. Therefore, we will grant the demurrer as to Count 3. is Amended Complaint paragraph 66. Amended Complaint paragraphs 60.63, 67-70. 99-4844 CIVIL TERM Claim Under The UTPCL. It is well established that an insured may bring a cause of action against his insurer under the UTPCPL. Hardy v. Pennock Inc Aj;cj y Iw,,, 365 Pa.Super. 206, 529 A.2d 471 (1987). However, in order to pursue a claim under the UTPCL the alleged conduct must be one of misfeasance. ordon Y. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988). Allegations which amount only to nonfeasance are insufficient to sustain a cause of action under the UTPCL. Id. The Gordon Court defined misfeasance as the "improper performance of a contracted obligation" and nonfeasance as "the mere failure to perform." Id. at 264, 548 A.2d at 604 quoting from Raab y. Keystone Inc Co., 271 Pa.Super. 185, 187, 412 A.2d 638, 639 (1979). It specifically held that failure to pay a claim under an insurance policy is nonfeasance and, therefore, insufficient to sustain a cause of action under the UTPCL. If defendant's failure to pay the claim was the only basis for Count 5, we would be required to grant the demurrer. However, the amended complaint contains several allegations of misfeasance as defined by the Gordon Court. 17 Therefore, the demurrer must be denied. Bad Faith Claim Under 42 Pa.C.S.A. § 8371. In the case of D'Arnbrosio v Pennsylvania National, supra, our Supreme Court refused to create a common law tort remedy for an insurer's bad faith. The legislature responded with the enactment of section § 8371 of the Judicial Code which provides: The allegations of misfeasance are contained in paragraph 74 and include misrepresenting pertinent facts, failing to conduct a reasonable investigation and failing to implement reasonable standards for prompt investigation of claims. 99-4844 CIVIL TERM § 8371. Actions on insurance policies In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (l) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. 42 Pa.C.S.A. § 8371. The Superior Court has defined "bad faith" as follows: any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. Ramano Y. Nationwide, supra, 435 Pa.Super, at 554, 646 A.2d at 1232. In the instant case, there are sufficient allegations in the complaint upon which to base a claim for bad faith under Section 8371. Plaintiff asserts that defendant concealed the time restraints applicable to her claims under the policy. 18 She further alleges that the defendant misled her as to the merits of her claims. 19 The defendant then raised plaintiffs failure to act as a defense to payment under the policy. Under these circumstances, it would not be appropriate to sustain a demurrer to Count 6.20 For the reasons set forth above, we will enter the order that follows. '" Amended Complaint paragraph 66. 9 ,,J 30 Defendant has also raised a preliminary objection to plaintiff's claim for attorney fees. Clearly attorney fees are recoverable in some courts and not in others. However, this is a question of damages which can be properly handled by the trial judge. 99-4844 CIVIL TERM AND NOW, this 12 day of FEBRUARY, 2000, plaintiffs claim for punitive damages in Count 2 of the amended complaint is STRICKEN. Defendant's demurrer to Count 3 is GRANTED. In all other respects, defendant's preliminary objections are DENIED. By the Court, William C. Kollas, Esquire James W. Kollas, Esquire For the Plaintiff Mark H. Scoblionko, Esquire :sld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff Vs. IN CIVIL ACTION AMERICAN TRAVELERS LIFE INSURANCE COMPANY, : JURY TRIAL DEMANDED BY Defendant : JURY OF TWELVE PERSONS NOTICE TO THE WITHIN PLAINTIFF: YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN 20 DAYS FROM THE SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN i' L.- Ark cob lionko, Esq. Attorney I.D. #08070 Attorneys for Defendant 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 MRS/dew 2/15/00 (plead/answer/reaka.am) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff VS. IN CIVIL ACTION AMERICAN TRAVELERS LIFE INSURANCE COMPANY, : JURY TRIAL DEMANDED BY Defendant : JURY OF TWELVE PERSONS ANSWER OF DEFENDANT TO AMENDED COMPLAINT 1-4. After reasonable investigation, Defendant is without information or knowledge as to the truth of allegations set forth in Plaintiff's Amended Complaint because the means of proof thereof are within Plaintiff's exclusive possession and control, and the same are therefore denied. 5. Admitted, except that American TRAVELERS Life Insurance Company, through merger, has since become known as "Conseco Senior Health Insurance Company." 6. Admitted. 7. After reasonable investigation, Defendant is without information or knowledge as to the truth of allegations set forth in Plaintiff's Amended Complaint because the means of proof thereof are within Plaintiff's exclusive possession and control, and the same are therefore denied. 8. Admitted. 9-70. The allegations set forth in paragraphs 9-10 are denied in that the insurance policy in question speaks for itself. 11-31. After reasonable investigation, Defendant is without information or knowledge as to the truth of allegations set forth in Plaintiff's Amended Complaint because the means of proof thereof are within Plaintiff's exclusive possession and control, and the same are therefore denied. 32. After reasonable investigation, Defendant is without information or knowledge as to the truth of allegations set forth in Plaintiff's Amended Complaint because the means of proof thereof are within Plaintiff's exclusive possession and control, and the same are therefore denied. However, by way of further answer, it is averred that the decedent's daughter, Darlene Israel, requested a copy of the policy from Defendant on August 9, 1994 and received a copy thereof from Defendant shortly thereafter, such that either the Plaintiff's decedent or his family members were aware of the existence, terms and nature of the policy at least as of that date. 33. The allegations set forth in paragraph 33 are denied. To the contrary, it is averred that the existence, terms and nature of the policy were fully recognized at least as early as August, 1994, when a copy of the policy was provided to the -2- decedent's daughter, Darlene Israel. 34. It is admitted that, in or around January, 1998, Plaintiff gave Defendant verbal notice of a claim during a telephone conversation with one of Defendant's employees. It is denied that the claim was asserted within a reasonable time after discovering the policy and discerning its nature, and/or that the claim was submitted in accordance with the requirements of the policy, and it is all averred to the contrary. By way of further answer, the responsive averments more fully set forth above in paragraph 32 of this Answer are incorporated herein by reference as if the same were once again more fully set forth at length. 35. The allegations set forth in paragraph 35 are denied as stated. To the contrary, as would have been standard procedure for one of Defendant's employees who received a verbal notice of a claim, that employee presumably would have advised Plaintiff that forms would be sent to Plaintiff for her to fill out and return to the Defendant. By way of further answer, any issue concerning time restraints potentially applicable to Plaintiff's claims would have been asserted only upon receipt of a written claim. 36. Admitted. 37. Admitted. 38. The allegations set forth in paragraph 38 are denied as stated. To the contrary, it is averred that, when it appeared that Plaintiff's claim submission was -3- untimely on its face, Defendant rejected Plaintiff's claim based upon time restraints in the policy, and without considering the merits of Plaintiff's claim, as the merits of Plaintiff's claim were moot at that time. 39. The allegations set forth in paragraph 39 are denied as stated. It is admitted that Plaintiff has made requests of the Defendant and Defendant has continued to refuse payment of Plaintiff's claim, which refusals were proper and mandated by the terms of Plaintiff's decedent's policy. 40. The allegations set forth in paragraph 40 are denied, and it is averred to the contrary that Defendant's rejection, and continued rejection, of Plaintiff's claim was, and is, proper in all respects and mandated by the terms of the insurance policy in question. 41. The allegations set forth in paragraph 41 are denied for the reason that the insurance policy in question speaks for itself. 42. The allegations set forth in paragraph 42 are denied, and it is averred to the contrary that Defendant's rejection, and continued rejection, of Plaintiff's claim was, and is, proper in all respects and mandated by the terms of the insurance policy in question. By way of further answer, it is denied that Defendant has breached the terms of the insurance policy, and it is averred to the contrary. 43-45. Defendant admits that, subsequent to the initiation of the within action, Defendant recognized that it had inadvertently and erroneously withheld premiums in -4- the amount of $281.64, which ought to have been refunded to the Plaintiff, and Defendant has, in the interim, refunded to Plaintiff the said sum of $281.64, thereupon making the allegations of these paragraphs of the Amended Complaint moot. 46-48. The allegations set forth in paragraphs 46-48 of the Amended Complaint constitute legal conclusions and are denied for the reason that the policy in question speaks for itself. 49. After reasonable investigation, Defendant is without information or knowledge as to the truth of allegations set forth in Plaintiff's Amended Complaint because the means of proof thereof are within Plaintiff's exclusive possession and control, and the same are therefore denied. 50-51. It is denied that Plaintiff and/or the Estate is entitled to claim benefits from the policy in the amount of $101,144.99, and/or that Defendant owes said sum or any portion thereof, and it is expressly averred to the contrary. ANSWER TO COUNT I Breech of Contract 52. The responsive averments more fully set forth above in paragraphs 1-51 of this Answer are incorporated herein by reference as if the same were once again -5- more fully set forth at length. 53. The allegations set forth in paragraph 53 are denied, and it is averred to the contrary that Defendant's rejection, and continued rejection, of Plaintiff's claim was, and is, proper in all respects and mandated by the terms of the insurance policy in question. By way of further answer, it is denied that Defendant has breached the terms of the insurance policy, and it is averred to the contrary. 54. The allegations set forth in paragraph 54 of the Amended Complaint constitute legal conclusions, which are deemed to be denied and at issue pursuant to the applicable Pennsylvania Rules of Civil Procedure. By way of further answer, it is denied that any actions or inactions of Defendant have been a substantial contributing cause of any injury or damages, and/or that Plaintiff is entitled to assert a claim for loss of use of the monies, lost interest and/or any other damages, and it is all averred to the contrary. By way of further answer, it is denied that paragraph 54 sets forth a legally cognizable claim for damages, and it is expressly averred to the contrary. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. ANSWER TO COUNT II Breach of Covenant of Good Faith and Fair Dealing 55. The responsive averments more fully set forth above in paragraphs 1-54 -6- of this Answer are incorporated herein by reference as if the same were once again more fully set forth at length. 56. The allegations set forth in paragraph 56 are denied, and it is averred to the contrary that Defendant's rejection, and continued rejection, of Plaintiff's claim was, and is, proper in all respects and mandated by the terms of the insurance policy in question. By way of further answer, it is denied that Defendant has breached the terms of the insurance policy, and it is averred to the contrary. 57. The allegations set forth in paragraph 57 of the Amended Complaint constitute legal conclusions, which are deemed to be denied and at issue pursuant to the applicable Pennsylvania Rules of Civil Procedure. By way of further answer, it is denied that any actions or inactions of Defendant have been a substantial contributing cause of any injury or damages and/or that Plaintiff is entitled to assert a claim for loss of use of the monies, lost interest and/or any other damages, and it is all averred to the contrary. By way of further answer, it is denied that paragraph 57 sets forth a legally cognizable claim for damages, and it is expressly averred to the contrary. By way of further answer, all claims for punitive damages in this Count have been stricken by order of Court. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. 7- ANSWER TO COUNT III Misrepresentation 58-63. These allegations and the claims asserted in this Count have been stricken by Order of Court. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. ANSWER TO COUNT IV Misrepresentation 64. The responsive averments more fully set forth above in paragraphs 1-63 of this Answer are incorporated herein by reference as if the same were once again more fully set forth at length. 65. The allegations set forth in paragraph 65 are denied and it is averred to the contrary. By way of further answer, Defendant denies that it made any representations concerning coverage under the policy other than those set forth therein, and it is expressly averred to the contrary. By way of further answer, the policy is an integrated written document, and any purported representations are barred, void and of no effect pursuant to applicable provisions of the statute of frauds and the parol evidence rule. 66. The allegations set forth in paragraph 66 are denied, and it is averred to -8- the contrary. By way of further answer, Defendant denies that it made any representations concerning coverage under the policy other than those set forth therein, and it is expressly averred to the contrary. By way of further answer, the policy is an integrated written document, and any purported representations are barred, void and of no effect pursuant to applicable provisions of the statute of frauds and the parol evidence rule. Byway of further answer, any applicable time restraints were set forth in the insurance policy in question and were, or ought to have been, known to, or discoverable by, Plaintiff's decedent and Plaintiff. 67. It is denied that Defendant made any fraudulent representations and/or that Defendant knew, or should have known, that any representations were fraudulent, and it is expressly averred to the contrary. By way of further answer, Defendant denies that it made any representations concerning coverage under the policy other than those set forth therein, and it is expressly averred to the contrary. By way of further answer, the policy is an integrated written document, and any purported representations are barred, void and of no effect pursuant to applicable provisions of the statute of frauds and the parol evidence rule. 68. The allegations set forth in paragraph 68 are denied, and it is averred to the contrary. By way of further answer, Defendant does not understand the allegations contained in paragraph 68 in the context of the remaining allegations of the Amended Complaint, and, accordingly, finds it difficult to offer further response. -9- 69. The allegations set forth in paragraph 69 are denied. To the contrary, as heretofore averred, when Defendant received verbal notice of a claim from Plaintiff, in accordance with standard practices, Plaintiff was instructed to submit a claim in writing. 70. The allegations set forth in paragraph 70 of the Amended Complaint constitute legal conclusions, which are deemed to be denied and at issue pursuant to the applicable Pennsylvania Rules of Civil Procedure. By way of further answer, it is denied that any actions or inactions of Defendant have been a substantial contributing cause of any injury or damages and/or that Plaintiff is entitled to assert a claim for loss of use of the monies, lost interest and/or any other damages, and it is all averred to the contrary. By way of further answer, it is denied that paragraph 70 sets forth a legally cognizable claim for damages, and it is expressly averred to the contrary. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. ANSWER TO COUNT V Violation of the UTPCPL 71. The responsive averments more fully set forth above in paragraphs 1-70 of this Answer are incorporated herein by reference as if the same were once again -10- more fully set forth at length. 72-75. The allegations set forth in paragraphs 72-75 are denied, and it is averred to the contrary. By way of further answer, Defendant expressly denies any violation of the Unfair Trade Practices and Consumer Protection Law with respect to Plaintiff, Plaintiff's decedent or the insurance policy in question, and it is expressly averred to the contrary. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. ANSWER TO COUNT VI Violation of 42 Pa. C.S.A. Section 8371 76. The responsive averments more fully set forth above in paragraphs 1-75 of this Answer are incorporated herein by reference as if the same were once again more fully set forth at length. 77-79. The allegations set forth in paragraphs 77-79 constitute legal conclusions, which are deemed to be denied and at issue pursuant to the applicable Pennsylvania Rules of Civil Procedure. By way of further answer, the allegations set forth in these paragraphs are denied, and it is averred to the contrary. It is expressly denied that Defendant committed any bad faith with respect to Plaintiff's decedent, -11- Plaintiff, the insurance policy, or the claims submitted with respect thereto, and it is expressly averred to the contrary. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be denied and that judgment be entered in favor of Defendant, together with costs. NEW MATTER 80. The claims asserted in the within action are barred, in whole or in part, pursuant to the applicable Pennsylvania statute of limitations. 81. The claims asserted in the within action are barred, in whole or in part, pursuant to applicable provisions of the Pennsylvania statute of frauds. 82. The claims asserted in the within action are barred, in whole or in part, pursuant to applicable provisions of the parol evidence rule. 83. The claims asserted in the within action are barred, in whole or in part, by virtue of the negligence of Plaintiff's decedent, Plaintiff, and/or other persons acting by, or on behalf of, Plaintiff's decedent. 84. Plaintiff's decedent, his daughter, Darlene Israel, or someone else acting on behalf of Plaintiff's decedent, requested from the Defendant, and was provided with, a copy of the insurance policy at issue in August, 1994. -12- 85. Plaintiff's decedent and/or his family representatives had a duty to read and determine coverage options under the policy at least as early as August, 1994. 86. Had claims been submitted in August, 1994, the claims would have been timely and would have been considered on the merits by Defendant. 87. All of the claims submitted to Defendant, and which are the subject of the within action, are barred as having been untimely in that the written policy states as follows: "PROOF OF LOSS: The claimant must give us written proof of loss within six (6) months of it happening. If he or she has a good reason for not doing so, we will not contest the claim. However, the claimant must give us proof no later than one (1) year from the time normally required unless legally incapable." 88. The policy defines "Nursing Home Facility" to mean, among other things, a "duly licensed [facility] by the jurisdiction in which it is located to provide the services ... receive(d)." 89. The claim in the amount of $20,350.00, and all portions thereof, asserted with respect to the confinement at Vann Senior Living is barred and not payable under the policy in that Vann was not a licensed facility in accordance with the aforesaid policy definition. 90. Additionally and alternatively, the claim in the amount of $21,630.00, and all portions thereof, for the confinement at Autumn House Assisted Living is 13- barred and precluded under the policy, and no benefits are payable with respect thereto, since it did not begin within thirty days of discharge from a hospital stay of not less than three consecutive days, as required under the terms of the policy. 91. The within action is barred, in whole or in part, pursuant to the applicable terms of the policy in that it has been brought more than three (3) years following the time a claim or claims were required to have been submitted. 92. The claims in the within action are barred, in whole or in part, because the following conditions precedent were not met: (a) Some or all of the nursing home admissions were not required as a result of sickness or injury which is the same as or directly related to that which caused the preceding hospital stay; (b) Plaintiff's decedent was not under a planned program of observation and treatment for a sickness or injury which made the confinements necessary; and/or (c) Plaintiff's decedent was not personally examined by an attending physician each month during confinement and no attending physician certified as to the degree of care needed. WHEREFORE, Defendant respectfully prays that Plaintiff's request for relief be -14- denied and that judgment be entered in favor of Defendant, together with costs. SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN ?A,q/g Mark H. Scoblionko, Esquire Attorney I.D. No. 08070 Attorneys for Defendant 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 -15- VERIFICATION I, David D. Graham, verify that I am the Manager, Claim Administration of Conseco Senior Health Company, previously known as "American Travellers Life Insurance Company," Defendant in the within action, and, as such, that I am authorized to sign this verification on behalf of Conseco Senior Health Company; and that the facts contained in the foregoing Answer of Defendant to Plaintiffs Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Date: November 17, 1999 w ° d P W z wa 0 a xx M m s ? wo u b 6 5 zz HW C W C N O Z Z P +1 W w P F. z q?+ €g e °tl C.; a ¢¢p ¢ 3 1 S 0 6 O z x w W dd ? H W O a a O W L; CL p > Lg i -i d MFP r xrnw?m•?.oum•nmu.w•m?o -ax wyw ?rutirydtvxvuw.uv?n?n w xonua r mmn vv?nix r; f ti C7 L7 CJ N } W n 2 W W g < 2 YeaA? z 3: m n W Z Z Z n N 0 W n < 3 0 a 0 Nml W•AC11N!•18NLL0• :glnYO] ]M TNgIYNYiIM *llYlf 11Y p NgSVKSVYIV IYDil 1lV18'lN SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 1999-4844 :CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER 80. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 81. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 82. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 83. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 84. Denied. It is specifically denied that Darlene Israel or "someone else acting on behalf of the Plaintiff's decedent" requested a copy of the policy. By way of further answer, after reasonable investigation Plaintiff is without information or knowledge as to the truth of whether Plaintiffs decedent requested a copy of the policy, therefore the same is denied. 85. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 86. After reasonable investigation Plaintiff is without information or knowledge as to the truth of allegations set forth in Defendant's New Matter at Paragraph 86, therefore same are denied. 87. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. By way of further answer, the allegations set forth in Defendant's New Matter at Paragraph 87 are denied in that the policy speaks for itself. 88. The allegations set forth in Defendant's New Matter at Paragraph 88 are denied in that the policy speaks for itself. 89. Denied. It is denied that Vann was not a licensed facility. It is denied that claims associated with confinement at Vann are barred and not payable under the policy. Strict proof demanded at trial. 90. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. By way of further answer, confinement at Autumn House falls within policy coverage; furthermore, the allegations set forth in Defendant's New Matter at Paragraph 90 are denied in that the policy speaks for itself. 91. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. By way of further answer, the allegations set forth in Defendant's New Matter at Paragraph 91 are denied in that the policy speaks for itself. 92 (a-c). It is denied that the allegations set forth in Defendant's New Matter at Paragraph 92 (a-c) constitute conditions precedent in the policy. By way of further answer, the allegations set forth in Defendant's New Matter at Paragraph 92 (a-c) are denied in that the policy speaks for itself. WHEREFORE, Plaintiff reaffirms its demand for relief as outlined in the Amended Complaint. RESPECTFULLY SUBMITTED: William C. Kollas, Esquire Supreme Court I.D. No. 06341 mes W. Kollas Supreme Court I.D. No. 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEYS FOR PLAINTIFF P- Dated: 2/23/00 VERIFICATION I, SANDRA M. REAKA, Executrix of the Estate of Kenneth E. Reaka, verify that the statements made in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unswom falsification to authorities. B1":?s.cCC J C1P SANDRA M .REAKA DATE: J PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SANDRA M. REAKA, Executrix of the Estate of Kenneth E. Reaka, Deceased, VS. AMERICAN TRAVELERS LIFE INSURANCE COMPANY (Plaintiff) (Defendant) No. 1999-4844 Civil Action - Law Jury Trial 1. State matter to be argued (i.e., plaintiff's notion for new triaL defendant's demurrer to cocplaint, etc.): Plaintiff's Motion for Sanctions Against Defendant for Defendant's Failure to Produce Documents Requested by Plaintiff 2. Identify counsel who will argue case: (a) for plaintiff: Address: (b) for defendant: Address: James W. Kollas 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 Mark H. Scoblionko P.O. Box 1998 40 South Fifth Street Allentown, PA 18105-1998 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 3, 2001 ?' vd orney for Plaintiff 7 Dated: 11/17/00 I?r ?_. ,_ .. ?.. ;; ????:? =; ;: ? ?? SANDRA M. REAKA, IN THE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE CUMBERLAND COUNTY, PENNSYLVANIA OF KENNETH E. REAKA, DECEASED, 99-4844 CIVIL Plaintiff CIVIL ACTION - LAW Vs. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, JURY TRIAL DEMANDED Defendant IN RE: PLAINTIFF'S MOTION FOR SANCTIONS ORDER AND NOW, this 2 z day of November, 2000, a brief argument on the plaintiff's motion for sanctions is set for Wednesday, January 10, 2001, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, James W. Kollas, Esquire For the Plaintiff Mark H. Scoblionko, Esquire For the Defendant :rim A. Hess, J. Q Ck.L20- ??g .... ? ?li .. )? 1 1 N m z z 3 z w 5 a z Y a 0 a 0 :j z N n 3 n y O m a C 4 J a O Y IL f a u NM9 LM-AD'991[0•,a 19,10.1920[4 ;11 M., "JIIITN(XLY1Itl0N1 ?9381, io W'SU r9ro3l RIA"I 11 SANDRA M. REAKA, IN THE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH E. REAKA, DECEASED, Plaintiff V. : NO. 1999-4844 AMERICAN TRAVELERS LIFE CIVIL ACTION -LAW INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this day of , 20_, upon consideration of PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF, it is hereby ordered that the motion is granted and defendant shall produce the documents requested within 30 days of the date of this order or appropriate sanctions will be imposed upon further application to the Court. By the Court: J. SANDRA M.REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF Plaintiff, Sandra M. Reaka, by and through her attorneys KOLLAS AND KENNEDY, hereby moves this Honorable Court to enter an order pursuant to Pa.R.C.P. No. 4019(a)(1)(vii) & (viii) directing defendant, American Travelers Life Insurance Company, to produce all documents requested by plaintiff or suffer sanctions, and in support thereof avers the following: This action was instituted by a Complaint filed on August 11, 1999. Defendant filed preliminary objections to the Complaint on or about September 3, 1999. 2. On September 20, 1999, an Amended Complaint was filed. Preliminary objections to the Amended Complaint were tiled on or about September 28, 1999. On December 8, 1999, this Honorable Court held a hearing on the preliminary objections to the Amended Complaint. On February 10, 2000, this Honorable Court entered its Order of Court resolving the preliminary objections to the Amended Complaint. 4. On or about February 16, 2000, the defendant filed its Answer and New Matter to plaintiffs Amended Complaint. 5. On March I, 2000, plaintiff filed her Reply to New Matter. 6. Discovery in this matter progressed without incident until plaintiff submitted to defendant Plaintiffs Request for Production of Documents to Defendant-First Set on September l3. 2000. 7. Pursuant to Pa.R.C.P. No. 40,^,9.12, both defendant's answers and objections were due on or before October 14, 2000. 8. On or about September 18, 2000, defendant timely submitted to plaintiff Defendant's First Set of Objections to Plaintiffs First Request for Production Of Documents; however, it was not until November 9, 2000, that plaintiff received Answers of Defendant to Plaintiffs Request for Production of Documents to Defendant-First Set. 9. As submitted by defendant, the Answers of Defendant to Plaintiffs Request for Production of Documents to Defendant-First Set are incomplete. Defendant has failed to answer paragraphs I, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 28. At paragraph 26, defendant has asserted attorney work product in denying the documents requested. 10. Complete answers to Plaintiffs Request for Production of Documents to Defendant-First Set are needed and necessary to prepare plaintiff's case. 11. Plaintiff believes and therefore avers that defendant will not produce the documents requested absent a court order pursuant to Pa. R.C.P. No. 4019(a)( I )(vii) R (viii) directing defendant to produce all documents requested by plaintiff or suffer sanctions. WHEREFORE, plaintiff respectfully requests that this honorable Court enter an order directing defendant to produce the requested documents to Plaintiff's Request for Production of Documents to Defendant-First Set, as set forth above, within 30 days or suffer appropriate sanctions to be imposed upon further application to this Honorable Court. RESPECTFULLY SUBMITTED: J es W. Kollas, Esquire Supreme Court I.D. No. 81959 William C. Kollas, Esquire Supreme Court I.D. No. 06341 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEYS FOR PLAINTIFF Dated: I1-I'i. Ott VERIFICATION 1, James W. Kollas, attorney for the Plaintiff, Sandra M. Reaka, state upon personal knowledge or information and belief that the averments set forth in the foregoing PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF are true and correct to the best of my knowledge. 1 understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. 'Ames W. Kollas CERTIFICATE OF SERVICE I, Carole A. Rose, of the Law Offices of Kollas and Kennedy, hereby certify that I have this M *= day of November, 2000, served a true and correct copy of PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF by depositing same in the United States mail, first class, postage prepaid, addressed to the following: Mark H. Scoblionko, Esquire Scoblionko, Scoblionko, Muir, Bartholomew & Melman P.O. Box 1998 40 South Fifth Street Allentown, PA 18105-1998 LAW OFFICE OF KOLLAS AND KENNEDY BY:? Carole A. Rose PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court or if on January 1.0, 2001, before Judge Hess. possible, CAPTION OF CASE (entire caption must be stated in full) SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, V5. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, (Plaintiff) (Defendant) NO- 4844 Civil -Action 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion of Defendant for Summary Judgment, together with supporting Brief. 2. Identify counsel who will argue case: (a) for plaintiff: James W. Kollas, Esquire Address: 1104 Fernwood Avenue, Camp Hill, PA 17011 (b) for defendant: Mark H. Scoblionko, Esquire Address: 40 S. Fifth St., P.O. Box 1998, Allentown, PA 18105-1998 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: if possible, on Januarv 10, 2001, before Judge Hess. S` G rv Dated: December 4, 2000 Attorney for Defendant ? , rJ c? ?n cz? O J U U I of TPA is (• Yi> t,t'. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff vs. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant NO. 1999-4844 IN CIVIL ACTION JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS ORDER AND NOW, this day of 2000, upon consideration of the Plaintiffs Motion for Sanctions Against Defendant for Defendant's Failure to Produce Documents Requested by Plaintiff and Defendant's Answer in opposition thereto, it is hereby, ADJUDGED, ORDERED and DECREED that Plaintiffs Motion for Sanctions Against Defendant for Defendant's Failure to Produce Documents Requested by Plaintiff is DENIED; and it is further ADJUDGED, ORDERED and DECREED that reasonable attorneys' fees incurred by Defendant in connection with the defense of Plaintiffs Motion for Sanctions, in the amount of are awarded against Plaintiff and in favor of Defendant. BY THE COURT: J. MJM/rpt 11/27/00 (c:lplead\ConsecoWmerTravans.Reaka) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX NO. 19994844 OF THE ESTATE OF KENNETH E. REAKA,DECEASED, Plaintiff IN CIVIL ACTION vs. AMERICAN TRAVELERS LIFE JURY TRIAL DEMANDED BY INSURANCE COMPANY, JURY OF TWELVE PERSONS Defendant ANSWER OF DEFENDANT TO PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF COMES NOW, the Defendant, by and through its undersigned counsel, and for its Answer to the Plaintiffs Motion for Sanctions against Defendant for Defendant's Failure to Produce Documents Requested by Plaintiff, sets forth as follows: 1-2, inclusive. Admitted. 3. Admitted. By way of further answer, after the Preliminary Objections to the Amended Complaint were briefed and argued, the Court entered an Order, dated February 10, 2000, which struck the Plaintiffs claim for punitive damages in Count 2 of the Amended Complaint, granted the Defendant's demurrer to Count 3 of the Amended Complaint, and denied the Defendant's remaining Preliminary Objections to the Amended Complaint 4. Admitted, except that the filing date of the Defendant's Answer and New Matter to the Amended Complaint was February 23, 2000. 6-7, inclusive. Admitted. 8. It is admitted that, on or about September 18, 2000, counsel for Defendant timely submitted to counsel for Plaintiff Defendant's First Set of Objections to Plaintiffs First Request for Production of Documents, a copy of which is attached hereto as Exhibit "A" and made a part hereof. By way of further answer, on November 3, 2000, counsel for Defendant sent to counsel for Plaintiff Defendant's Response to Plaintiffs First Set of Requests for Production of Documents, a copy of which is attached hereto as Exhibit "B" and made a part hereof. By way of further answer, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that counsel for Plaintiff received Defendant's Response to Plaintiffs First Set of Requests for Production of Documents on November 9, 2000, and the same is neither admitted nor denied. 9. Denied. It is denied that the Defendant's Response to Plaintiffs First Set of Requests for Production of Documents is incomplete, and it is averred to the contrary that, as set forth in Defendant's First Set of Objections to Plaintiff s First Request for Production of Documents, a copy of which is attached hereto as Exhibit "A," Defendant properly objected to the following Requests for Production of Documents on the grounds that they are unreasonably broad, not relevant in any respect to the claims or defenses asserted in 2 the within action, not reasonably calculated to lead to discoverable evidence, are unduly burdensome and seek information which is confidential and privileged: Request numbers 1,3, 7,8,9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. Byway of further answer, with respect to Request for Production of Documents Number 26, which requested production of any and all documents relating to nursing home licensing in this matter, Defendant responded that any discoverable items had been produced and that there were none, other than documents obtained subsequent to the initiation of the lawsuit, which would constitute attorney work product. 10. Denied. It is denied that complete answers to Plaintiffs Request for Production of Documents to Defendant - First Set are needed and necessary to prepare Plaintiffs case, and it averred to the contrary that Defendant properly objected to Request for Production of Documents numbers 1, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,18 and 19 on the grounds that they are unreasonably broad, not relevant in any respect to the claims or defenses asserted in the within action, not reasonably calculated to lead to discoverable evidence, are unduly burdensome and seek information which is confidential and privileged. 11. It is admitted that Defendant will not produce the documents requested by Request for Production of Documents Numbers 1, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, unless ordered by the Court to do so, on the grounds that Defendant properly objected to the same, pursuant to applicable Pennsylvania Rules of Civil Procedure. By way of further answer, it is denied that Plaintiff is entitled to a Court Order directing the production of the documents requested by Plaintiff pursuant to Pa. R.C.P. No. 3 4019(a)(1)(vii) and (viii), and it is averred to the contrary. WHEREFORE, Defendant, by and through its undersigned counsel, respectfully requests this Honorable Court to deny Plaintiffs Motion for Sanctions against Defendant for Defendant's Failure to Produce Documents Requested by Plaintiff and to award to Defendant its reasonable counsel fees incurred in defending the Plaintiffs Motion for Sanctions, pursuant to Pa.R.C.P. 4019(g)(2). SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN Mark H. Sco lionko, Esquire Attorney ID #08070 40 South Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 Attorney for Defendant 4 VERIFICATION I, Mark H. Scoblionko, Esquire, attorney for the Defendant in the within case, verify that the foregoing ANSWER OF DEFENDANT TO PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF is legal in nature and the statements made within are true and correct to the best of my knowledge, information and belief, and as counsel for Defendant, I am qualified to execute the foregoing. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: December 4, 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff vs. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant NO. 1999-4844 IN CIVIL ACTION JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS I, Mark H. Scoblionko, Esquire, attorney for Defendant, certify that, on December 4 2000, a copy of the attached ANSWER OF DEFENDANT TO PLAINTIFF'S MOTION FOR SANCTIONS AGAINST DEFENDANT FOR DEFENDANT'S FAILURE TO PRODUCE DOCUMENTS REQUESTED BY PLAINTIFF was served upon the following party by regular mail, postage prepaid: James W. Kollas, Esquire Kollas and Kennedy 1104 Femwood Avenue Camp Hill, PA 17011 SC LIONKO, SCOBLIONKO, MUIR, Attorney for Defendant ARTHOLOMEW & MEL AN ' By S? Z??E?? ? ' Mark H. Scoblionko, Esquire Attorney I.D. No. 08070 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 EXHIBIT "A" MHS/dew 9118/00(correep/reeks/objections) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff VS. IN CIVIL ACTION AMERICAN TRAVELERS LIFE INSURANCE COMPANY, : JURY TRIAL DEMANDED BY Defendant . JURY OF TWELVE PERSONS DEFENDANT'S FIRST SET OF OBJECTIONS TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, to wit, this 18' day of September, 2000, comes the Defendant above-named, by and through its undersigned counsel, Mark H. Scoblionko, Esquire, and files these objections to Plaintiff's Request for Production of Documents to Defendant - First Set, which were received by Defendant on September 14, 2000, being specifically an objection to the following Interrogatories by virtue of the fact that they are unreasonably broad, not relevant in any respect to the claims or defenses asserted in the within action, not reasonably calculated to lead to discoverable evidence, are unduly burdensome, and seek information which is confidential and privileged: Request numbers 1, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN ark H. Scoblionko, Esq. Attorney I.D. #08070 Attorneys for Defendant 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 -2- EXHIBIT "B" SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 :CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED ANSWERS OF DEFENDANT TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT-FIRST SET Pursuant to Pa.R.C.P.No. 4009. 11, Plaintiff, Sandra M. Reaka, Executrix of the Estate of Kenneth E. Reaka, Deceased, by and through her attorneys, Kollas and Kennedy, hereby requests that Defendant, American Travelers Life Insurance Company, produce and furnish to Plaintiffs attorneys true and correct copies of the following documents within 30 days after service of this request: 1. Copies of all federal income tax returns which Defendant has filed for the years 1994 through 2000, including all forms, schedules, exhibits or other documents attached to or included with each such return. 2. All documents supporting or otherwise relating to any denials of Plaintiffs claims. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. 3. All documents relating to any procedure, policy, or practice, including but not limited to claims handling manuals, underwriting manuals, and training manuals, concerning handling, processing, evaluating, or denying claims submitted by Defendant's insureds. 4. All documents and communications, including but not limited to electronic media communications, that support or tend to support any and all allegations relating to coverage for Plaintiffs Decedent or Plaintiff's claims. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. 5. All documents and communications, including but not limited to electronic media communications, that fefute or tend to refute any and all allegations relating to coverage for Plaintiffs Decedent or Plaintiff's claims. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. 6. Any and all claims files, claims folders, underwriting files, or similar documents which relate to Plaintiff's Decedent or Plaintiffs claims. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. 7. Any and all documents relating to Defendant's financial insurers' financial exposure as a result of Plaintiffs claims. 8.. Any and all documents relating to reserves posted by Defendant against the underlying claims in this matter. 9. Any and all documents relating to the manner in which Defendant's reserves are established. 2 10. Any and all documents relating to reinsurance obtained by Defendant for Plaintiffs Decedent's policy. 11. Any and all documents relating to advertisements used by Defendant. 12. Any and all documents relating to advertisements used by Defendant to illustrate what services are provided to its insureds. 13. Any and all documents relating to advertisements used by Defendant to illustrate how its insureds' claims are treated. 14. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to Defendant's claim denials regarding untimely claim-filings, including but not limited to untimely proof of loss denials. 15. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to bad faith complaints or causes of action filed under 42 Pa.C.S.A. §8371 against Defendant. 16. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to good faith and fair dealing complaints or causes of action filed against Defendant. 17. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to unfair trade practices and consumer protection law violation complaints or causes of action filed against Defendant. 18. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to misrepresentation complaints or causes of action filed against Defendant. 19. All documents concerning any and all lawsuits, administrative proceedings, or claims that relate to breach of contract complaints or causes of action filed against Defendant. 20. All documents prepared by Derek Cook relating to the handling of claims submitted by Plaintiff.. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this ** 21. All documents prepared by Linda Swider relating to the handling of claims submitted by Plaintiff. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this request has no further personal files. 4 **request has no further personal files. 22. All documents prepared by Carol Elmore relating to the handling of claims submitted by Plaintiff. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this request has no further personal files. 23. All documents prepared by David Graham relating to the handling of claims submitted by Plaintiff= ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this request has no further personal files. 24. All documents relating to communications between Lorie Charles and Plaintiff. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this request has no further personal files. 25. All documents prepared by Lorie Charles relating to the handling of claims submitted by Plaintiff. ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. The individual specifically named in this request has no further personal files. 26. Any and all documents related to nursing home licensing in this matter. ANSWER: None, other than documents obtained subsequent fo the initiation of this lawsuit, which would constitute attorney work product. Any discoverable items have been produced. 27. Any and all documents related to Plaintiff's Decedent (other than documents provided to Defendant by this law firm). ANSWER: Defendant has no documents in its possession which are responsive to this request, other than those documents which are already in the possession of Plaintiff or those documents which have previously been produced by defense counsel. 5 28. Any and all nonprivileged documents on which Defendant may or will rely in its defense of this action. KOLLAS AND KENNEDY ?o William C. Kollas, Esquire I.D. No. 06341 Mmes W. Kollas I.D. No. 81959 1104 Femwood Avenue Camp Hill, PA 17011 (717) 731-1600 ATTORNEYS FOR PLAINTIFF Date: q??/vo , SCOBLIONKO, MUIR, MEW S MELMAN. i DATED: 11/3/00 v _ avu v, L6yY1 Attorney-I.D. No. 08070 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105-1998 (610) 434-7138 Attorneys for Defendant VERIFICATION I, Cx`vsa O C>r "^? verify that I am the «^^?a^,,`.? of Conseco Senior Health Company, previously known as "American Travelers Life Insurance Company," Defendant in the within action, and, as such, that I am 'tn „M^m authorized to sign this verification on behalf of Conseco Senior HealtWCompany; and that the facts contained in the foregoing Answers of Defendant to Plaintiff's First Set of Request for Production of Documents are true and correct to the best of my knowl- edge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authori- ties. ? L--,.9-? Date: O?ko?,c io,Zooa LI TI CL ?' U U sr co all rn I 0 4-1 4J 44 PPP444 1.1 a to ? Ga a?N * e RC£OH t cr N ~_ :. c_ o _7 C7 w ? 0 z y 6 W M W ? F y F- E? y ZO W U y ? W Z U ? x ? ? O O W N fx F W O ?. [ ?s] O ? ? F ? 5 6 ? 5 H `? y O P4 Ytl1RY•AD wI[o 1B'fa4 o•YNI10 -OV WtlOJ 1• MTIMYYWYNIf3la ISIT f4 rvMWO V Yyp 314?y1$'Try G •~ ro ~ a' w H "? C ? N m a + N a W F ? W ¢W C F 7?y a O ? U W F o W G [*L] q h ci 2 O U H aa C z H O H ? ppp f 8 1 Nil tl ..- a ;.-?. -a MHS/daw 11 r29/Od (pfead/motions/reaka.mot) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff VS. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant No. 1999-4844 IN CIVIL ACTION JURY TRIAL DEMANDED BY JURY OF TWELVE PERSONS MOTION OF DEFENDANT FOR SUMMARY JUDGMENT AND NOW, to wit, this 4" day of December, 2000, comes the Defendant above-named, by and through its undersigned counsel, Mark H. Scoblionko, Esquire, and moves this Honorable Court for summary judgment, and, in support thereof, avers as follows: 1. Plaintiff, Executrix of the Estate of her father, Kenneth E. Reaka, filed the within action, seeking benefits under a certain policy, known as a "supplemental nursing home and home health care policy," issued by Defendant. A true and correct copy of the policy at issue is attached both to Plaintiff's Amended Complaint and to this Motion as Exhibit "A," incorporated herein and made a part hereof. 2. The policy which forms the subject for the within action was issued by I Defendant on August 7, 1989, as a result of an application submitted by Plaintiff's decedent. 3. The Plaintiff's Amended Complaint alleges, without explanation, that Plaintiff is entitled to benefits in the amount of $101,144.99 as benefits for nursing home care and home health care. 4. The Complaint sets forth claims for the following nursing home confinements: (a) Cherrywood Health Care and Rehabilitation Center, June 9-22, 1994; (b) Elesy Manor, Inc., September 1, 1994 - August 29, 1995; (c) Levindale Hebrew Geriatric Center and Hospital, September 14 - November 28, 1995; (d) Autumn House Assisted Living, November 28, 1995 - December 2, 1996; and (e) Vann Senior Living, December 2, 1996 - October 25, 1997 (excluding April 1-10, 1997). 5. Plaintiff has also alleged, without explanation, that she is entitled to benefits for home health care. 6. On page 5 of the policy in question, under the heading, "Benefit Provisions," the policy provides that it will pay a monthly benefit amount, in this instance, an initial monthly benefit amount of $2,000.00 for covered confinements in a nursing home facility, and a monthly benefit, in this instance, an initial benefit of up -2- to $1,000.00, towards the usual, customary and reasonable charge for services provided by an "Approved Practitioner" as part of home health care services. 7. Plaintiff's decedent never received care from an "Approved Practitioner" as part of home health care, and there is thus no basis to assert a claim for benefits for home health care under the subject policy. 8. Plaintiff's decedent's daughter, Darlene Israel, requested from the Defendant, and was provided with, a copy of the insurance policy at issue in August, 1994. Attached hereto as Exhibit "B," incorporated herein and made a part hereof, are phone logs evidencing a telephone conversation between Defendant and Plaintiff's decedent's daughter, together with a supporting Affidavit, indicating that a copy of the policy was requested in August, 1994 and that a copy was sent to Plaintiff's decedent in care of Darlene Israel on August 9, 1994. 9. Plaintiff's decedent, and/or his family representatives, had a duty to read and deterrnine coverage options under the policy at least as early as August, 1994. 10. Had claims been submitted in August, 1994, the claims would have been timely and would have been considered on the merits by Defendant. 11. Additionally, by check number 6947, Plaintiff's decedent's daughter, Darlene Israel, on July 17, 1995, paid a premium to Defendant for the insurance policy in question and noted the Defendant's telephone number on the check. A true and correct copy of check number 6947 is attached hereto as Exhibit "C," incorporated -3- herein and made a part hereof. 12. Additionally, the form of premium notices utilized by American Travellers Life Insurance Company changed in or about November, 1995. 13. Prior to November, 1995, the premium notices utilized by American Travellers Life Insurance Company did not specifically designate the type of insurance policy for which the requested premium was due, but, as of November, 1995, and at all times thereafter, the premium notices utilized by Defendant indicated the type of insurance policy for which a premium was being requested. 14. Attached hereto as Exhibit "D," incorporated herein and made a part hereof, is an Affidavit from one Ernest lannucci, who was Vice President, Chief Information Officer, of Defendant in 1995. 15. Alternatively, Plaintiff's decedent and/or his family representatives had a duty to read and determine coverage options under the policy at least as early as November, 1995. 16. Alternatively, had claims been submitted in November, 1995, the claims would have been timely and would have been considered on the merits by Defendant. 17. All of the claims submitted to Defendant, and which are the subject of the within action, are barred as having been untimely in that the written policy states as follows: "PROOF OF LOSS: The claimant must give us written proof of loss within six (6) months of it happening. If he or she has a good reason for not doing so, we -4- will not contest the claim. However, the claimant must give us proof no later than one (1) year from the time normally required unless legally incapable." 18. The within action is also barred, in whole or in part, pursuant to the applicable terms of the policy in that it has been brought more than three (3) years following the time a claim or claims were required to have been submitted, such that any claims for periods prior to February 11, 1995 are barred, being claims more than four years six months older than the filing of the Complaint. 19. Additionally, the policy defines "Nursing Home Facility" to mean, among other things, a "duly licensed [facility] by the jurisdiction in which it is located to provide the services ... receive(d)." 20. The claims asserted with respect to the confinements in question are barred and not payable under the policy in that none was a licensed facility in accordance with the aforesaid policy definition. Attached hereto as Exhibit "E," incorporated herein and made a part hereof, is an Affidavit from the Director of the Office of Health Care Quality for the State of Maryland evidencing such fact with respect to Vann Senior Living. Similar affidavits with respect to the other facilities will be furnished to supplement this Motion. 21. The claims in the within action for nursing home confinements are also barred because the following policy conditions precedent were not met: (a) The nursing home admissions were not required as a result of c -5- „ 3i "Ali sickness or injury which is the same as or directly related to that which caused the preceding hospital stay; (b) Plaintiff's decedent was not under a planned program of observation and treatment for a sickness or injury which made the confinements necessary; and/or (c) Plaintiff's decedent was not personally examined by an attending physician each month during confinement and no attending physician certified as to the degree of care needed. 22. There are also no facts of record that would warrant submission of a bad faith claim to the jury, and Defendant is entitled to summary judgment with respect to such claim. 23. Attached hereto as Exhibit "F," incorporated herein and made a part hereof, is a copy of the transcript of a deposition given by Darlene Israel, Plaintiff's decedent's daughter, on February 10, 2000. 24. For purposes of the within Motion there are no disputed issues of fact, and the only issues are issues of law, to wit, whether or not Defendant is entitled to the granting of summary judgment, in whole or in part, with respect to the claims submitted in the within action. 25. Defendant is entitled to the granting of summary judgment in the within action pursuant to Pennsylvania Rule of Civil Procedure 1035.1. -6- WHEREFORE, Defendant respectfully prays that this Honorable Court grant summary judgment in its favor with respect to all claims asserted in the within action. SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN By: ti / Cr, 9?1D?y Mark H. coblionko, Esquire Attorney I.D. No. 08070 Attorneys for Defendant 40 S. Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 -7- VERIFICATION I, MARK H. SCOBLIONKO, ESQ., certify that the statements made in the foregoing Motion which are within my personal knowledge are true and correct and that those which are based on information that I have received from others I believe to be true and correct. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S,A. §4904, relating to unsworn falsification to authorities. GGG MARK H. SCOBLIONKO, ESQUIRE Dated: December 4, 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff VS. IN CIVIL ACTION AMERICAN TRAVELERS LIFE INSURANCE COMPANY, : JURY TRIAL DEMANDED BY Defendant . JURY OF TWELVE PERSONS CERTIFICATE OF SERVICE I, Mark H. Scoblionko, Esq., attorney for Defendant, certify that, on December 4, 2000, a copy of the attached Motion of Defendant for Summary Judgment, together with Defendant's supporting Brief, were served upon Plaintiff's counsel by regular mail, postage prepaid, as follows: James W. Kollas, Esquire Kollas and Kennedy 1 104 Fernwood Avenue Camp Hill, PA 17011 SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN /B4 ?A H. Scoblionko, Esq. Attorney I.D. #08070 Attorneys for Defendant 40 S, Fifth Street P.O. Box 1998 Allentown, PA 18105 (610) 434-7138 2 THM 10 NOT A MIDICAR1 SUPPLEMW POLICY. fjo 4W I/R[?1`??d .I AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18978 ;. ., . . -- (REFERRED TO IN THIS POLICY AS "WE," "US;" OR "OUR'J g _ PREMIUM MAY BE INCREASED UPON THE RENEWAL DATE. In this policy "you";a "your" refers to the Insured named in the Schedule.. , We agree to Insure you agaliW.bsa due to InN under this P N or Skkness to ft., event stated in lhiti,oA?dy;Paymertt of benefits agcy wig be sybject„tb all of its tense,;.... ire-, Ir CONSIDERATION AND TERIIAS This policy is issued in consideration d: (1) the advance payment of the Initial Premium on or before the Effective Date. and (2) the staternenb contained in the attached application. This Policy is effective at 12 Noon, at your residence, an the Effective Data shown in ttie Schedule gnues. in force for the Term epeeiW in the Schedule subject to the Grace . Period. This PotiGy'inaytie (or?Ike terms in aoocirfe'nob'.' the Renewabilky provision :i w•." ttt NOTICE OF TEN. Df pIGNT TO EXAMINE POLICY "! ' Within ten (1 days receipt Of this P . , : `(10) of pt olicy, you may realm it tows or our authorized agent for any reason. Immedi. a* upon our receipt as stated. the Pdky wig be Ctxtddeied vdd from the beginn(ttg, Any. Pvni rrn paid will be refunded. F^ nAtR.?F ?1 RENEWABILITY - GUARANTEED RENEWABLE Thb PdkY b guerenteed renewable fa your lifetime a until One Policy s Aggregate Maximum Benefit Period has been reached. k may be kept in force by the timely payment d premiums We cenrtct cerncel this Policy as kxng as you pay ,the premiums, w4=?j!• `!e eN?el'p?emium rates We. can only change them ff Otey ere champed Ibf all ofd`s cn lhte po8cy form,Ftenewal premiums due after a change is implemented w0 bA based on tine new raw in your Notice rtYe ranee tte sent ffi least 30 da in ad ?j ya vents. Premium rates ten rioF'dd•chinipedmorre than once ' O c'C zn SUPPLEMENTAL NUR'61W NOUN A 6I NOME HEALTH CARE POLICY.::.,.. {..• rv, ,Yi TABLE OF CONTENTS 1. BENEFIT PROVISIONS Pape Nursing Hare Facility Benefits .......... 5 Hans Haft Care Benefits Recurrent Benefit Prioda b W=gais Maximum Policy E" Period ................... b W at Premtim BenefR ......... ......................... 8 2. DEFINITIONS ..................................................................... 2.5 3. EXCLUSIONS AND LIMITATIONS ...................................................... 8 4. GENERAL PROVISIONS ............................................................ 8,7 5. PRE-EX(STING CONDITIONS LIMITATIONS .............................................. 8 DEFINITIONS "APPROVED PRACTITIONER" means a licensed registered graduate professional nurse M.N.), licensed practical nurse (L.P.N.), can Approved hemotherePY specialist physical therapist, inhalation therapist, or speech therapist. No person considered Fedard stal and Practitioner unless; he or she is Certified andlor Iloerroed in socordance with dl will appicabla .?._. _. _ .. _ __ ....._.!??edops to.prrnride the teryioe? and auppAeo.Y?u !eoeive:... t;. "ELIMINATION PERIOD" means the period of time, stated on the policy Schedule page, whkh mud pass before .G:,tiwcN be payable under this polity. The Irreured mud sail ::'~ }fe'ciiily. However, the aaee??rorW nu?' t?bfeptns after 1B0'con?secutlve d?aya? Pry t??N?ryrO horns th0 home fectiry, for Which benefrtawere irrairredn 180 days of dieduupe Irom a ntrra :+1 payable Under this polity, thisconfinarnent wit be caneldered a00fntlnxrdfen of the find nursing home facility confinement No efimirutdon period wig be required in this instance, a prig hospiW stay of 3 coraearfive days. ..HOOS eveans to itn ale eon (1) operated pursuant to law, (2) maintaining and operating, either on Its promises prearranged basis, medical, diagnostic and mejw surgical faclitlae for the ffNKkd un ewe der rd treatment of sick or Injured persons on an inpatient basis; and (3) provides 24 hour nursing service by or the supervision of registered graduate profesabnd nurses (R.N.'e) and pmvides the services of one or more "HOSPITAL" does not Include: (1) convalescent homes,, (2) convabsoent red or nursing facilities; i. the aged. - g or alcoholic rehabilitation. (4) facilities primarily affording custodial. reeL ridric or educational kxrs a sp a ial unit primarily used for extended care or as a nursing. red, or convalescent home shall not be considered "INJURY" means aocdental bodily injury sustained while this Policy is in force. Such Injury must cause loss direct' and independently of all other causes and result in loss covered by this Polley. "NURSING HOME FACILITY" means a sMW nursing, intemtediate care, or custodial care facility, which: (1) pro- video nursing care on an irtpatlent bads (2) k other than purely residential in nature, exnePt far astodsl care racitiet (3) h defy Ncensed by the jurtedictlort in rNlich it fa located W provide the services you receive; and (4) Is operated . pursuant tq appticabb laivp-arid regklations. _ .. . NURSING HOME FACILfiY CARE" nnxians lore of sirs tips regularly end apWmariy given Nursing Home Fk ty '? . Padenh on a 24 hour-a dajr basis ft mud bs: (1) care based upon a Phyeideh s regular wiltten pdly 4 d b(?y Rceneed and a mdrkaink fhs Insured Person's candtloni cr atlernpt'to do IN (8) care super gtralped professional personnel: and (4) care wfdch is not rgnneAy avelebN in a hospid. "frFIY91CIAN" maern any Woefwed pracwioner or the hoeing erh operating wkhIn the ioape d his or her Ioaw. < Y IN FORCE" meari tiro policy will be in farce on the affective dale Bled in to ddnduls Page for now or the policy will a In. force six months following the SNOW" date tilted N thsy ?SdiikkAs Papa for pro full..-: •:. . s ? - - •fZi7a *?d; ?•' 'Net A., 1*9 Two Nr•%•M ?. F!?1vr.`^NIgVfG..rtrn.? .r .. d.yatM U•.e.".... :. r... r POLICY SCHEDULE POLICY NUMBER 112681 8/07/89 EFFECTIVE DATE INSURED KENNETH E REAKA 8/07/90 FIRST RENEWAL DATE ACE 69 ANNUALLY TERM INITIAL PREMIUM 1290.00 1280.00 RENEWAL PREMIUM BENEFITS NURSING HOME BENEFITS Monthly Sonefit Amount Elimination Period 2000 Maximum Benefit Period 0 Days 5 Year(s) NOME HEALTH CARE BENEFITS Monthly Benefit Amount Aggregate Maxlmdo Nome Health s 1000 Caro Benefit Period 1 Year Aggregate Maximum policy Sonefit Period S Year(s) THE PREMIUMS SHOWN ABOVE INCLUDE PREMIUMS FOR ANY BENEFIT RIDERS ISSUED ON THE SAME DATE AS THIS POLICY. BENEFIT RIDERS ISSUED ON THE SAME DATE AS THE POLICY: SIR-se PA, AUTOMATIC BENEFIT INCREASE RIDER: 9ENEFIT8 WILL INCREASE 5X ON EACH OF THE FIRST FIFTEEN YEAR ANNIVERSARY DATER. S RT 60-se PA Page Thrse k01fE Oe?1CE USE oNLr Q 'Q' E atE AEOUESTED t?q IO.er Trio - I MITE (/ $ 1r 7• O sSU Ianri0er 0 B NI' FdY TAW Miry! robe mrbd eAVM%M C Tom N Yenim Tine Po C 11,111111 1 NC? Fusty are Yw(y 020 oM mNr ' :p per, 1,990 Od Mee. c loo ox" "mom - s y"11111) "0 a /? Q Y) e° ?n cam N ?M KT All Questions Must Be Answered Completely or the Application Will Be APPLICATION FOR HEALTH INSURANCE TO: AMERICAN TRAVELLERS I I= rllsrroAure NAWBAMW w.nnww..... on. a sNe (e)_s., (a) y'i JarcPa,?h ,P? I'°Ar l,'I "Won 1 Im s? ?- /GIY?if/?y /LI { fJNA. 1-7D Anr I (__ 'f - / ?i 7/ DO NOT APP FOR THIS POLICY IF THE ANSWER IS YES TO ANY PART OF THIS QUESTION T.. .. 1. (e) To the best of your knowledge and belief, do you have any of the following conditions: internal cancer (now or within the past year); leukemia; cirrhosis of the liver; Alzheimer's disease; any brain disease or disorder, whether organic or not; kidney failure requiring dialysis; multi sdaosis; paraplegia or quadriplegia; or amputations arising from debates or a circulatory disorder; or osteoporosis? yN ? Ne B/ (b) Are you currently a resident in a nursing care or similar tacit ly, a have *t?hree nfined in such a facility during the last 24 oortlhs; or are you unable to walk bedridden, incontinent, «unable to pedorm eve vrUes (such as eating, dressing, bathing, cookirhp) wd w the aid of a wheelchair or walker or another person; or require the use Yae 0 (c) Are you currently confined in a hospital. or have you been confined in or more times in the last 24 months?Yn 0 No t?/ IF THE ANSWERS ARE NO TO THE PRECEDING QUESTION, PLEASE ANSWER THIS QUESTION FULLY. COMPLETE DETAILS ARE NEEDED TO PROPERLY DETERMINE THE PREMIUM TO BE CtlyHAR?GgED IN ACCORDANCE WITH THE COlast MPANY'S rsEVALUATOR CHART. 2 (a) NList all conditions C UD for which ou are cu ff NAT RV ILLNESS OR INJURtreated or have been treated in Y, DATES OF EXAMINATIONS AND D TREATMENT RECE D AND PROGNS. Use reverse side or separate sheet it more space is needed. jo 14.61 h *we, ^ asv T R G tit t ?¢La? v ?iy (b) Name of Family Phv=an (7 Y 5. I have reed 0 andareuusa uriuo wrhtert IAerobya t meta morkno authorization i Died belt for suitable for your insurance creeds and are you able to afford this in ere to the above questions before signing this application. pklb lo the best of aiowladpa?and belief the party is agree that repres? I c«tily that I have Wei fr the agent any required outline of cc f Insurance company, hospike, nursing home or other medied of rtb ..or. my hesllh to ON such jNoenalion to American TraveAersf l.do.l 7 w uvim r R cilia ? day of is rent. , irrlirarioe opvsrape of the Pr. - - Imamed rand find _._.. e? Ya O'No 0 answers are correctly written as given by me and by Mrame t mme by «b and Medicare Supplement 67j"kw 0f dh« medal Practitioner havkg any iN«- ce Company. I a pdooopy of this Propored kq..Ql stMr.. ad wppape d the ryps and aeau l appied ell pried the emle?oPappieatlon waesA Q Aerre r / /re K ! 70 / 07 S` sa 3. Preelostirlg corldoiorts are corhdtions 1« wh' advice a treatment was recanmerWed « received in the 6 month period just txlore eRecdvs tlats d coverage. Do you understand tlhat mrhfinernenht or other loss due to a pree>ostirg condNOn wig nol be covered if Ya? ' tlIe 8 rtlorah period IoAowirg the egective date d your ooverege? 4. Lhe aN kxq temn care nursing. home coverage (more then 100 days) in force in tlhis «any Canparry. Stets it arty coverage is to be r?? « ; chertped by the insurance bang appfed f« K so, have you reserved the required rhotice hen reoardrho reclarerrhem7 r.. I`t u,? r? ' fir s bas/ "PRE-EXISTING CONDITION" means a condition for which medical advice or treatment was recommended by or received from a physician within a six month period immediately preceding the Effective Date of coverage. ".REASONABLE CHARGE" means a charge which does not exceed the regular and customary charges for, or the fair and reasonable value ,Imthe services and es with the charges you receive. The Reasonable Charge Wit be determined by comparing the expense you made for similar services and supplies in the locality concerned to persons whose age and medical condition are similar to yours. "SICKNESS" means sickness, illness or disease diagnosed or treated by a Physician after this Policy's Effectvs Date and while this Policy is in force. BENEFIT PROVISIONS NURSING HOME FACILTIY BENEFITS We will pay the applicable Monthly Benefit Amount set forth in the Policy Schedule for each month you are confined in a Nursing Home Facility, as darned. Benefits start with the day after the Elimination Period Shown In the Policy Schedule. Payments are subject to the Aggregate Maximum Policy Benefit Period described below. We will pay this be rt onty N your confinement: (1) begins: (a) while this Policy is in force; and (b) within 30 days of discharge from and (ta required due tp? mile this Pdby ores in force and which contlnued for not less than 3 consecutive days jury or S(ckness which is the same as or directly related to that which caused the prior Hospital stay and (3) is under a planned program of observation and freatment in accordarxxs with the standards of medical practice for the Sickness w Injury, which made the confinement necessary. Your attending Physician must: (1) personally examine you each month you are so confined; and (2) certify as to the degree of care needed. Benefits for periods of confinement of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of confinement MAXIMUM BENEFIT PERIODS - The Maximum Benefit periods for confinement in a Nursing Home Facility, as defined, are set forth in the Policy Schedule. The Maximum Benefit Period is the maximum number of monthly benefits we will pay for all confinements In a nursing home facility, as defined. HOME HEALTH CARE BENEFITS The benefits stated below will be paid for care which you receive in your home from an Approved Practitioner while your policy is in force, to the extent such care is: 1) certified as required by a physician then attending you for the Injury or Sickness for which care is received from an Approved Practitioner, and 2) is received during a Benefit period which begins (a) within 30 days after youa re discharged from a Nursing Home Facility confinement of at least 30 days and (b) if such Nursing Home Facility confinement followed within 30 days after the end of a Hospital stay of at least 3 consecutive days We will pay the Monthly Home Health Care Benefit Amount set forth in the PolicySchedule for each month you receive care at home from an Approved Practitioner. Benefits will be paid towards the usual, custom and charge for services provided by the Approved Practitioner. ary' reasonable Benefits for Home Health Care Services of less than one month will be paid at the rate of 1/30th of the monthly benefit for each day of services. The Policy Schedule sets forth an Aggregate Maximum Home Health Care Benefit Period. That Aggregate Maximum is the maximum number of monthly benefits we will pay for Home Health Care Services. A Benefit Period will end when you have not received any such care from an Approved Practitioner for 90 consecutive days. RECURRENT BENEFIT PERIODS If Nursing Home Facility benefits have been paid and you are again confined, the second confirr®ment will be co& sidered a Continuation of the first unless separated by at least 180 consecutive days. N separated by 180 consecutive days. Ore second confinement will be considered to be a new one. In the latter case. a new Elimination Period applies as well ll the requirements of a prior hospitalization as stated in the Nursing Home Facility Benefit Provision. Other. separate Elimination Period will apply. ATL-WP-a&PA Page Flvs AGGREGATE MAXIMUM POLICY 2MVIT PERIOD . 0 ' r. so We Thum chedule al Period we forth an Aggregate Maximum Policy Benefit Period. That aggregate maximum is the max-ben Home Health Care dud I this for confinement In any comblnhuiorh of Nursing Hama Faciptlea and n0 policy. WAIVER OF PREMIUM. BENEFIT We wR waive the payment of each premium falling due after the cornrtisncemeM Of a covered Nursing Home Facility confinement, and during its uninterrupted continuance, subject to the following: (1) Written prod of confinement must be received as soon as reasonably possible during your lifetime; (2) The confinement must be one for which benefits are payable under this Policy; and (3) You must be continuously confined for a period of 180 days before the benefit provided herein is applied. The premium payment waived will be that premium according to the mode of payment in effect at time of commence. ment of confinement - I.e. 0 payments are normally paid quarterly. we waive the premium payment for the same duration and for any successive periods that may become due while confined. PREEXISTING CONDITIONS LIMITATION No loss due to a Pre-existing Condition will be covered unless that loss begins more than six months after the effective date of coverage. EXCLUSIONS AND LIMITATIONS This Policy does not cover loss caused by: (1) routine physical examinations; (2) simple rest care, hotel privileges or residential care; (3) declared or undeclared war or act thereof; (4) mental. nervous or emotional disorders wttitout demonstrable organic origin (Alzheimer's Disease is covered. as any other sickness); and (5) charges for services, use of Wild" or supplies that you are rat legally obligated to pay. GENERAL PROVISIONS ENTIRE CONTRACT: This policy, including any attached papers, constitutes the entire contract. No change is valid urd: (1) approved by one of our executive officers; and (2) endorsed hereon or attached hereto. No agent has to change this Policy or to waive any of its provisions. aunty TIME LIMIT ON CERTAIN DEFENSES: (a) After two (2) years from the effective date of coverage, no misstatements, except fraudulent ones, made in the application may be used to void this Policy. or that coverage, or deny a claim for lose incurred commencing after the two (2) year period. (b) No claim for loss incurred commencing after six (6) months from the effective date of coverage will be reduced or denied because a sickness or physical condition had existed six months before the effective date. GRACE PERIOD: A grace period of 31 days is granted for the payment of each premium due after the first premium, during which time the Policy continues in force. REINSTATEMENT. If the renewal premium is not paid before the Grace Period ends, this policy will lapse. Later ac- ceptance of the premium by us, or by our agent authorized to accept payment, without requiring an application for reinstatement will reinstate the Policy. If we require a reinstatement application, you will be issued a conditional receipt for the premium. 0 we approve your reinstatement application, the Policy will be reinstated as of the date of our approval. If we disapprove your applica- tion, we must do so in writing within thirty (30) days of the conditional receipt. Otherwise, your Policy will be reinstated thirty (30) days after the date of the conditional receipt. The reinstated Policy will cover only loss resulting from accidental injury as may occur after the date of reinstatement and lose due to sickness as may begin more than ten (10) days after that date. In all other respects, bath you rights an will d our rights under the Policy will be the same as before termination. Any premiums we accept for a reinstatement be applied to a period for which premiums have not been paid. No premium will be applied to any period more than sixty (60) days before the date of reinstatement. ATL-NCP•88•PA Page Six NOTICE OF CLAIM: We must receive written notice of pain within six (6) months of loos. If not, as won as reasoneW Possible. Notice to the Home Office or authorized agent is apoeptable. MM FORM!!r tie wit furnish forms to Prove lea. We will do eq upon our receipt of rhotice of claim. If fora we not fumihed within 15 days, the claimant will be considered to havq oooVW V. within the time for filing proof, the ddmsnt pivsa us written proof speollfcapY describing the loss. PROOF OF LOSS: The claimant must give us written prod of loss within six (6) maths of it happening. If he or she has a good raison for not doing eo, we will not coolest the clakri However. the daitmer t must give us prod no later then am (1) year, from the time normally required unless lepelly incapable. TIME OF PAYMENT OF CLAIMS: Benefits payable under this Policy fa any bas other Ow Ioa for wfdoh periodic P"nf Is provided wig be paid hmedatety, upon receipt of written prod of loss. Subject to written prod of loss, all scoured benefits for loss for which periodic payment is provided wit be paid monthly. Any balance mmdNng unpaid at the end of our liability will be paid Immediately upon receipt of written prod. PAYMENT OF CLAIMS: Ali benefits will be payable to you. Any accrued benefits unpaid at the Insured's death will be paid to the estate. PHYSICAL EXAMINATION: At our -' SEr require e We shag have the right and opportunity to examine any ckWM when and as after as we may reeeaheWy whit a dearin"is'pendrg. LEGAL ACTIONS: No *0 or equitable action shat be brought to recover on thla Policy .'.p ter written proof d loss ha been furnished. No action shell be brought after the end of m? than sixty (60 days years South Carolina six (6) years; in Kansas five (5) years) from the time written prod of loss Is required. J . MISSTATEMENT OF AGE If yowl age has been misstated, all amounts payable did be such ea the prerNum paid • . would have purchased at the donrec( age. ' SP . `•" CONFORMITY WITH STATE STATUTES: An Of your state on such date Is hereby provision this Policy, which m its require Date conflicts with the OU88 3,•<. slay amended ded t to conform to Its its minimum riqulrernerhts. UNPAID PREMIUM: When a claim is paid, any premium due and unpaid may be deducted from the dalm payment, ILLEGAL OCCUPATION: We will not be gable for lose due to your being engaged in an Ibgal oocupagon or for whO a contributing cause was your commission of or attempt to commit a felony. INTOXICANTS AND NARCOTICS: We wig rat be liable for loss due to your being intoxicated or being under am k*wm of a narcotic unless administered on 'a Physician's advice. IN WITNESS WHEREOF, we have caused this Policy to be signed by our President and Secretary, Susan Mankowsld A4-4--John A PovM Secretary President Coudatlgrhature of Licensed Resident Agent: E £' .. Of required by State) ... '.: n ;,gin ?Cp?e p?; :0. ....nit . PeQa Bav/11 t ?w•.w,w?.....w......r+......... -..?. o-..•.n.ww?.?... ... nom.....,.. ?' Y• IMPORTANT MESSAGE TO OUR POLICYHOLDERS .• ; fF .. Dear Potic"der: Cenoetling a IieaAh f5sural noe po loy you already own and purchasing a new one, due to encourage- ment by any agent, is celled replacement. Some states have laws which forbid any iri epfesentel on or Incomplete comparison by any agent that may occur at the time of replacemart• These laws re. quire a written and signed comparison of your existlng PaICY and the recommended new policy be given to you. • ' Beware of anyone who urgm you to replace this.-policy without allowing you time to csgefuey lnvestgata _ proposal. or discourages you from talking with a represot0ve of the company whose tcv is being L%*nmerded15C!eplacgme - -- For Pair protection: if you are encouraged to replace this policy, we urge you to seek advice and take the time to investigate any recommendation". Keep in mind that you can request changes in your 7 ,;?oAcy tong after. Its effective date. r ?.':•. Jcihn A. Powell `Y President •,;tea ;. a L 'rt ?. ".:. {?.: + t•I.c... _ • .' I J 171 7 y ,i t r7'? ? MC' '1 / NYy w...' ttluniuw HOPE 4 rH CAM Caf, • f T. AMERICAN TRAVELLERS LIFE INSURANCE COMPANY 1800 Street Road Warrington, Pennsylvania 18978 AUTOMATIC BENEFIT INCREASE RIDER This rider" be a part of the policy to which it is attached: that policy will be called "the Poky' in this rider. E as sisted in It" rider. all terms, condditlone, limits, and exceptions of the Policy apply to this rider as to the Pxoopt olfoy. This rider is Issued in consideration of (1) the statements in the application for it And (2) advance PsVnwt of the first Rider Premium. The Rider Premium Is Included in the Premium for the Poky which Is shown in tiro Policy Schs". EFFECTIVE DATE This rider takes effect as of the Policy Date, to which this rider is attached. AUTOMATIC BENEFIT INCREASE In omsklanstion of the first Rider Premium. we WIN Increase your Monthly Nursing Home Facility Bandit and your Home Health Care Benefit on each of the first fifteen (15) policy year anniversary data The Benefit increase will equal five percent (5%) of the Policy's Initial Monthly Nursing Home Facility Benefit, and Home Heats Care Benefit stated in the Policy Schedule Pape. Arl example of the increased benefit, based ulion an initial $100.00 Monthly Nursing Home Facility Benefit I& POLICY YEAR ANNIVERSARY 1 2 3 4 5 10 15 1e and thereafter $105.00 110.00 115.00 120.00 125.00 150.00 175.00 175.00 The increase will apply only to benefte payable on or after the date of increase, even if confined In a Nursing Home Fac0y or receiving Home Health Care Services at that time. would 1 ? lepeas been and is subsequently reinstated under the provisions of the attached pocky. the benefit level which applicable had coverage remained continuously in force will be payable. TERMINATION This rider will terminate on the earlier or: (a) The data the Policy terminates; or (b) The end of be last period for which the premium required to keep this rider in force is paid, eubjec to "Grace Period" in the Policy. In witness of the above, AMERICAN TRAVELLERS LIFE INSURANCE COMPANY has caused this dder to be signed by IS President. qer/? ` '14,2? 40Lhn A. Pow en President MONTHLY BENEFIT AMOUNT ATL43IR418 0 I?d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA,DECEASED, Plaintiff VS. IN CIVIL ACTION AMERICAN TRAVELLERS LIFE INSURANCE COMPANY, JURY TRIAL DEMANDED BY Defendant JURY OF TWELVE PERSONS AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHARON THORNHILL, being duly sworn according to law, deposes and states as follows: 1. I am an individual who has reached majority and whose business address is c/o Conseco Senior Health Insurance Company, 11825 N. Pennsylvania Street, Carmel, IN 46032. 2. I am presently employed by Conseco Services, LLC, but was formerly employed by American Travellers Life Insurance Company, the Defendant in this action. 3. I have been continuously employed by Conseco Services, LLC, an affiliate of American Travellers Life Insurance Company, and which provides services to all of its affiliates, or American Travellers Life Insurance Company since 1997. 4. In 1994, I was a Supervisor in the Customer Service area, and, at the time, one Mary Kendus was also employed by Defendant in the Customer Service area. 5. In 1994, the function that Mary Kendus performed reported directly to me. 6. In my then-capacity as Supervisor in the Customer Service area of American Travellers Life Insurance Company in 1994, I was familiar with internal computer records kept of telephone conversations between policyholders and their representatives and employees of the American Travellers Life Insurance Company in my department, and actions taken by the American Travellers Life Insurance Company as a result of such telephone conversations, all of which were business records regularly and customarily kept by American Travellers Life Insurance Company. 7. Attached hereto as Exhibit "A", incorporated herein and made a part hereof, is a copy of the business record of the Defendant, kept in the usual course of Defendant's business, which consists, among other things, of a telephone log of August 1, 1994 and action taken on August 3, 1994 as a result of the telephone call of August 1, 1994. 8. Based upon my knowledge, information and belief, the record in question was prepared by the aforesaid Mary Kendus. 9. Based upon my knowledge, information and belief, the said Mary Kendus received a telephone call from Darlene Israel on August 1, 1994, at which time Darlene Israel requested that a duplicate copy of the nursing home policy issued by American Travellers to Kenneth E. Reaka be sent to him in care of Darlene Israel to her home in Baltimore, Maryland, and, on August 9, 1994, as a result of the August 1, 1994 telephone request, Mary Kendus sent a duplicate copy of the policy to the said Kenneth E. Reaka in care of Darlene Israel to her home in Baltimore, Maryland. SHARON THORNHILL Sworn to and subscribed before me this 8011 day of Lkt t m- bt ,- , 2000. ? 11 ( I '\- Notary Pu lic EXHIBIT "A" May 05 00 04:03p BANKERS 336-6715 P.2 MSGO OSFM AMERICAN TRAVELLERS CORPORATION BROWSE MSGOOIB DATE : 5/05/00 RGENCY/CUSTOMER SERVICE LOG/INdUIRY SYSTEM TIME: 15:10:27 OPt Co Kay Name Ms0 Seq# Req Date Status X 002 142681A REAKA*KENNETH E I 1 8/01/94 CLOSED X 002 142681A RERKA*KENNETH E 2 -2/24/98 CLOSED X 002 142681A RERKR*KENNETH E 3 2/25/98 CLOSED X 002 142681A REAKA*KENNETH E 4 4/13/98 CLOSED X 002 142581A RERKR*KENNETH E 5 12/68/98 CLOSED 002 1426868 KRRCHNER*LEROY F 1 4/12/95 CLOSED 002 142686H KRRCHNER*LEROY F 2 7/21/95 CLOSED 002 14268GR KRRCHNER*LEROY F 3 6/01/98 CLOSED 002 1427378 DRVIS*DOROTHY P 1 4/30/93 CLOSED 002 1427378 DRVIS*DOROTHY P 2 7/18/94 CLOSED 002 1427378 DRVIS*OOROTHY P 3 8/01/94 CLOSED 002 142737A DRVIS*DOROTHY P 4 7/13/95 CLOSED 002 142737A DRVIS*DOROTHY P 5 8/20/96 CLOSED 002 1427378 DRVIS*DOROTHY P I 6 8/26/97 CLOSED 002 1427388 GRRROTT*LINA 1 2/12/93 CLOSED + May 05 00 04:04p BANKERS MS0001FM AMERICAN DATE: S/OS/00 AGENCY/CUSTOMER Insured s Information I REAKA*KENNETH E 42 ALFRED OR LEWISBERRY PR 398-8715 . p.3 TRRUELLERS CORPORATION REVIEN MSGOBIRR SERVICE LOG/INQUIRY SYSTEM TIME: 15:11:81 General Agent Information: HOME OFFICE AGT(GNERRE) 3220 TILLMAN DRIVE STE# P.O. BOX 866 BENSALEM, PA 19020 800-441-3978 (717)766-6326 17339 General Rgent's #: 002 18799 Policy#: 2 1426818 Base Plan: S29 Entry Date: 8/01/94 From Dept: CS User ID: CBROPHY Entry Time: 11:39:13 maaaa+mamnaaasanammmaxxax=a=aax-aaaa=aaxanx=a--aaaaaaaa=a=xxm=axa=anaaaaaaaaaa Log information for CS unit Inquiry: X Complaint: Contact: DARLEEN ISRAEL N/A ) Log Coda ) Dept: PS Reason: 813 OUPLICRTE/REISSUE OF POLICY Log Mode: PH Log Disposition Code: 103 Log Disposition Date: 8/01/94 Log Sequence #: . 1 Total.Requests: 5 Message Code: I (I.M,D, blank) Log completion code: 81 Log Completion Dated 8110194. Reopened Seq# F3=Exit F5=Rsfresh F6-Duplicate F7=PolIngry FB=RgtIngry F10=Switch F12=Prey F15=Critical MSG F17=Diary May 05 00 04:04p BANKERS 393-3715 p.4 MSG081FM AMERICAN TRAVELLERS CORPORATION REUtEW MS0081R9 DATE: 5/05/06 AGENCY/CUSTOMER SERVICE LOG/INQUIRY SYSTEM TIME: 15:11:89 RERKA*KENNETH E HOME OFFICE RGT(GNERRE) Policu#: 142681A General Agent's #: L13799 From Dept: CS User ID: CBROPHY Entry Date: 8/01/94 Entry Time: 11:39:13 a:sawaawas:awaa wsssasw w??wwwwsmssa=a=aa=aasa=aeaaaaaasaasmsswass:asawwaaaasaws INQUIRY/MEMO/RESPONSE INFORMRTIOM: I N Q U I R Y Inquiry Type 24 hour X 3 day Memo 002 To Dept: PS Print:. Y N Claim R: X Reply Responder ID: MKENOUS Anew Date: 080994 Time: 16:08:16 1 PLEASE SEND PH A POLICY C/O DARLENE ISRAEL 2 218 BOND RUE REISTERTOMN. MD 21136 3 - 4 5 6 F3=Exit FS=Refresh FG-Duplicate F7-PolIngrg FB=AgtIngry FlOwSwitch F12-Prev May 05 00 04:04p HANKERS 396-6715 " p.5 MSGOOIFM AMERICAN TRAVELLERS CORPORATION EDIT MSGOOIRB DATE: 5/05/00 RGENCY/CUSTOMER SERVICE LOG/INQUIRY SYSTEM TIME: 15:11:14 REAKA*KENNETH E HOME OFFICE AGT(GHERRE) Policu#: 1426818 - General Agent's #: 18799 From Dept: CS User ID: CBROPHY Entry Date: 8/01/94 Entry Time: 11:39:13 maaavaavvvvaaa==vs==eaaamaaavvaaaaavvaaavvaa:vvvvva:aamaaa¢avsassaaavaa¢aaavas INQUIRY/MEMO/RESPONSE INFORMATION: R E S P O N S E Inquiry Type 24 hour X 3 daU Memo 002 To Dept: PS Print: Y H Claim #: X Reply Responder ID: MKENDUS Anse Date: 080994 Time: 16:08:16 1 SNT SPEC POL TO PH C/O DARLENE ISRAEL 2 3 4 5 6 7 F3=Exit F5=Refresh F6=Duplicate F7=PolIngry F8=AgtIngry F10=Switch F12=Prev E 0 160 - KENNETH E REAKA 6 9 4 T DARLENEREAKAISRAEL ? i7 RESERVOIR ROAD Qe / ! n 'MECNANICSBURG PA 17055-8147 60 82 19' -1? yl1 .?i pav to lha2ii .,, 1 of ,'7 ,a....•_ A ?_i r -,+.-i.r ,+•t,.li 1 m^ I 1-a f3 Qa.'1211 1: ?Dl MHS/daw 6126/00 (porreap/reaka/affidavit) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX No. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff VS. IN CIVIL ACTION AMERICAN TRAVELERS LIFE INSURANCE COMPANY, : JURY TRIAL DEMANDED BY Defendant : JURY OF TWELVE PERSONS AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ERNEST IANNUCCI, being duly sworn according to law, deposes and states as follows: 1. Ernest lannucci is an individual who has reached majority and whose business address is c/o Conseco Senior Health Insurance Company, 3220 Tillman Drive, Suite 400, Bensalem, Pennsylvania 19020. 2. Ernest lannucci is presently employed by Conseco Services, LLC, but was formerly employed by American Travellers Life Insurance Company, the Defendant in this action. 3. Ernest lannucci has been continuously employed by Conseco Services, LLC, which is the administrative service company contracted for the administration of American Travellers Life Insurance Company business, or American Travellers Life Insurance Company since 1993. 4. In his then-capacity as Vice President, Chief Information Officer, of American Travellers Life Insurance Company in 1995, Ernest lannucci became familiar with the form of premium due notices that were sent to insureds to request payment of premiums. 5. The form of premium notices utilized by American Travellers Life Insurance Company changed in or about November, 1995. 6. Prior to November, 1995, the premium notices utilized by American Travellers Life Insurance Company did not specifically designate the type of insurance policy for which the requested premium was due, but as of November, 1995, and at all times thereafter, the premium notices utilized by American Travellers Life Insurance Company indicated the type of insurance policy for which a premium was being requested. 7. Attached hereto as Exhibit "A" is a premium due notice, bearing a billing date of September 7, 1996, and which was sent to one "Anna Redman of Peoria, Arizona." 8. The premium due notice sent to Anna Redman, and which is attached hereto as Exhibit "A," except for the name of the individual, the particular billing date, -2- the premium information and other personal information, is identical to each and every premium notice that would have been sent to Kenneth Reaka in connection with premiums coming due for the policy which is the subject for the within action for all periods subsequent to November, 1995. 9. American Travellers Life Insurance Company, now known as "Conseco Senior Health Insurance Company," no longer has in its possession copies of actual premium due notices sent to Kenneth Reaka, as they were computer generated and never archived. !'may"c%?? ?_t? r ERNEST IANNUCCI Sworn to and subscribed before me this 313" day of Ih01 , 2000. Notarial Seal Elizabeth Gem-Koenig, Notary Public Bensalem Twp., Bucks County My Commission Expires Nov. 25, 2002 -3- EXHIBIT "A" U4127/00 TtlU 11:43 FAX 3178173579 APR-27-00 TNU 9:48 AM AMERICAN. TRAVELLER. PAX No, 215 244 4998 ?....! AMERICAN TRAVELLERS LIFE INSURANCE COMPANY ATL ATL LIFE INSURANCE COMPANY IN Tx AND CA 4???SURA?'? Insurance Protection for: ANNA REDMAN ANNA REDMAN 6950 W PEORIA AVE LOT 223 PEORIA AZ 85345 Premium Due Notice For: ATL HOME HEALTH CARE P. 4 ®0o:i Billing Due Date:ltl 07.1996 your valuable will dcontinue, uninterrupted. if your received premium is P.S. By ®nra111n9 in our automatic oann'}pq,. time and money. You can begin saving now:by form on the other side and sending yovr?4 choose. *SEE REVERSE SIDE FOR MORE. 11?////? ?!• ?•l^K•??It.M f% s•\r'/.'?iiY it 3220 TIIlrnan Drive Banasasm PA +0020.1200 a14979 NOTICE OF PREMIUM DUE lvl I w......r t a..wr.Rwwnd " M...al..m leu:+a case .oe sear +R can save both authorization he 4&fnoun t you .,4 pleas roam the paver portion with your Payment ANNA REDMAN 4297.9 pWon woke any naeeson ww... AJANM GA 4501 A 4502 Date Due:-9/07/96 Make Check Payable To: American Travellers Life Ins Co. T,wph„ 01602 ) 0360 PO Due 770 5=9v 0379-05-4518 Bensalem PA 19020-0779 1 II I..l 'at 1...111.l..11.....1.111...11...L..ll W t r. M all n.oaaa1rxxxx00a0aaa7wonnoo04461600006&&&n0REDMAN000000007722 A?X-'l','-UU THU 539 AR AMEE1CAK. TWELLEE, FAX NU. Y15 "M 499b r. 5 rewwith pour re AUTOMATIC we would like to save you both TI E AND MONEY BANKING SrSTEM.._.PLUS .... It Coate esa an ` By having your premium automatically deducted from your account your valuable coverage stays in effect continuously! If you are travelling or should get sim your premium Nayniwttt will not be overlooked. IT'S EASY AND CONVENIENT A confirmation will be sent to you as soon as ww receive your authorization. SEEM tMAY• Take auvatttaye or the s ff2jaLLi<-jaNK--ING, KocA for your naCOrd<: PoliCYls) Billed C1IECKMt1. i 502334 F a'Yyw\11t ,JV\I hTw up vuW.li JW .- u...ww? WY.rrN r .nn rn.r. ?.v.m ....r. rnl q W. Y Yaan.. ?..?w nnw.nrnr•?V nJNONOYOw Tv., M. ? J"?`"?',M.Y '\?.4\\ \n'Y"wl . n PAY..... 5a3e.00 3429.00 5214.50 572.93 Annual Saving; 334.32 551.48 551.48 . Annual mode of payment 0 U, wSanam4ml "by 10 pay' ...... •,.•" ?yTMBpRAT7Ae1 na a rot1va11Mnu a rr al l PmraY row+t end -*,,- Y",-r naY >oc wmtlw w,V saeeum w I. r..•+' ••••`•~•? r.+'i .rr tire iHar?si ha e+n\nerpn '... ?.rc.:... aerount Dy lend 1600711110110 bi M,* Irrauronca Q01"My. vMeeam. r/.1 ylY•W.1 eaW\Crpa 1Hnaa in $Wa {eCUY11t w "Wr rn. aem. wP.n w....wl.f.,.w agree that I= tig"s in reapew M W, \rldl N 9 Yr \arr,\ r » n wvY .,...\n nn vw WA nlon\d Dore ,Vry ry me. This aug,.+tiN is p rorl,eir In of at final rCYYMa by nr. In wmlwe, ana ynpl y\Y .pp.\ny rwrrr. aWfl nolicc 1 aarao that you shall to nllly pmceed in honoring an) ........1-. 1 r...,-..r...% if PV &i h Pnl..nlali Of 111d??rY?p Yr what rap wig, or r+tlwut cauas and tpha111N In4naananY you 7hall be under no liabillty yyhattoavef even though such dronona rwula In the fMWtur4 of iMUyla"' a1011wTNaC,{.. \ pt. "? \r1Y rMnA: DATE %d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SANDRA M. REAKA, EXECUTRIX NO. 1999-4844 OF THE ESTATE OF KENNETH E. REAKA, DECEASED Plaintiff IN CIVIL ACTION VS. AMERICAN TRAVELERS LIFE JURY TRIAL DEMANDED BY INSURANCE COMPANY, JURY OF TWELVE PERSONS Defendant AFFIDAVIT I, CAROL BENNER, being duly sworn according to law, depose and state as follows: I am the Director of the Office of Health Care Quality for the State of Maryland. 2. As the Director of the Office of Health Care Quality for the State of Maryland, I am qualified and authorized to provide information regarding the state licensing of nursing care facilities and registration of domiciliaries care facilities. 3. Between the dates of December 3, 1996 and October 25, 1997, Vann Senior Living located at 12 Cedarhill Road, Randallstown, MD 21133, was registered by the State of Maryland as a Domiciliary Care Facility to provide only shelter, board and housekeeping services to its residents. 4. Skilled nursing care was, and is, outside the domiciliary program, and, accordingly, during the period from December 3, 1996 - October 25, 1997, Vann Senior Living was not licensed to provide skilled nursing care at its facility. Between the dates of December 3, 1996 and October 25, 1997, Vann Senior Living located at 12 Cedarhill Road, Randallstown, MD 21133, was not licensed by the State of Maryland to provide nursing care on an inpatient basis (skilled nursing, intermediate care or custodial care). 6444t CAROL BENNER Swom to and subscribed to me this 2 ,, Mday of June, 2000. Ndtary Public L. MY COMMISSION EXPIRES 03/01/04 w1. C/ ?vd 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SANDRA M. REAKA, Executrix : IN THE COURT OF COMMON PLEAS of the Estate of Kenneth : CUMBERLAND COUNTY, PENNSYLVANIA E. Reaka, Deceased, Plaintiff NO. 1999-4844 VS. : CIVIL ACTION - LAW AMERICAN TRAVELLERS, LIFE JURY TRIAL DEMANDED INSURANCE COMPANY, Defendant. VIDEO DEPOSITION OF: DARLENE LOUISE REAKA ISRAEL TAKEN BY: Defendant BEFORE: Deborah Zepp, Court Reporter-Notary Public DATE: February 10, 2000, 10:53 a.m. PLACE: Kollas & Kennedy 1104 Fernwood Avenue Camp Hill, Pennsylvania APPEARANCES: ORIGINAL KOLLAS & KENNEDY BY: JAMES W. KOLLAS, ESQUIRE FOR - PLAINTIFF SCOBLIONKO, SCOBLIONKO, MUIR, BARTHOLOMEW & MELMAN BY: MARK H. SCOBLIONKO ESQUIRE FOR - DEFENDANT ALSO PRESENT: WILLIAM C. KOLLAS, ESQUIRE DEBORAH ZEPP, COURT REPORTER (717) 528-8373 2 4 a 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEPONENT Darlene Israel INDEX EXAMIANTION By Mr. Scoblionko EXHIBITS PAGE 3 NO. DESCRIPTION IDENTIFIED MARKED 1 Computer printout of records from 21 21 American Travellers, re: Kenneth Reaka DEBORAH ZEPP, COURT REPORTER (717) 528-8373 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived. DARLENE LOUISE REAKA ISRAEL, called as a witness, having been duly sworn, was examined and testified as follows: EXAMINATION BY MR. SCOBLIONKO: Q Would you please state your full name and your home address? A Sure. It's Darlene Louise Reaka Israel. And my husband and I reside at 14102 Woodens Lane and that's Reisterstown, Maryland. Q And you are the daughter of the late -- or a daughter of the late Kenneth Reaka? A Yes. Q And you're Sandra's sister? A Yes. Q Would you please state your educational background? A Well, I graduated from high school in 1975. I went on to college. I went to Penn State University where I graduated with a B.S. in nursing in 1978. I then worked -- have been working as a nurse ever DEBORAH ZEPP, COURT REPORTER (717) 528-8373 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 since; but in 1988, I went back to school, went back to graduate school where I graduated with a masters in nursing at University of Pennsylvania. And I have been working as a pediatric nurse practitioner ever since. Q Okay. Your husband is a pediatrician? A That's correct. Q Okay. And how long have you been married? A We've been married six years. Q Okay. Now, prior to the time that you and your husband married, at any point between 1989 and the time that your hu -- that you and your husband married, did you live with your father? A No. Q It's my understanding from Sandra that at some point following the heart attack that your father had he came to Maryland to be with you; is that correct? A That's correct. Q All right. When was that heart attack? A In February of 194. Q And when was it that your father came to be with you? A It was shortly after that. I mean, he had his heart attack in February of 194 and it was -- he was up here for about two weeks and then we moved him down to Maryland -- Q Okay. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 5 l 1 A -- to have his surgery. 2 Q So it would have been in February or March? 3 A That's correct. 4 Q Of 1994? 5 A Right. 6 Q Now, you say that you moved him down to have his 7 surgery. Did he have bypass surgery? 8 A He did, yes. 9 Q And where was that done? 10 A At Sinai Hospital. 11 Q And that's in Baltimore? 12 A That's correct. 13 Q At that particular time, what was your father's 14 mental condition as you perceived it? 15 A He was -- he -- he was alert. He was very aware of 16 what was going on. Things were explained to him clearly, and 17 he agreed to be moved down to Maryland. 18 Q Okay. When -- when he came down to Maryland at a 19 that particular point -- 20 A Um-hum. u 21 Q -- was your father continuing to take care of his 22 various personal financial affairs? r 23 A Just a little bit because when he had -- what had 24 happened is he had gone into the hospital. re 25 He -- from -- right from Pennsylvania to Maryland . He had his k _ DEBORAH ZEPP, COURT REPORTER ' (717) 528-8373 6 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 surgery done and then he came to live with my husband and myself and he was recuperating from bypass surgery. So he was doing a little bit. And I was -- he was attempting to write some checks. But I at that time had started to help him. Q Okay. Prior to the time that your father had his heart attack, was your father taking care of his personal financial affairs? A That's correct. Q Prior to the time that your father came to Maryland, did you know anything about this American Travellers policy that he had purchased in 1989? A No. Q You didn't know it existed? A No. Q All right. Now -- so your father came to Maryland in February, March of 1994. He had his surgery. After the surgery, he moved into the house with you and your husband? A That's correct. Q And at that particular point I think you said you were starting to help him pay his bills. A That's right. Q How did you go about doing that? Did you become a signer on his checking account? Did you maintain your own account? How'd you do that? DEBORAH ZEPP, COURT REPORTER (717) 528-8373 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A In the beginning, I had gotten power of attorney and -- so I could be able to help him if anything were to happen to him along the way. What we would do is he would s -- he would write the checks and I was sitting there with him trying to get some sort of idea of where his finances were. Eventually I just started to write the checks for him. Q Were -- A I -- I'm not remembering, though, the exact time frame. Q Well -- A It was soon after that. It was pretty soon after that that I pretty much took over his affairs. Q Attached to your Amended Complaint -- A Um-hum. Q -- there are copies of some checks. A Um-hum. Q And let -- let's just deal with these checks that are attached to the Amended Complaint. Are all those checks signed by you? A That's correct. Q Is all the handwriting other than your signature that appears on those checks your handwriting? A Yes, yes. Q Okay. Now, those checks have the account listed as DEBORAH 2EPP, COURT REPORTER (717) 528-8373 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your father's name and your name if I'm reading it correctly. A That's right, yes. Q Do you remember when -- well, strike. Was that the same account that was originally in the name of your father only or is this a separate account that was set up? A I'm not understanding. Can you repeat that? Q At some point -- A Um-hum. Q -- your father had his own checking account -- A Right, yes. Q -- which -- and this is a question -- that -- that account was in your father's name. A That's right. Q Okay. I'm asking you if this account (indicated) which lists your name and his name is the same account or if this is a new account that you opened with two names on it. A This is not a new account. We just added my name to it. Q Okay. That -- that's my question. A Right. Q Now, you used the term a few minutes ago, you said something to the effect that you got a power of attorney. A That's correct. Q Now, do you really mean a power of attorney as distinguished from just a signature card where you became a DEBORAH ZEPP, COURT REPORTER (717) 528-8373 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 co-signer on the account? A No. Power of attorney meaning if something were to happen to him, if he were incapacitated, I would be responsible for his care. Q All right. Now, when was that power of attorney prepared? A I don't remember. Q Do you have a copy of that power of attorney any longer? A I do. It's not with me though, no. Q Okay. Was that power of attorney prepared, if you recall, before or after your father came down to Maryland? A After. Q And prior to that time, to the best of your knowledge, you never had any power of attorney? A Right, never. MR. SCOBLIONKO: I am making a request that I get a copy of that power of attorney, please. MR. KOLLAS: (Nodded affirmatively.) THE WITNESS: (Nodded affirmatively.) BY MR. SCOBLIONKO: Q Whose idea was it first of all to have a power of attorney prepared? A During the time, this six month period, that he had been living with me, he started going to a senior center. It DEBORAH ZEPP, COURT REPORTER (717) 528-8373 L 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was called senior Connections. And there was a social worker who was working with me and helping me with my father. She had suggested that I do this and her name is Zondra Quartner. Q And I apologize if this is obvious, but why was it that you as opposed to any of the other siblings were chosen to be the recipient of the power of attorney? A Because he was down in our care. Q Okay. Was it your plan when he came down to Maryland that he would stay with you for the duration of his life? A No. Q What was your plan when he originally came down to Maryland? A Our plan was to help him recuperate from his surgery and to have him go home. Q Okay. From the point where your father came down in 1994 for his surgery, was your father ever able to return to his home again? A No. Q Your sister said that there was at least one occasion and possibly more where you took your father back to visit his home. A Right. Q Is that correct? DEBORAH ZEPP, COURT REPORTER (717) 528-8373 x A 11 4 F 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How many times did that happen approximately? A I think twice. Q But your father didn't stay overnight? A No. He could not. Q Okay. Now, in -- after the surgery -- A Do you need this (indicated)? Q Oh, yes, thanks. Sorry. After the heart surgery, your father was with you and your husband. A Um-hum. Q And I gather from the Complaint -- or the Amended complaint that your father fell and broke a hip on May the 4th of 1994. A That's correct. Q Okay. And did the fall -- MR. KOLLAS: (Indicated). THE WITNESS: Thank you. BY MR. SCOBLIONKO: Q Did the fall occur at your home? A Yes. Q And your father was admitted to Northwest Hospital and then h e was moved I guess about two weeks later -- A (Nodded affirmatively.) Q -- from Northwest to Sinai? A That's correct. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Well, first of all, why was he moved from Northwest to Sinai? A He had had his surgery at Northwest, and he went to Sinai for rehabilitation. Q I'm sorry, we're -- we're not talking about the heart surgery now, right? A No, this is his hip. Q Okay. He had surgery -- A Right. Q -- on the hip. A Right. Q What did they do, put in an artificial hip? A They -- yeah -- well, they didn't do an artificial hip. They put a -- I want to say a rod. Q Okay. All right. So he had some orthopaedic treatment -- A Right, yes. Q -- in connection with the hip. A Right. Q He stayed there and then he was moved to Sinai, according to this, on May the 19th. A Right. Q Why was he moved to Sinai? A For rehabilitation. They have a rehab center at Sinai. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. So your father received some sort of rehab or physical therapy for a period of time -- A Right. Q -- at Sinai? A That's correct. Q Okay. And then according to the Amended Complaint, on June the 9th, or sometime around there, of 1994, he was moved from Sinai to Cherrywood Healthcare and Rehab? A That's correct. Q Now, why -- why was your father moved to Cherrywood? A What they were able to do at Sinai -- what I want to say is they could only do Bo much for him; and he needed a little bit more care so that's why they sent him to Cherrywood. Q Okay. What kind of care did he need? A He needed more rehab. I -- I'm assuming because of the rules of Sinai Rehab he -- he was only allowed so much care there but he still needed a little bit more rehab and that's why he went to Cherrywood. Q Do you know who the doctor was that wrote the orders to send him to Cherrywood? A I'm not remembering. Q Okay. Was it an orthopaedist or some such special -- DEBORAH ZEPP, COURT REPORTER (717) 528-8373 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A She's a reha -- it was a woman, a rehab specialist. Q Okay. At that particular time, June of 194, what was your father's mental condition as you perceived it? A He was slowing down. It was hard for him to answer questions at times. His memory seemed to be failing him at times. Q At or about this time, did you begin to pay all of your father's bills? A I started paying probably all of his bills when he -- I think when he went in for his hip surgery. Q Okay. So that would have been in May of 1994? A Right. That's right. Q And did you continue that process, that is paying all of your father's bills, up until the time of his demise? A That's correct. Q Did you discuss with any of your siblings in advance any of your fa -- your father's hospital or nursing home admissions? A I was constantly in conversation with them, yes, so I -- from what I'm remembering, I -- we had talked about his care and what was happening with him. Q Okay. Was Cherrywood a facility that was known to you before you admitted your father there? A No. Well, I live in the town so I knew it was there but I've -- and I had never had an experience with DEBORAH ZEPP, COURT REPORTER (717) 528-8373 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Cherrywood before, no. Q Did you ever make a determination as to whether or not Cherrywood was a licensed nursing home facility? A I did not look into that myself. The hospital, Sinai, had helped me with that. Q Did you receive specific information from Sinai that Cherrywood was licensed by the state of Maryland? A No, I never received that information. Q Okay. Do you have any information one way or another at this time as to whether or not Cherrywood was a licensed facility at that time? A I did not have anything personally, no. Q Okay. Now, by the way -- and I'm -- I'm jumping ahead -- A Um-hum. Q -- when was -- when was the first time that you learned about the American Travellers policy that brings us here today? A Recently. Q Recently? A Recently when my sister said that she had found a policy. Q Okay. A I don't remember the time span; but it's -- Q All right. DEBORAH 2EPP, COURT REPORTER (717) 528-8373 16 a F 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A -- it's been current. Q Okay. You didn't know anything about it -- A No, no. Q -- before that time? A No. Q Did you pay any premiums to American Travellers? A I did not know that there was not a nursing home Policy. I would pay premiums but they would come in as -- Q I'm sorry, let me back up. You just really confused me. I don't -- A I'm sorry. Q -- quite know what you said. A Okay. Q You said I did not know -- A No. Q -- that there was not a nursing -- A That there was -- no, I didn't know there was -- that there was a nursing home policy out there. Q Okay. A The premiums would come in and I would pay the premiums. What was written on the invoice was Travellers Life Insurance. Q When you say what was written on the premium, that was the name of the company? A Right. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 17 e i 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I Q Okay. '• A So I had no -- I had no idea that there was any sort of nursing home policy. Q Okay. Now, when -- when you started paying the premiums -- A Um-hum. Q -- was that as far back as 1994? A I don't remember. Q All right. Do you have copies of the premiums you received from American Travellers? A My sister has all of that information. Q Oh, your sister has all that -- A Yes. Q -- information? A Um-hum. Q Okay. How about -- how about the checks that were written on your father's account -- A Um-hum. Q -- from the time that you took over going back to 1994? 3 A Um-hum. She should have all of that information. MR. SCOBLIONKO: Okay. I am making a request that I receive copies of all the canceled checks from on the Reaka account going back to January 1 of 1994 through and including the time of his death. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I'm requesting that I receive copies of the American Travellerst premiums, the bills, that were submitted from January 1 of 1994 through and including the time of his death, please. BY NR. SCOBLIONKO: Q Okay. Now, did your father have any other insurance of any type that you paid bills for? Anything, homeowners, car. A He had the car -- no, forget that. Ha had -- he had his house. He had life insurance policies. There was car insurance. And I would have to look and see what else I was -- I paid for; but I -- Do you -- A -- took care of all of his finances, yes. Q Do you remember how many life insurance policies there were? A Not without looking, no. Q Okay. Was it more than one? A Yes. Q Did you -- did you ever look at those policies before he died? A Just to see if they were there, yes. Q When you say just to see if they were there -- A He had -- we had a strongbox; and he had his policies in -- in those boxes. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And where was that strongbox? A That was with me at the time. Q And was this American Travellers policy in the strongbox? A I did not see it in the box, no. Q So your father brought a strongbox -- A Um-hum. Q -- with him -- A Um-hum. Q -- when he came to you in 1994; is that right? A That's correct. Q And you reviewed the policies that were in that strongbox? A That's correct. Q Okay. Now, did you ever ask your father what the American Travellers policy was? A When my husband and I sat down with him to talk to him about his assets, he told me at that time that everything that we had talked about was a life insurance policy. Q I'm not following. I'm sorry. That everything -- A Um-hum. Q -- that you talked about -- did your father mention the American Travellers policy to you? A I don't remember him mentioning that, no. Q Okay. But you knew that he had an American DEBORAH ZEPP, COURT REPORTER (717) 528-8373 20 1 Travellers policy because you were paying premiums -- 2 A I paid them -- 3 Q -- right? 4 A -- right. 5 Q Did you ever ask your sister anything about that, 6 whether she had any information about it? 7 A No, no. 8 Q Okay. Did you ever ask American Travellers any 9 questions about the policy before your father died? 10 A No. 11 Q Why not? 12 A Like I said, my father had talked to my husband and 13 I about his assets and what he had told us was all the assets 14 that we talked about were life insurance policies. 15 Q Okay. 16 A So I had no reason at that time to feel like I 17 needed to investigate that a little bit further. 18 Q All right. Did -- did you ever request a copy of 19 the policy from American Travellers? 20 A I did not, no. 21 Q Okay. You're sure? 22 A Yes. 23 Q Okay. 24 A Yes. 25 Q Now -- well, let me just show you this if I might. v? S DEBORAH ZEPP, COURT REPORTER (717) 528-8373 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCOBLIONKO: And we will mark this one as an exhibit. Let's go off the record. (Off video at 11:17 a.m.) (Israel Deposition Exhibit No. 1 was marked.) (on video at 11:20 a.m.) BY MR. SCOBLIONKO: Q Thank you. I'm sorry. We have marked a single sheet of paper as Israel Exhibit No. 1. I will represent to you that this is a computer printout from the records, the files, of American Travellers. I will direct your attention to the first entry on this particular page and it's an entry of August the 9th of 1994. And what that is is it's an entry that says that according to the records of American Travellers pursuant to a request from you back on August the 9th of 1994 American Travellers sent a copy of the policy in question to you and that that was as a result I believe of a telephone call. And just ac -- accept my representation rightly or wrongly -- A Um-hum. Q -- that a representative from the company is going to testify that that's what that entry means. A Okay. Q Okay. You -- you have no recollection -- A I've -- DEBORAH ZEPP, COURT REPORTER (717) 528-8373 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q -- of any such -- A No. Q -- thing ever occurring? A No, I do not. No. Q Okay. A No. Q And to the best of your knowledge, you never received a copy -- A No. Q -- of this policy? A No. Q How about your husband, do you know whether or not -- A (Shook head negatively.) Q -- he ever called the company and requested a copy of the policy on your -- A No. Q -- behalf? A No. Q Okay. All right. So I think we can agree, can we not, that on August the 9th of 1994 -- A Um-hum. Q -- your father was living with you. A Right. Q Okay. Because according to the Amended Complaint, DEBORAH ZEPP, COURT REPORTER (717) 528-8373 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your father was with you between June 22nd of 1994 and September the 1st of 1994. A That's correct. Q All right. Now, on September the 1st of 1994, your father was admitted to a facility known as -- and I may not pronounce it correctly -- Elesy Manor? A That's correct. Q Okay. And that's in Baltimore? A Right. Q Now, first of all, why was your father readmitted to a nursing home at that time? A He -- he still was not able to take care of himself. And -- Q Are we talking mentally or physically? A Physically and a little mentally. He wasn't able to prepare his meals or -- he could get himself dressed but he wouldn't be able to do a lot of the other daily sort of activities. And he was -- he was using a walker at that time so he still required care and somebody being in the home with him. My husband and I were getting ready to have a baby and it -- it was in our best interest and his best interes -- interest that he be living in another nursing home facility. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Now, why did he not go back to Cherrywood? A Cherrywood was a continuation of his rehab so it's a little bit more sophisticated than what Elesy Manor would be doing for him. Q What was Elesy Manor doing for him? A There was somebody in the house 24 hours a day. They would be cooking his meals, making his bed, helping him get dressed if he needed to. Q Okay. Were the difficulties that your father was experiencing at this time related to his hip? A Hip and I think a little mental. He was -- he was forgetful at times. Q Okay. Well, did the problem with his hip have anything to do with his admission to Elesy Manor? A I'm sorry, repeat that, please. Q Did the problem with your father's hip have anything to do with his admission to Elesy Manor? A Yes. He -- I mean, he needed continuation of care. He couldn't stay in our home any longer. Q Was your home one floor or two? A It was one. Q It was one? A Right. Q And -- and why couldn't he stay in your home? A We were getting ready to have a baby. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 Q Oh, okay. But -- all right. Now, -- did -- did you in fact have a baby? A Yes. Q And when was that? A December. Q Of 1994? A That's correct. Q All right. Now, your father -- your father stayed in Elesy Manor from September 1 of 194 till August the 29th of 195 so he was there virtually a full year; is that -- A That's right. Q -- that right? A Um-hum. Q Okay. And at that point he suffered a fracture of his acetabulum and ended up back in Sinai Hospital; is that -- A That's correct -- Q Okay. A -- yes. Q And he had surgery on September the 6th. How did your father fracture the acetabulum? A He said he lost his balance and he fell. Q Okay. And at that point did they do a total hip? What did they do? A Well, it's on his medical records but it was a pretty serious fall. The implant that he had from his DEBORAH ZEPP, COURT REPORTER (717) 528-8373 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previous surgery had basically gone up into his pelvic cavity. Q Okay. And then he went from Sinai to Levindale Hebrew Geriatric Center and Hospital. Now, what -- why -- why did he go there once again as opposed to going back to Cherrydale? A To Cherrywood? Q Cherrywood. I'm sorry. A He went from Sinai to Levindale because they -- Sinai repaired his hip but the geriatric center was also again a rehab facility, a nursing home and a rehab facility; but he -- he still needed continuation of care. Q Okay. Now -- A And Sinai is an -- Q Ism sorry. A -- acute care facility. Q Do you know one way or another whether Elesy and/or Levindale -- A Um-hum. Q -- were licensed nursing home facilities at the time that your father was admitted? A I don It know that. Q Okay. Was your father admitted to Levindale at the instructions of a physician? A That's correct. Q Do you know who that was? DEBORAH 2EPP, COURT REPORTER (717) 528-8373 27 1 2 3 4 5 6 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No, I don't remember. Q All right. Now -- let's see. Oh. Did your father receive any Medicare benefits for Cherrywood? A He did but I'm not re -- I don't remember the amount, no. Q Okay. Did your father receive Medicare benefits for Elesy Manor? A No. Q Do you know why not? A No, I don't. Q Did your father apply for Medicare benefits for Elesy Manor? Presumably through you or elsewhere. A No. Q No, he didn't apply? A He did not, no. Q Do you know why? A No, I don't. Q Same question with respect to Levindale. A Um-hum. Q Did your father receive any Medicare benefits? A He did. Q He did? A Yes, he did. Q Okay. A But I don't remember the amount. He was in a rehab DEBORAH ZEPP, COURT REPORTER (717) 528-8373 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 situation at Levindale so they were -- I think he fell under the -- excuse me, the definition for having Medicare benefits. Q Okay. Do you know whether the reason he didn't receive Medicare at Elesy Manor was because he didn't fit under a rehab -- A I don't know that -- Q -- definition? A -- no. Q You don't know? A I don't know that, no. Q Okay. Your father stayed at Levindale until the end of November of 1995 and he then went to Autumn House and he stayed at Autumn House for about a year until December the 2nd of 1996. A That's correct. Q Okay. Why was he moved from Levindale to Autumn House? A They were neglecting him. Q Levindale was neglecting him? A No, not -- oh, I'm sorry, can you repeat that, please? From Autumn House to -- Q I asked you why he moved from Levindale -- A Oh, I'm sorry. Q -- to Autumn House. A Oh, okay. The reason why he went from Levindale to DEBORAH ZEPP, COURT REPORTER (717) 528-8373 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Autumn House is because his care was a little bit more involved. He could -- he wasn't independent anymore. He couldn't go back to Elesy Manor. Q Okay. And -- and Autumn House was a facility of the -- of the level presumably that Elesy Manor was? A That's correct. Q Okay. Did he receive Medicare benefits at Autumn House? A No. Q Why not? Do you know? A No, I don't know that. Q Did -- did he -- did you apply for Medicare benefits? A No, no. Q Do you know if Autumn House was a licensed facility? A It was licensed, yeah. Q How do you know that? A Because what I started to tell you is we had moved him out of Autumn House after a year because they were neglecting him. And when I pursued this with the state, I found out that they were licensed. Q Okay. And then you moved him from Autumn House to Vann Senior Living? A That's right. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And did -- how long did he stay in Vann Senior Living? A From December until his death. Q Okay. That was October the 25th of 1997? A That's correct. Q Did your father expire while he was still a patient at Vann? A That's correct. Q All right. Now, what -- what necessitated the confinement at Vann Senior Living? A What -- Ism sorry, can you -- Q Why was he there? A Why was he there? Q Yeah. A Well, we had moved him from Autumn House to Vann because th ey were neglecting him at Autumn House. His care at that time -- he was starting to deteriorate. Q Mentally you mean? A Physically and -- and mentally. He was -- he was forgetful, yes. Q Okay. Was he receiving any therapy at Vann in connection with either his hip or his acetabulum? A He would -- periodically he would have physical therapy at Vann, come into the facility to work with him and then the physical therapy would end. l DEBORAH ZEPP, COURT REPORTER (717) 528-8373 31 1 Q Okay. Well, why didn't you bring him back to your 2 home? 3 A I couldn't take care of him anymore. It was too 4 involved. 5 Q And why was that? 6 A I had a sm -- a small child; and I think to have to 7 do dail y care on your father is pretty tough. 8 Q Wha -- what was -- what was the type of daily care 9 that he required from the point where he went to Vann until 10 the time of his death? 11 A He was incontinent at times. He would need help 12 with showering, somebody fixing his meals, somebody helping 13 him get dressed. Near the end, he was bedridden. 14 Q What was the reason he was bedridden? 15 A He -- he just wasted away. 16 Q okay. Was there any particular disease process? 17 A No, they -- they never found anything. He just 18 unfortunately -- 19 Q Right. 20 A -- that was his problem. 21 Q Did -- did he get any Medicare benefits for the 22 stay at Vann? 23 A I don't remember. 24 Q Do you remember whether or not Medicare 25 benefits -- pardon me -- were applied for? DEBORAH ZEPP, COURT REPORTER (717) 528-8373 32 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'm not remembering that. Q Did you ever make a determination one way or another as to whether Vann -- it's V-a-n-n by the way -- was a licensed facility? A I remember her telling me she was licensed, and this social worker that I had been working with had also told me that. I never saw her license, but. Q Okay. Did you ever see the licenses of any of the facilities where your father was a resident? A I never saw them, no -- Q All right. A -- no. Q But in -- in part the reason I'm asking the -- well, let me back up. One question I forgot to ask you. Is -- is -- is Vann still in business? A Yes. Q It still exists? A Yes. Q How about the other facilities where he was confined, are they still in existence? A Elesy Manor is. Autumn House, when I spoke to the state, she was pulling their license. Q Okay. And how about Cherry -- Cherrywood? A Cherrywood is still. Q Okay. According to the information that I have DEBORAH ZEPP, COURT REPORTER (717) 528-8373 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which the company obtained, Vann was not a licensed facility at the time that your father was a patient there. And in part, I'm just going over the question that I already asked you. A Um-hum. Q Do you have any other information other than what somebody told you which is to the contrary that would establish -- A Um-hum. Q -- that, you know, it was a licensed facility? A No, she had told me that it was licensed. MR. SCOBLIONKO: Okay. Let's go off the record. (Off video at 11:38 a.m.) (On video at 11:42 a.m.) BY MR. SCOBLIONKO: Q As best as you can recall, when would you say that your father first became cognatively impaired? A It was early when he first came to us. I -- he would have a hard time remembering names. It -- it was pretty early right after his surgery, the first surgery. Q What -- when your father was in the nursing homes, was he examined on a regular basis by an attending physician? A He did have a physician, yes. Q In each of the nursing homes? A Not on site, no. He would -- he would go for his DEBORAH ZEPP, COURT REPORTER (717) 528-8373 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 checkups and such. Q Was he -- was he checked up while he was in each of the nursing homes? A Yes. Q By an attending physician? A Yes. Q And -- and how -- how often was he -- was he checked by an attending physician? A Well, definitely for yearly checkups. But if there were any other incidents that occurred, if he had falls and he was having periodic falls, that didn't require that he be hospitalized but he would see a physician. And without looking at his medical record, I don't remember those other times but it was -- Q Well -- A -- more than a year. Q Excuse me. It was more than a year? A Right. Q You mean more than once a year? A Right, yes. Q Was he examined monthly by an attending physician while he was in -- A It was not monthly, no. Q It was not monthly? A No. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 35 1 Q And you're sure of that? 2 A Yes. 3 Q Okay. Did he -- did -- did your father receive 4 while he was in a nursing home certifications of care that was 5 required to be given in the mo -- in the nursing home? 6 A I don't understand what you mean by certifications. 7 Q Well, I'm -- I'm really reading from the policy 8 provision. It says, Your attending physician must certify as 9 to the degree of care needed. 10 A Um-hum. 11 Q And my question is, Did your father receive regular 12 certifications from an attending physician as to the degree of 13 care that was needed in each of the nursing homes? 14 A He did have a physician taking care of him; and 15 again, I -- I don't know without looking at the medical 16 records what he stated. 17 Q Okay. And where -- where are all of the medical 18 records? 19 A Most of his medical records are at Sinai Hospital. 20 Q Would his medical records -- you say most of them 21 are at Sinai Hospital. You mean even for things like 22 Cherrywood and Elesy and -- 23 A Well, there's a -- the major medical records are at 24 Sinai. The other facilities do have their own records. 25 MR. SCOBLIONKO: Okay. What I'm requesting is that DEBORAH ZEPP, COURT REPORTER (717) 528-8373 36 ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I be provided with any documents of any type, manner or description between January of 1994 and the date of Mr. Reaka's expiration that reflect that Mr. Reaka was examined by an attending physician and/or reflect -- and I'm talking about while Mr. Reaka was confined in a nursing home -- and will certify as to the degree of care needed for Mr. Reaka while he was confined in nursing homes. To the extent that you do not have such documents, I would like the names and addresses of any physicians that you believe have such documents and I will then request them either by voluntary production or by subpoena. And -- okay. Let's go off the record. (Off video at 11:48 a.m.) (On video at 11:53 a.m.) Q You mentioned earlier that you had seen some life insurance policies in a strongbox that your father had. A (Nodded affirmatively.) Q Do you remember whether or not those policies were issued through a particular agent? A There was an agent, but I'm not recalling his name now. Q Do you know whether or not the agent on the other policies was Joan Flinchbaugh, F-1-i-n-c-h-b-a-u-g-h? A No, I don't know that name. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 37 f 7 8 9 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L Q Okay. So you donit know that name at all -- A No. Q -- so you don't know one way -- A No. Q -- or another? A No. Q Okay. The other life insurance policies, where are those if they're anywhere? Have they been surrendered to the companies or -- A My sister is taking care of them, yes. Q Okay. Do you know whether she still has the policies? A i don't know that. Q Okay. When -- there -- there did come a point in time that you learned about the American Travellers policy; is that correct? A Um-hum. Q Yes? Yes? A Well currently, yes. Um-hum. Q Yes? A Yes. Q And did -- did you ever review the policy? A No. Q Okay. So even as of today you've never looked through the policy? DEBORAH ZEPP, COURT REPORTER (717) 528-8373 38 a F fi 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Just briefly when we were sitting here this morning. Q Okay. Your sister has brought in -- and we're going to mark it as an exhibit -- the original of the policy that I assume is the document that she found in your father's bureau. A Um-hum. Q Prior to today, have you ever seen this document? A No. MR. SCOBLIONKO: I don't have any other questions. (The video deposition concluded at 11:56 a.m.) DEBORAH ZEPP, COURT REPORTER (717) 528-8373 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ) SS. i, DEBORAH ZEPP, a Court Reporter-Notary Public, authorized to administer oaths and take depositions in the trial of causes, and having an office in York Springs, Pennsylvania, do hereby certify that the foregoing is the testimony of DARLENE LOUISE REAKA ISRAEL, taken by the defendant at Kollas & Kennedy, 1104 Fernwood Avenue, Camp Hill, Pennsylvania. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down in stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 26th day of May, 2000. 4 e rah Ze Notary Public My commission expires on December 31, 001. DEBORAH ZEPP, COURT REPORTER (717) 528-8373 .?+ vac roiicy 142681A REAKA*KENNETH E - -- ""° ^va"Ioie Sx M DOB 3/26/2( Dependent /Spouse: Policy Messages Seg/Desk Date Message text 000 PHSMK 080994 SNT SPEC POL TO PH C/O DARLEEN ISRAEL PER CS REQ 001 CS RS 073196 Policyholder social security number 576241521 added FMO12 002 CS/ST 022698 SNT NH-1 &NH-2 CL FRM TO PH ADDR 003 BNKRS 112498 MAIL RECEIVED - MICROFILM s 112398 2347 0305 004 BNKRS 112498 MULTIPLE 11/16/98 TO 11/16/98 005 BNKRS 010799 MAIL RECEIVED - MICROFILM . 010699 2864 0038 006 BNKRS 010799 PH 12/15/98 TO 12/15/98 007 PC/MA 082799 TEMP CHGED STAT. TO 1 & A TO ALLOW POL ORDERING 008 PHSAA 092999 RCVD DTH CERT;DOD 102597;PREP FOR REFUND 009 AALEX 093099 GLOBAL CANCELLATION - BY USER-AALEXANDER 1 - OLD STATUS 010 PC/AA 093099 WRONG PAYEE ON REFUND 9/29;SENT VOID AND MANUAL REISSUE TO 011 093099 ACCTG *REFND -092999 *REFND -092999 i ADDRESS EXHIT h lY ti'' ?, ': wxw?m•eoWiu.io nuo•raamm ax wuo? '??+'?rmairxxuw.urirnr m vo?s?mn .. .von ims nv SANDRA M. REAKA, : IN TI IE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE OF : CUMBERLAND COUNTY, PENNSYLVANIA KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant NO. 1999-4844 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 3 d day of Zp? (, upon consideration of the attached Petition for Approval of Compromise and Settlement, it is hereby ordered and approved that the above-listed matter be settled as set forth in said petition and the Plaintiff, Sandra M. Reaka, Executrix of the Estate of Kenneth E. Reaka, is authorized to execute a full and complete Release with respect thereto and to cause the within action to be discontinued, with prejudice. BYT EC U I]1 1 i 1 es W. Kollas, Esq. he Plaintiff 1. Scoblionko, Esq. Defendant 0/- Y-0/ RP 1? ;L ti I Previous Image Refilmed to Correct possible Error SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETII E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 1999-4844 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 3 d day of J?^j} 20D upon consideration of the attached Petition for Approval of Compromise and Settlement, it is hereby ordered and approved that the above-listed matter be settled as set forth in said petition and the Plaintiff, Sandra M. Reaka, Executrix of the Estate of Kenneth E. Reaka, is authorized to execute a full and complete Release with respect thereto and to cause the within action to be discontinued, with prejudice. BY THE COU James W. Kollas, Esq. For the Plaintiff Mark H. Scoblionko, Esq. For the Defendant Cq'L? 1171?u 0/- y-0/ RP SANDRA M. REAKA, : IN THE COURT OF COMMON PLEAS OF EXECUTRIX OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant NO. 1999-4844 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION FOR APPROVAL OF COMPROMISE AND SETTLEMENT Plaintiff and Petitioner herein, Sandra M. Reaka, Executrix of the Estate of Kenneth E. Reaka, Deceased, by and through her attorneys KOLLAS AND KENNEDY, hereby makes the following Petition for Approval of Compromise and Settlement to this Honorable Court for entry of an order allowing settlement with defendant, American Travelers Life Insurance Company, and in support thereof avers the following: This action was instituted by a Complaint filed on August 11, 1999, and concerned monies allegedly owed Plaintiff, as Executrix, through an insurance policy issued by Defendant. 2. The last will and testament of Kenneth E. Reaka, decedent, was admitted to probate on February 4, 1998. A true and correct copy of the will and corresponding grant of letters is attached hereto as Exhibit "A." 3. Decedent's daughter, Sandra M. Reaka, Plaintiff, was granted Letters Testamentary for the estate of decedent Kenneth E. Reaka on February 4, 1998, by the Register of Wills of Cumberland County, Pennsylvania, and is the Executrix of said estate. See Exhibit A. 4. The last will and testament of Kenneth E. Reaka, decedent, provides, in pertinent part: ITEM FIVE: In addition to such powers as my Personal Representative may have by law, I authorize her with respect to any and all property at any time constituting part of my estate, to hold and retain such property, to sell and dispose of the same at public sale, at such prices and in such terms as my Personal Representative shall deem proper; to borrow money and to pledge such property as security therefore; to invest and reinvest in any kind of property, real and personal, without limitation to the class of investments in which my Personal Representative may be authorized by statute or rule of court; to exercise any option or privilege to convert securities belonging to my estate personally or by proxy; to, become a party to any reorganization, consolidation, merger, or other capital readjustment; to cause securities of my estate to be registered in the name of the nominee of the Personal Representative; to employ a custodian or agent; to manage real property belonging to my estate; to lease any such real property regardless of the fact that the term of any such lease may extend beyond the period of administration of my estate; to borrow money for the benefit of my estate and to pledge or mortgage any property so held as security thereof; to make partition, division, or distribution of my estate in kind or in cash or partly in kind and partly in cash; and to do all other acts which in his discretion may be necessary or appropriate for the proper and advantageous management, investment, and distribution of my estate, and no other person dealing with my Personal Representative who shall purchase or lend money to my Personal Representative shall be under any obligation to inquire into the propriety or validity of such sale or loan. 5. Plaintiffs suit sought relief under theories of breach of contract, breach of covenant of good faith and fair dealing, misrepresentation, violation of the Unfair Trade Practices and Consumer Protection Law, and violation of 42 PA.C.S.A. §8371. 6. Defendant denied liability to the above-referenced theories and raised numerous arguments in its defense. Counsel for Plaintiff has fully investigated the case, attended depositions, pursued sufficient discovery, has made and responded to motions, and has prepared this case for trial; however, counsel is of the professional opinion that settlement of this matter is in order. 8. Plaintiff is authorized to settle this matter as evidenced by the last will and testament of Kenneth E. Reaka, decedent. 9. Pursuant to 20 Pa.C.S.A. §3323, Plaintiff seeks approval for compromise and settlement of this matter. 10. Counsel for Plaintiff, Petitioner herein, and counsel for Defendant have agreed that the sum of $20,000.00 is sufficient to settle this matter. A true and correct copy of correspondence confirming this settlement is attached hereto as Exhibit "B." 11. The settlement is reasonably commensurate, on a compromised basis, with damages associated with premium payments for the policy in question. 12. The settlement avoids further litigation expense. 13. The settlement provides an early resolution to this matter so that the proceeds of the settlement can be used to benefit the estate. 14. The settlement avoids further risk of an unfavorable outcome. 15. Kollas and Kennedy, counsel for Plaintiff, Petitioner herein, is entitled to collect 25% of any settlement prior to trial and is, therefore, entitled to collect $5,000.00 as its fee for representing the Plainitff in this matter. A true and correct copy of a New Client Relationship letter, which sets forth this understanding, is attached hereto as Exhibit "C." 16. The Estate of Kenneth E. Reaka will collect $15,000.00 from settlement of this matter. 17. Plaintiff, Petitioner herein, believes this settlement to be fair and in the best interest of the estate. WHEREFORE, Plaintiff, Petitioner herein, respectfully requests that this Honorable Court approve compromise and settlement of this matter for the amount stated above. Respectfully submitted: Kollas & Kennedy /?' 0., WO? ames W. Kollas, Esq. Supreme Ct ID No. 81959 1104 Fernwood Avenue Camp Hill, PA 17011 (717) 731-1600 Attorney for Plaintiff/Petitioner DATE: / 2/2 6/n 4 Register of Wills of CUMBERLAND County, Pennsylvania Certificate of Grant of Letters No. 1998-00112 PA No. 2198-0112 ESTATE OF REAKA KENNETH EARL rr;XST, a/k/a REAKA KENNETH E Late of UPPER ALLEN TOWNSHIP Deceased Social Security No. 576-24-5121 WHEREAS, on the 4th day of_ February dated -September 19th 1994 1997 an instrument was admitted to probate as the last will of REAKA KENNETH EARL a/k/a REAKA KENNETH E ( late of UPPER ALLEN TOWNSHIP CUMBERLAND County, who died on the 25th day of October 1997 and, ' WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, MARY C. LEWIS Register of Wills in and for the County of CUMBERLAND in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to SANDRA MARIE REAKA who has duly qualified as Executor(rix) and has agreed to administer the estate according to law, all of which fully appears of record in my Office at CUMBERLAND COUNTY COURT HOUSE, CARLISLE, PENNSYLVANIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of my Office the 4th day of February 1997. i r EXHIBIT **NOTE** ALL NAMES ABOVE APPEAR (LAST, FIRST, MIDDLE) ?\ L`?? LAST WILL AND TESTAMENT OF KENNETH EARL REAKA I, KENNETH EARL REAKA, currently residing in Baltimore County, State of Maryland, do hereby make this, my Last Will and Testament, hereby revoking all other Wills and Codicils heretofore made by me, in the manner following, that is to say: ITEM ONE: I hereby direct my Personal Representative to pay the expenses of my funeral and burial in such amount as my Personal Representative may deem proper without regard to any limitation on such expenses imposed by statute or rule of Court and without the necessity of obtaining the approval of any Court having jurisdiction over the administration of my estate. ITEM TWO: I authorize my Personal Representative to pay all legally enforceable debts and administration expenses, including counsel fees for all matters involving my estate probate or non-probate. ITEM THREE:' I direct that all inheritance, estate and succession taxes and all charges of a similar nature, including any interest and penalties thereon paid by reason of or owing at the time of or subsequent to my death, whether from property passing under this Will or otherwise, shall be paid and discharged in full by my Personal Representative out of my residuary estate rather than charged against the individual heirs, legatees or beneficiaries. ITEM FOUR: I give, devise and beqeath all of my estate and property of every kind and description, whether in possession or expectancy or to be acquired in the future, and wheresoever situate, to my four children: SANDRA MARIE REAKA, LINDA DENISE REAKA ANTOON, DARLENE LOUISE REAKA ISRAEL, and KENNETH MICHAEL REAKA in equal parts, share and share alike, or to their surviving descendants, per sarpes. ITEM FIVE: In addition to such powers as my Personal Representative may have by law, I authorize her with respect to any and all property at any time constituting part of my estate, to hold and retain such property, to sell and dispose of the same at public or private sale, at such prices and in such terms as my Personal Representative shall deem proper; to borrow money and to pledge such property as security therefore; to invest and reinvest in any kind of property, real and personal, without limitation to the class of investments in which my Personal Representative may be authorized by statute or rule of court to exercise any option or privilege to convert securities belonging to my estate personally or by proxy; to, become a party to any reorganization, consolidation, merger, or other capital readjustment; to cause securities of my estate to be registered in the name of the nominee of the Personal Representative; to employ a custodian or agent; to manage real property belonging to my estate; to lease any such real property 2 regardless of the fact that the term of any such lease may extend beyond the period of administration of my estate; to borrow money for the benefit of my estate and to pledge or mortgage any property so held as security thereof; to make partition, division, or distribution of my estate in kind or in cash or partly in kind and partly in cash; and to do all other acts which in his discretion may be necessary or appropriate for the proper and advantageous management, investment, and distribution of my estate, and no other person dealing with my Personal Representative who shall purchase from or lend money to my Personal Representative shall be under any obligation to inquire into the propriety or validity of such sale or loan. ITEM SIX: I hereby nominate, constitute and appoint DARLENE LOUISE REAKA ISRAEL to be my Personal Representative of this my Last Will and Testament; but should the said DARLENE LOUISE REAKA ISRAEL not survive me, resign or be unable "yyd to serve, then I nominate, constitute and appoint LINDA DENISE REAKA grTOON as Successor Personal Representative and I hereby declare that my Successor Personal Representative, when she shall have taken up her duties to all intents and purposes shall be regarded the same as my Personal Representative originally named. I request that my Personal Representative be excused from giving bond for the faithful performance of her duties. I hereby confer upon my Personal Representative all powers conferred upon her and authorized bylaw, including, without limitation, full power and authority to sell, lease, mortgage, or otherwise dispose of all or any part of my estate as before set forth in Item 3 Six of this Will. IN WITNESS WHEREOF, I have hereunto set my hand and seal this r? day of ?E?C/nL+C?' , 1994. ? C?/V?? (? KENNETH EARL REAKA SIGNED, SEALED, PUBLISHED AND DECLARED by the Testator, KENETH EARL REAKA as and for his Last Will and Testament, in the presence of us who, at his request, in his presence and in the presence of each other have hereunto subscribed our names as witnesses; and we, the witnesses, do hereby attest that the said Testator at the time of this execution, is of sound and disposing mind, memory and understanding. Ode,.:. dry Qsr-?-c?- /o25y ??.eP.? ?\\ ?,.?- ?'?'?tc? Cc.E?- l?t? .?2/o S?? ACKNOWLEDGEMENT STATE OF MARYLAND COUNTY OF BALTIMORE: ON THIS l9'd day of 'S4prona_ zY , 1994, before me, the undersigned officer, personally appeared KENNETH EARL REAKA known to me to be the person whose name is subscribed to this Last Will and Testament and acknowledged that he executed the same for the purpose therein contained. IN WITNESS whereof I hereunto set my hand and official seal. ?d.`?iT4-?G q Notary Public My Commission Expires: ??"?? STATE OF MARYLAND COUNTY OF BALTIMORE: WE, Lois r7. 1064c f and rdlneza the witnesses whose names are signed to the attached foregoii g. Last Will and Testament, being duly qulified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as his Last Will and Testament; that KENNETH EARL REAKA, signed willingly and that he executed it as his free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the Will as witnesses; and that to the best of our knowledge, the Testator was at the time 18 or more years of age, of sound mind, and under no constraint or undue infuence. Sworn or affirmed to and subscribed to before me by =q.1 *7 4nw PA arf ? 1)7*xoz CA witnesses, this Of day of Leftw_r 1994 Witness Witness - Notary Public My Commision Expires: 8/,hi N a a H 00 04 4 M: m W y w x 3z ': may m u4 CC ll w .S E O 1 N i ?i E- EO C- zz H gg ¢ ° w 3 H W aZ>C 00 00 W Qi 7. WE Ex+0a?-]a>4 En W 1 •• w0 m W H W ro W x w M a N W 2 x H 4 Z? Z W W W Z W E EZACZ HaS ZU fA o j U w mw?waaoww m a w x ro x a D L a 0 z H uw ORICES SCOMILIONKO, SCOBLIONKO, MUIR. E3ARTHOLOMEW & MELMAN A PROrE19ON& C0RPO1NnCW P.O. BOX 1998 40 SOUTH FIFTH STREET ALLENTOWN. PENNSYLVANIA 18105-1998 MARK N. eCOOMWO• ANT40W U. MUM E.G. 000BUONKO JAIAESA. 6ARr"ML E - T[LEPIIONR'(6101u.47106 (16xL1W51 MARIA J. M MN PM. (610)aU4M (MW Aa) FAX (610) 474-0520(AMM'MIMI le.,ow Bawer ?.,,. 'UM T. December 22, 2000 James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Camp Hill, PA 17011 RE: Sandra Reaka v. American Travellers Life Insurance Company Dear James: Pursuant to our telephone conversation of this morning, this will serve to confirm that, following the requisite authority given byourrespective clients, we have reached a settlement of the above-noted matter for the sum of $20,000.00, subject to requisite court approval. The settlement draft will be made payable to "Kollas and Kennedy, attorneys for Sandra M. Reaka, Executrix of the Estate of Kenneth E. Reaka, deceased." As a result, at such time as the court gives its approval, it will be necessary for you to return a signed W-9 form to mc. A blank form for your completion and signature is enclosed. I have prepared a Release, and that is also enclosed. I have simultaneously sent it to me client for review and approval, and I will advise you if the client requests any changes. Similarly, I would appreciate if you would advise me if the enclosed form is acceptable to you and your client. As per your request, I signed the letter that you faxed earlier today, although I added the words "subject to court approval." Finally, I am enclosing a copy of a Petition for Approval of Compromise and Settlement which was utilized in a similar case about a year ago and which should be of help to you in drafting your Petition. I have not included a copy of a proposed Order, which will have to be prepared to track the Petition. Please send me a copy of the proposed Petition before you present it and be sure to give me notice of the hearing, as I will probably wish to be in attendance. EXHIBIT r 11 r?Jr James W. Kollas, Esquire December 22, 2000 Page Two I am pleased that we were able to bring this matter to a conclusion. Very truly yours, / /ark H. Scoblionko l MHS/daw Enclosure VIA TELEFAX ONLY bcc.• Barbara B. Short/e, Esquire (w/o encl. •• via e-mail only) May 17, 1999 Sandra M. Reaka 42 Alfred Drive Lewisberry, PA 17339 RE: New Client Relationship Dear Sandra: This letter serves as the understanding between us regarding representation for you, Executrix of the Kenneth Earl Reaka Estate, in the matters concerning that estate. The Pennsylvania Rules of Disciplinary Procedure require that I provide you with this letter that explains the basis of our representation and the charges for such representation. Our office has agreed to represent you on a contigency basis as follows: 25% of any settlement prior to trial 331/3% of any verdict or settlement following commencement of trial Incidental Expenses (Faxes, Fees, Postage, etc)......... as used You will receive itemized invoices on a monthly basis. Payment of the invoice will be due upon receipt. If at any time you need to arrange different payment procedures, you should contact our office immediately. Because an attorney/client relationship depends on mutual good faith, we must reserve the right to terminate any attorney/client relationship because of nonpayment of fees or costs, or if an unforseen conflict of interest should happen to arise later. We depend on you to make accurate representations to us, and if inaccurate representations are made, we reserve the right to terminate our relationship as mandated in our code of professional responsibility. Please read over this information, and if you feel it accurately reflects the understanding between us, sign one copy which you should return to our office. Keep the other copy for your records. Once we have received the copy signed by you, we can begin our representation with all diligence. 1% 11 Sandra M. Reaka May 17, 1999 Page Two If you have any questions please feel free to call. Our assistant, Carole, should be able to answer any questions you might have regarding our billing procedures. Otherwise, I would be happy to answer any questions concerning your representation. I look forward to being of assistance to you. Thank you for your consideration. Sincerely, KOLLAS AND KENNEDY James W. Kollas Date: `-1 I 1 Accepted=?? ilk- SandraM. Reaka SANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, Plaintiff V. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1999-4844 : CIVIL ACTION - LAW JURY TRIAL DEMANDED VERIFICATION I, Sandra M. Reaka, Plaintiff and Petitioner herein, verify that the statements made in the foregoing Petition for Approval of Compromise and Settlement are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904, relating to unswom falsification to authorities. Sandra M. Reaka DATE: I IJ -1 1- 1, ?) CUMBERLAND 5ANDRA M. REAKA, EXECUTRIX OF THE ESTATE OF KENNETH E. REAKA, DECEASED, _ Plaintiff YS. AMERICAN TRAVELERS LIFE INSURANCE COMPANY, Defendant , TO THE PROTHONOTARY/CLERK OF SAID COURT: File No. 1999-4844 You are hereby authorized, emppowered, and directed to enter, as indicated, the following on the records theroT A.l. The within suit is Settled, Discontinued, Ended and costs paid. 2• xx The within suit is Settled, Discontinued, Ended YM Prejudice and costs paid. 3• The within suit is Settled, Discontinued, Ended MITOUT Prejudice and costs paid. B..I. Satisfaction of the Award in the within suit is acknowledged. 2• Satisfaction of Judgment, with interest and costs, in the within matter is acknowledged. C• Other: DATE: ? "WITNESS i signer s other than a registered attorney): Attorney or Notary Signature Or authorizing party• James W. Kollas, Esquire Type or print name of above signer COST PAYMENT VERIFICATION James W. SK las, Esquire LO Cj ht ' ] . _ G (1 .r ? C. cD C7