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HomeMy WebLinkAbout07-4170 VOUGH & ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 Fax: 570-654,: (509 TANYA GELB, Plaintiff IN THE COURT OF COMMON PLEAS v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants OF CUMBERLAND COUNTY CIVIL ACTION -LAW NO: ~J"jp OF 2007 NOTICE You have been sued in court. If you wish to defend against the claim 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 Plaintif£ 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 TELE-PHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Mid Penn Legal Services Cumberland County Bar Association 401 East Louther Street 32 South Bedford Street Suite 103 Carlisle, PA 17013 Carlisle, PA 17013 800-990-9108 800-822-5288 VOUGH & ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Stteet Pittston, PA 18640 Phone: 570-654-6499 F sac: 570-654-6509 TANYA GELB, v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants • CNIL ACTION -LAW . NO: O 7- y/70 OF 2007 COMPLAINT AND NOW, comes the Plaintiff, Tanya Gelb, by and through her Attorneys, Vough & Associates, by Michael T. Vough, Esquire, and complains of the Defendant, Aflac, as follows: 1. The Plaintiff, Tanya Gelb, is an adult individual currently residing at 9 Stephen Road, Camp Hill, Cumberland County, Pennsylvania 17011-1156. 2. The Defendant, Aflac a/k/a American Family Life Assurance Company of Columbus, is an insurance company duly licensed to conduct business in the Commonwealth of Pennsylvania with a principal place of business at 1932 Wynnton Road, Columbus, Georgia 31999-0001. The Defendant, Ken Litwiller is believed and therefore averred to be an adult individual with an address of 27 Kristi Lane, Lewistown, Pennsylvania 17044 who, at all IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY times relevant, is believed and therefore averred to be the agent/employee of the Defendant, Aflac. 4. On or about January 23, 2004, the Defendant, Aflac, via its agent/employee, the Defendant, Ken Litwiller, executed and delivered a disability insurance policy (Policy No. PA 965183) (hereinafter `the policy') to the Plaintiff which policy provided disability insurance coverage to the Plaintiff. 5. On or about November 30, 2005, the Plaintiff received correspondence from the Defendant, Aflac, that Plaintiff s claim for disability benefits, "are not payable for the following reason(s): Benefits were previously paid to the insured." A copy of the Defendant, Aflac's correspondence to the Plaintiff dated November 30, 2005 is attached to and incorporated herein as Exhibit "A". By way of further averment, Plaintiff received only one (1) check from the Defendant, Aflac, totaling $1,306.67 and dated August 19, 2005 despite the fact that Plaintiff was pregnant and gave birth on July 27, 2005 and was otherwise entitled to twelve (12) months of disability benefits under the policy issued by the Defendant, Aflac, as more particularly described herein at Paxagraph 4. 6. At all times relevant and material hereto, the Plaintiff paid all premiums due and owing pursuant to the policy issued by the Defendant, Aflac, to the Plaintiff in a timely fashion and as per the requirements of said Defendant, Aflac. 7. At all times relevant and material hereto, the Defendant, Aflac's agent/employee, the Defendant, Ken Litwiller, represented and assured to the Plaintiff that the policy of insurance issued to the Plaintiff by the Defendant, Aflac, provided for twelve (12) months of disability benefits during those periods of time including, but not limited to, any and all periods of time immediately subsequent to pregnancy. 8. It is believed and therefore averred that the Plaintiff, at all times relevant and material hereto, paid premiums to the Defendant, Aflac, pursuant to the aforementioned policy of insurance issued to the Plaintiff by the Defendant, Aflac, for benefits including, but not limited to disability benefits for those periods as described herein at Paragraph 7 which premium payments the Defendant, Aflac, received, accepted and converted into its own funds. COUNTI TANYA GELB v AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS BREACH OF CONTRACT 9. Plaintiff hereby incorporates paragraphs one (1) though eight (8) of this Complaint as though fully set forth at length. 10. As more particularly described herein above, the Defendant, by reason of that disability insurance policy issued at policy number PA 965183 and said Defendant's and Defendant's agent/employee's statements and assertions concerning the policy, for which all requisite premiums were paid by the Plaintiff and of which all requisite obligations were performed by the Plaintiff pursuant to said policy, the Defendant is obligated to pay to the Plaintiff any and all disability benefits payable to the Plaintiff as the result of the Plaintiff's injuries. 11. Despite repeated requests, the Defendant has failed and refused, without reason or justification, and still refuses to pay Plaintiff's any and all benefits payable to the Plaintiff. 12. The Defendant's refusal to pay any and all benefits to the Plaintiff constitutes a breach of contract of the disability insurance policy number PA 965183. WHEREFORE, the Plaintiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant, Aflac, a/k/a American Family Life Assurance Company of Columbus, in an amount greater than the maximum jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Court deems appropriate. COUNT II TANYA GELB v AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS BAD FAITH PURSUANT TO 42 PA C S A X8371 13. Plaintiff hereby incorporates paragraphs one (1) though twelve (12) of this Complaint as though fully set forth at length. 14. The past and ongoing actions of the Defendant relative to policy number PA 965183 issued to the Plaintiff consist of the following: (a) Unreasonably and unjustifiably denying payment of Plaintiff s any and all benefits pursuant to policy number PA 965183 where all credible and substantiated information provided by the Plaintiff and Plaintiff's representatives demonstrates that any and all benefits are payable as the result of the disability insurance policy number PA 965183; and (b) Compelling the Plaintiff to institute litigation to recover payment of any and all benefits that are payable, due and owing pursuant to disability insurance policy number PA 965183. 15. The conduct of the Defendant, more particularly described at paragraph 14 herein, constitutes bad faith on the part of the Defendant toward the Plaintiff as defined at 42 Pa. C.S.A. Section 8371. 16. The conduct of the Defendant, more particularly described at paragraph 17 herein, is outrageous and recklessly indifferent to the rights of the Plaintiff and the obligations of the Defendant pursuant to disability policy number PA 965183 issued by the Defendant and, therefore, Plaintiff is entitled to punitive damages. WHEREFORE, the Plaintiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant, Aflac a/k/a American Family Life Assurance Company of Columbus, in an amount greater than the maximum jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Court deems appropriate. COi~NT III TANYA GELB v AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS UNJUST ENRICHMENT 17. Plaintiff hereby incorporates paragraphs one (1) though sixteen (16) of this Complaint as though fully set forth at length. 18. Defendant's ongoing and continuous failure to pay the Plaintiffls any and all benefits pursuant to disability insurance policy number PA 965183 issued by the Defendant in spite of Plaintiffls entitlement to the same as more particularly described herein constitutes an unjust enrichment on behalf of the Defendant to the financial detriment of the Plaintiff as an insured under said disability insurance policy issued by the Defendant. WHEREFORE, the Plaintiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant, Aflac a/k/a American Family Life Assurance Company of Columbus, in an amount greater than the maximum jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Court deems appropriate. coUNT Iv TANYA GELB v IAN LITWILLER FRAUD 19. The Plaintiff hereby incorporates by reference the allegations contained in Paragraphs one (1) through eighteen (18) above as if the same were fully set forth herein at length. 20. The Defendant, Ken Litwiller, represented and assured to the Plaintiff that the policy of insurance issued to the Plaintiff by the Defendant, Aflac, provided for twelve (12) months of disability benefits during those periods of time including, but not limited to, any and all periods of time immediately subsequent to pregnancy. 21. The Defendant, Ken Litwiller, falsely misrepresented to the Plaintiff that, by virtue of the policy of insurance issued to the Plaintiff by the Defendant, Aflac, the Defendant, Aflac, would provide the Plaintiff with twelve (12) months of disability benefits during those periods of time including, but not limited to, any and all periods of time immediately subsequent to pregnancy. 22. Defendant, Ken Litwiller, knew, or had reasonable cause to know as the Defendant, Aflac's agent/employee, that the Defendant, Aflac, may attempt to deny responsibility for providing twelve (12) months of disability benefits to the Plaintiff during those periods of time including, but not limited to, any and all periods of time immediately subsequent to pregnancy. 23. Defendant, Ken Letwiller, made the representations to the Plaintiff with actual knowledge of their falseness at the time they were made or in reckless disregard of the truthfulness or falseness of the same. 24. Defendant, Ken Litcviller, is liable for the fraudulent representations made to the Plaintiff. WHEREFORE, the Plaintiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant, Ken Litwiller, in an amount greater than the maximum jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Court deems appropriate. Respectfully submitted, VOUGH & ASSOCIATES ~~~ MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty Id No: 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 Fax: 570-654-6509 VERIFICATION I, MICHAEL T. VOUGH, ESQUIRE ,hereby state: I am the attorney for Tanya Gelb in this action, who is unavailable to verify the statements contained herein. 2. I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief; and I understand that the statements in said Complaint as well as this verification are made subject to the penalties of 18 Pa. C.S.A.~4909 relating to unsworn falsification to authorities. 4. A substitute verification executed by Tanya Gelb will be supplemented upon availability. Date: ~ ~ ~ 3 - ~~ ~. ~Gh~ MICHAEL T. VOUGH, ESQUIRE --•- -- . 11/30/Ob 0 q I~ullf~u~~~rl~~~~~~~u~I~~~~~~~~~~I~i~ii~~u~~ni~l~u~~~~~~ s Tanya J. Gets -~ 7 ' ~ 9 Stephen' Rd. I - l J ~ ,~ ~ ,) ~ ) ~ Csmp Hlil PA 17011-1156 RE; Polley ~; ~PA885185 Policy Type: Short-Term Disability ~ Patient: Tanya Provider: Lw-9 Treatment Date(s): 09/07/05 Dear Ms. Gelb: We received your claim with the information referenced above. ~~ac~,. Altar careiuliy reviewing your claim, we have d®termined that benefits are not payable for the following reason(s): Benefits were previously paid to the insured. If you have any information that may affect our decision, please forward it to us forfurther review. We value you as an Aflac policyholder and regr®t that our dedalon could not be more favorable. If wa may help you in the future or 8 you have any questions, please call us toll-free at 1-800-99-AFIAC (1-800-992-3522). Our customer service gpeclalists are here to assist you Monday Through Friday from B:OD a.m. to 8:00 p.m. Eastern time- Sincerely, Claims Department 1:06875 ciz2 /CtA02z Amedc~ Famlry Ufe Assurance Company of Columbus (ANac) W Exh i b i t Worldwide Headquarters • 1992 Wynnton Road • Columbus, t3goraia 31899-0001 W 1-800.99•AFLAC (1-900-892.3622) • elldc.com ~ ~~ A ~~ 1-BOalA2S522 ~n 09peffel ~ - _ J ~---~.~~ Q - ~ ,~ .p U1 ~ -~ ~ C~ _ .,.,, ~- _ ~...- r-,~ ~ -' , c_' ~ Qy - . ,-r D =-~.. .1 ~ ..~ :7J ,.C VOUGH & ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 Fax: 570-654-6509 __ _ _ __ _ TANYA GELB, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY ~• CIVIL ACTION -LAW AFLAC a/k/a American Family Life . Assurance Company of Columbus and KEN LITWILLER, Defendants NO: 4170 OF 2007 PRAECIPE TO SI,IBSTIT~,,TTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification in place of the Attorney Verification affixed to Plaintiffs Complaint filed with your office on July 16, 2007. Respectfully submitted, VOUGH & ASSOCIATES V MICHAEL T. ~ OUGH, ESQ IRE Attorney for Plaintiff VERIFICATION I, TANYA GELB verify that the statements made in the foregoing COMPLAINT are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 P.A. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: 7/18/07 ;''' c - 4_~ C.~ '1 ~ .~~ .^', - ~.-_~. [S'1 r-=- ~~ ~ J•' Y, ~,+~ '"~4 McNEES WALLACE &NURICK LLC Alan R. Boynton, Jr., I.D. No. 39850 aboynton@mwn.com Devin J. Chwastyk, I.D. No. 91852 dchwastyk@mwn.com 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendant (717) 232-8000 AFLAC a/Wa American Family Life (717) 237-5300 (fax) Assurance Company of Columbus TANYA GELB, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 4170 CV 2007 AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS and KEN LITWILLER, Defendants CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of the undersigned on behalf of Defendant AFLAC a/k/a American Family Life Assurance Company of Columbus in the above-captioned action. McNEES WALLACE &NURICK LLC By fClan R. Boynton, I.D. No. 39850 Devin J. Chwastyk I.D. No. 91852 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Dated: August 9, 2007 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by first-class mail, postage prepaid, upon the following: Michael T. Vough, Esquire Vough & Associates 126 South Main Street Pittston, PA 18640 Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 ~~ Devin J. Chwastyk Counsel for Defendant AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS Dated: August 9, 2007 ~ C ~ z~t ~~ -x: ~~- - ~. ---~ n .`: ~ ~z .~ -c~ ~., c_~ = tv -,~ ~ ~ :.~ ~ ~ - tv = y ~. Glenn R. Davis, Esq. Attorney I. D. No. 31040 Andrea E. Dean, Esq. Attorney I. D. No. 86301 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 (717) 620-2444 (facsimile) Attorneys for Defendant Ken Litwiller IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TANYA GELB, Plaintiff v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants No. 4170 of 2007 CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of the undersigned and Latsha Davis Yohe & McKenna, P.C., on behalf of Defendant Ken Litwiller in the above-captioned matter. Respectfully submitted, Dated: 1D ~ ~ LATSHA DAVIS YOHE & MCKENNA, P.C. a~ C~...~rab Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I. D. No. 86301 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 117406 !~ ~ CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Entry of Appearance was served via first-class United States mail, postage prepaid, upon the following: Michael T. Vough, Esq. Vough & Associates 126 South Main Street Pittston, PA 18640 Alan R. Boynton, Esq. Devin J. Chwastyk, Esq. McNees Wallace & Nurick LLC P. O. Box 1166 Harrisburg, PA 17108-1166 Dated: 0 200'1 ~~2G1'~ Glenn R. Davis 117406 ~ o ~ <;; . J t"f' ~ ~ ---'„ ti l ~ 1 ~ _ Cy ~%-c, _ ~ ~ . ` -~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-04170 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GELB TANYA AFLAC ET AL VS R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT LITWILLER KEN to wit: but was unable to locate Him deputized the sheriff of MIFFLIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On July 30th 2007 this office was in receipt of the attached return from MIFFLIN Sheriff's Costs: So answers: -~" `_ ,~ Docketing 18.00 ~..---J~~'~- :-='`~~ Out of County 9.00 `; 1~-_~~~"~~'~~ Surcharge 10.00 R. homas K ine Dep Mifflin Co 34.00 Sheriff of Cumberland County Postage ,92 71.92 / St114~~? 07/30/2007 VOUGH & ASSOCIATES Sworn and subscribe to before me this day of in his bailiwick. He therefore A.D. f 1 In The Court of Common Pleas of Cumberland County, Pennsylvania Tanya Gelb VS. AFLAC ~t al SERVE: Ken Litwillsr No . 07-4170 civil Now, July is, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Mifflin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, within upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA 20 , at o'clock M. served the • Y d Joseph A. Bradley , Sheriff Baron K. Lewis , Chief Deputy Laurie J. Kozak , Deputy Christoher S. Shade , Deputy Charles L. Angney , Deputy James R. Bell , Deputy ~..` ~_- _ SHERIFF'S OFFICE MIFFLIN COUNTY 20 North Wayne Street Lewistown, PA 17044 (717) 242-] 105 *' Fax: (717) 248-2907 David W. Molek , Solicitor (717) 248-9656 Plaintiff: Tanya Gelb Court Number: 4170-2007 County: Cumberland County Defendant: Ken Litwiller Type of Writ or Complaint: ^ Writ Notice n Complaint Name: Ken Litwiller Address: 27 Kristi Lane, Lewistown, Pa. 17044 Serve At Name: Address: Indicate Unusual Service: [] Comm. of Pa. ^ Deputization ^ Other Now 20 , I, SHERIFF OF MIFFLIN COUNTY, PA. do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law. This deputization is made at the request and risk of plaintiff. X Sheriff of Mifflin Co. Special Instructions or other information that will assist in expediting service: Attorney or other Organization requesting service: Telephone No: Date Filed: Vough & Associates (570) 654-6499 711612007 I acknowledge r eipt o t Writ or Complai as indicated above: Date Received: Exp. Date: X ~~~~~ ~. _ 7120!2007 8/15/2007 hereby C TIFY and RETURN that I ^ have personally served. ~ have legal evidence of service as shown in "Remarks", ^1 have executed as shown in "Remarks", the Writ or Complaint described on the individual, company, corporation, etc. at the address shown above or on the individual, company, corporation, etc., at the address inserted below, handing a TRUE and ATTESTED copy thereof. ^' I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., name above. (See Remarks below.) Name and Title of individual served: U A person of suitable age and discretion Served Laura Litwiller, wife, for Ken Litwiller ~ then residing at the defendent's usual place of abode. Address where served (complete only if different than shown above) Date of Service: Time: 7120/2007 3:55 PM Attempts Date Miles Dep.lnt. Date Miles Dep.lnt. Date Miles Dep.lnt. 1 7/20/2007 s cLA Advance Costs Service Costs Mileage Postage Surcharge Notary Total Refund $75.00 $18.00 $10.00 $1.00 U $5.00 ~ 3~i.U'L ~'ii,l2ll r~en~aiKS: twee vi:ner lae) Syvoyr~ to and subscrib d before me this ,-,? ; < r Vii, i,, ,,; Z r ; (~ , .~ r,h~ Notary Public Notarial Seal NOTARIAL SEAL PATRICIAA. WILSON, Notary PubNo My Commis is on Exphrs Ma-ChC X71 So Answers: Deputy Sheriff Charles L. Angney 7/23/2007 X Gh~~ ~. Sheriff s h Bradl 7/23!2007 X MCNEES WALLACE ~ NURICK LLC Alan R. Boynton, Jr., I.D. No. 39850 aboynton@mwn.com Devin J. Chwastyk, I.D. No. 91852 dchwastyk@mwn.com 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendant (717) 232-8000 AFLAC a/k/a American Family Life (717) 260-1673 (fax) Assurance Company of Columbus IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANYA GELB, Plaintiff NO. 4170 CV 2007 v. AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS and KEN LITWILLER, Defendants CIVIL ACTION -LAW NOTICE TO PLEAD TO: Tanya Gelb, Plaintiff, and her attorney Michael T. Vough, Esquire You are hereby notified to file a written response to the within New Matter within 20 days from service hereof or a judgment may be entered against you. MCNEES WALLACE &NURICK LLC a~~ I.D. No. 39850 \ Devin J. Chwastyk I.D. No. 91852 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Dated: August 20, 2007 McNEES WALLACE 8 NURICK LLC Alan R. Boynton, Jr., I.D. No. 39850 aboynton@mwn.com Devin J. Chwastyk, I.D. No. 91852 dchwastyk@mwn.com 100 Pine Street, P. O. Box 1166 Harrisburg, PA 1 71 08-1 1 66 Attorneys for Defendant (717) 232-8000 AFLAC a/Wa American Family Life (717) 260-1673 (fax) Assurance Company of Columbus IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TANYA GELB, Plaintiff NO. 4170 CV 2007 v. AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS and KEN LITWILLER, Defendants CIVIL ACTION ANSWER AND NEW MATTER OF DEFENDANT AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS Defendant Aflac a/k/a American Family Life Assurance Company of Columbus ("Aflac"), by and through its counsel McNees Wallace & Nurick LLC, files the following Answer to the Complaint of Plaintiff Tanya Gelb ("Gelb"): 1. Denied. After reasonable investigation, Aflac is without knowledge or information sufficient to form a belief as to the truth of paragraph 1, and the same is therefore denied and proof demanded at trial, if material and relevant. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant Ken Litwiller ("Litwiller") is an adult individual with an address of 27 Kristi Lane, Lewistown, Pennsylvania 17044. It is denied that Litwiller was or is an "agent/employee" of Aflac. Litwiller is not an employee of Aflac, rather, he is an independent contractor authorized to sell Aflac's insurance policies. The averment that Litwiller was or is an "agent" of Aflac states a conclusion of law, to which no responsive pleading is required. To the extent that a responsive pleading is required, the same is denied and strict proof of the same is demanded at trial. 4. Denied. By way of further answer, on January 23, 2004, Gelb (using her maiden name Tanya J. Mascioni) completed an application for aShort-Term Disability Policy, which application was transmitted by Litwiller to Aflac. Thereafter, Aflac issued a Short-Term Disability Policy (the "Policy") to Mascioni, with an effective date of February 15, 2004. A true and correct copy of the Policy is attached hereto as Exhibit "A." The name on the Policy was changed from Mascioni to Gelb effective on or about May 16, 2005. 5. Admitted in part and denied in part. It is admitted that the letter attached to the Complaint as Exhibit A is correspondence from Aflac to Gelb dated November 30, 2005. It is admitted that Gelb received a check from Aflac in the amount of $1,306.67, dated August 19, 2005. The remaining averments of paragraph 5 are denied. Exhibit A to the Complaint is a document that speaks for itself, and any characterization of its contents is therefore denied. By way of further response, it is specifically denied that Gelb was entitled to twelve months of disability benefits under the Policy. Under the terms of the Policy, Gelb was entitled to per diem disability payments, equal to one-thirtieth of the Policy's "Monthly Benefit Payable" of $1,400.00, only for "each day [she] remain[ed] Totally Disabled," following an Elimination Period of 14 days for sickness, up to a maximum 2 Benefit Period of 12 months. See Exh. A at Policy Schedule; Part 4, ¶ A. "Totally Disabled" is defined by the Policy as: your continuing inability to perform the material and substantial duties of your Full-Time Job. You also must be under the care and attendance of a Physician for your condition. Exh. A at Part 1, ¶ N. Byway of further response, Gelb was pregnant and gave birth on July 27, 2005. Aflac was initially notified that Gelb was eligible to return to work on September 6, 2005. Aflac therefore paid Gelb $1,306.67, which represented 28 days of disability (42 days from July 27th to September 6th, less the 14-day Elimination Period). By way of further response, after an initial inquiry by Gelb, Aflac contacted Gelb's physician to determine if there were any complications that could have extended Gelb's period of Total Disability. Gelb's physician informed Aflac that Gelb's return-to-work date had been extended to September 12, 2005, due to back pain, and that as of September 12, 2005; Gelb had been released to return to work. On May 2, 2007, Aflac sent a check to Gelb's attorney in the amount of $233.33, representing Gelb's disability payments for the period of September 6-11, 2005. It is therefore denied that Gelb received only one check from Aflac. 6. Denied. Gelb failed to make the premium payment due pursuant to the Policy, and the Policy therefore lapsed due to nonpayment on October 1, 2006. 7. It is denied that Litwiller is an "agent" or "employee" of Aflac. Aflac's response to paragraph 3, above, is incorporated herein. After reasonable investigation, Aflac is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 7, and the same are therefore denied. By way of 3 further answer, it is clear from the face of the Policy that the Policy provides for payment of disability benefits only during periods of time that Gelb was "Totally Disabled," within the meaning of the Policy. It is clear from the face of the Policy that it does not provide for the payment of twelve months of disability benefits during "any and all periods of time immediately subsequent to pregnancy," but only during the duration of a qualified disability. Gelb knew or should have known this information before applying for the Policy. Additionally, before applying for the Policy, Gelb received Outline of Coverage and Plan Highlights documents, which further explained the terms and limitations of the Policy. A true and correct copy of the Plan Highlights brochure is attached hereto as Exhibit "B." An example of the Outline of Coverage provided to Gelb is attached hereto as Exhibit "C." Further, pursuant to her Application for Short-Term Disability Insurance (the "Policy Application"), a true and correct copy of which is attached hereto as Exhibit "D," Gelb agreed that: understand that ... (2) AFLAC is not bound by any statement made by me, or any associate/agent of AFLAC, unless written herein; (3) the associate/agent cannot change the provisions of the policy or waive any of its provisions either orally or in writing; (4) the policy together with this application and endorsements or riders, if any, is the entire contract of insurance; and (5) no change to the policy will be valid until approved by Aflac's secretary and president and noted in or attached to the policy. Exh. D at p. 4. Gelb therefore contractually agreed that no representations made by Litwiller could define or alter the meaning or scope of the Policy. 4 Finally, the Policy provided Gelb with 30 days following its effective date to review the Policy, and permitted Gelb to return the Policy if she was dissatisfied with its terms. The Policy provides: YOUR RIGHT TO EXAMINE THIS POLICY If you are not satisfied for any reason, you may return the policy within 30 days after you receive it. Send it to: your associate (duly licensed agent); or to AFLAC Worldwide Headquarters, 1932 Wynnton Road, Columbus, Georgia 31999. You will receive a full refund of all premiums paid, and your policy will be void from its Effective Date. IMPORTANT NOTICE: Please read your application attached to this policy. This policy is issued on the basis that the information shown on the application is correct and complete to the best of your knowledge and belief. Carefully check the application. Write to us within 30 days of the date you receive this policy if any information shown on it is not correct or complete. No associate (duly licensed agent) may change this policy or waive any of its provisions. Exh. A at p. 1. 8. Denied. It is denied that Gelb "at all times relevant and material hereto, paid premiums" to Aflac. Aflac's response to paragraph 6, above, is incorporated herein. It is further denied that any payments made by Gelb to Aflac entitled Gelb to "disability benefits for those periods as described herein at Paragraph 7 ..." Aflac's response to paragraphs 6 and 7, above, are incorporated herein by reference. COUNTI TANYA GELB v. AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS BREACH OF CONTRACT 9. Aflac incorporates its responses to paragraphs 1 through 8 of the Complaint as if set forth in full. 10. Denied. It is denied that any "statements or assertions" by Aflac or Litwiller could define or alter the meaning or scope of the Policy. It is denied that Aflac 5 is obligated to pay any further disability benefits to Gelb pursuant to the Policy. Aflac has paid Gelb disability payments for the period of her disability, as defined by the Policy, of July 27, 2005 through September 11, 2005. It is denied that Gelb is entitled to any further payments from Aflac. Aflac has fully complied with the Policy. Aflac incorporates paragraphs 5-7, above, by reference. 11. Admitted in part and denied in part. It is admitted that Gelb has made demands for additional payments. It is denied that Gelb is entitled to such payments. Aflac has paid Gelb disability payments for the period of her disability, as defined by the Policy, of July 27, 2005 through September 11, 2005. It is denied that Gelb is entitled to any further payments from Aflac. Aflac has fully complied with the Policy. Aflac incorporates paragraph 5, above, by reference. 12. Denied. This averment states a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the same is denied. Aflac has fully complied with the Policy. Aflac incorporates paragraphs 5-7, above, by reference. WHEREFORE, Defendant Aflac a/k/a American Family Life Assurance Company of Columbus respectfully requests that the Court enter judgment in its favor and against Plaintiff Tanya Gelb, along with costs and such other relief as the Court deems appropriate. 6 COUNT II TANYA GELB v. AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS BAD FAITH PURSUANT TO 42 PA. C.S.A. §8371 13. Aflac incorporates its responses to paragraphs 1 through 12 of the Complaint as if set forth in full. 14. Denied. Aflac has paid Gelb disability payments for the period of her disability, as defined by the Policy, of July 27, 2005 through September 11, 2005. It is denied that Gelb is entitled to any further payments from Aflac. Aflac has fully complied with the Policy. Aflac incorporates paragraph 5, above, by reference. It is denied that Aflac "compet[ed]" Gelb to institute litigation. 15. Denied. This averment states a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the same is denied. Aflac incorporates its response to paragraph 5, above. 16. Denied. This averment states a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the same is denied. Aflac incorporates its response to paragraph 5, above. WHEREFORE, Defendant Aflac a/k/a American Family Life Assurance Company of Columbus respectfully requests that the Court enter judgment in its favor and against Plaintiff Tanya Gelb, along with costs and such other relief as the Court deems appropriate. 7 COUNT III TANYA GELB v. AFLAC a/k/a AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS UNJUST ENRICHMENT 17. Aflac incorporates paragraphs 1 through 16, above, by reference. 18. Denied. Plaintiff received all benefit to which she was entitled under the Policy. Plaintiff is not entitled to any further benefits pursuant to the Policy. Aflac has not been unjustly enriched. WHEREFORE, Defendant Aflac a/k/a American Family Life Assurance Company of Columbus respectfully requests that the Court enter judgment in its favor and against Plaintiff Tanya Gelb, along with costs and such other relief as the Court deems appropriate. COUNT IV TANYA GELB v. KEN LITWILLER FRAUD 19. Aflac incorporates paragraphs 1 through 18, above, by reference. 20. Denied. The averments of paragraph 20 are not directed at Aflac, and therefore no responsive pleading is required. To the extent that a responsive pleading is required, the same are denied. Aflac is without knowledge or information sufficient to form a belief as to the truth of any alleged representations or assurances by Litwiller, and the same are therefore denied. Aflac incorporates its response to paragraph 7, above. 21. Denied. The averments of paragraph 20 are not directed at Aflac, and therefore no responsive pleading is required. To the extent that a responsive pleading 8 is required, the same are denied. Aflac incorporates its responses to paragraphs 7 and 20, above. 22. Denied. The averments of paragraph 20 are not directed at Aflac, and therefore no responsive pleading is required. To the extent that a responsive pleading is required, the same are denied. Aflac is without knowledge or information sufficient to form a belief as to the truth of what Litwiller knew or had cause to know. It is denied that Plaintiff was entitled to the payment of any further disability benefits pursuant to the Policy. Aflac incorporates its response to paragraph 5, above. 23. Denied. The averments of paragraph 20 are not directed at Aflac, and therefore no responsive pleading is required. To the extent that a responsive pleading is required, the same are denied. Aflac incorporates its responses to paragraphs 7 and 20, above. 24. Denied. The averments of paragraph 20 are not directed at Aflac, and therefore no responsive pleading is required. To the extent that a responsive pleading is required, the same are denied. Aflac incorporates its responses to paragraphs 7 and 20, above. WHEREFORE, Defendant Aflac a/k/a American Family Life Assurance Company of Columbus respectfully requests that the Court enter judgment in its favor and against Plaintiff Tanya Gelb, along with costs and such other relief as the Court deems appropriate. NEW MATTER 25. Aflac's responses to paragraphs 1 through 24 of the Complaint, as set forth above, are incorporated by reference and as if set forth in full. 9 26. Gelb has failed to state claims upon which relief can be granted. 27. Gelb's claims are barred, in whole or in part, because Gelb failed to mitigate her damages. 28. Aflac's actions are not the proximate cause of the damages alleged by Gelb. 29. The damages allegedly suffered by Gelb were caused, in whole or in part, by Gelb's own actions or failure to act. 30. The damages allegedly suffered by Gelb were caused, in whole or in part, by actions of third persons. 31. Aflac provided Gelb with documentation regarding the terms of the Policy prior to Gelb applying for the Policy, which documentation explained that the Policy provides for payment of disability benefits only during periods of time that Gelb was "Totally Disabled," within the meaning of the Policy. It is clear from the face of the Policy that it does not provide for the payment of 12 months of disability benefits during "any and all periods of time immediately subsequent to pregnancy." Aflac incorporates paragraph 7 of its Answer, above, by reference. 32. Gelb completed and signed the Application for the Policy, attached hereto as Exhibit D. 33. The Application included Gelb's agreement to the following: I understand that ... (2) AFLAC is not bound by any statement made by me, or any associate/agent of AFLAC, unless written herein; (3) the associate/agent cannot change the provisions of the policy or waive any of its provisions either orally or in writing; (4) the policy together with this application and endorsements or riders, if any, is the entire contract of insurance; and (5) no change to the policy will be valid until approved by Aflac's secretary and president and noted in or attached to the policy. 10 See Exh. D, p. 5. 34. Gelb's claims are barred by the plain language and provisions of the Policy and Policy Application. 35. The falsity of any alleged misrepresentations made by Litwiller would have been patently obvious to Gelb had she made a cursory examination of the Policy, Policy Application, and other documentation provided to Gelb by AFLAC. 36. Gelb's reliance on any alleged misrepresentations made by Litwiller was not justifiable. 37. Gelb waived and released her claims by signing the Policy Application, with its agreement that oral statements by AFLAC's agents are not binding and that agents cannot change or waive policy provisions. WHEREFORE, Defendant Aflac a/k/a American Family Life Assurance Company of Columbus respectfully requests that the Court enter judgment in its favor and against Plaintiff Tanya Gelb, along with costs and such other relief as the Court deems appropriate. McNEES WALLACE & NURICK LLC By i.u. i~o..syts5u Devin J. Chwastyk I.D. No. 91852 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Dated: August 20, 2007 11 AUG-20-OT 10:41AMI FR0~1-AFLAC LEGAL DEPARTMENT T06-596-35TT T-402 P.002/002 F-400 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify I am authorized to make this verification on behalf of Defendant Aflac a/k/a American Family Life Assurance Company of Columbus and that the facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge, or information and belief. , atthew o ilk gated; August ~, 2007 Short Term Disability Po~rc.~y i American Family Life Assurance Company of Columbus (Aflac) Worldwide Headquarters • Columbus, Georgia 31999 /~f~ac.M ^., aQ 8/06 Tanya J Gefb /~f~lac., SHORT-TERM DISABILITY POLICY Non-Participating IMPORTANT: This policy pays benefits for Short-Term Disability due to Sickness or Off-the-Job Injury. Read it carefully. ~~~~ yy{{~ °J it -. N O 0 N D ti N 0 c~ z 0 0 0 0 T W 0 U In this policy, you the Insured, as shown in the Policy Schedule, will be referred to as "you," "your" or "yours." American Family Life Assurance Company of Columbus, a stock company, will be referred to as "we," "our," "us" or "AFLAC." CONSIDERATION We promise to insure you for the benefits described in this policy. We make this promise in consideration of the application for this policy and the payment of the premium. YOUR RIGHT TO EXAMINE THIS POLICY If you are not satisfied for any reason, you may return the policy within 30 days after you receive it. Send it to: your associate (duly licensed agent); or to AFLAC Worldwide Headquarters, 1932 Wynnton Road, Columbus, Georgia 31999. You will receive a full refund of all premiums paid, and your policy will be void from its Effective Date. IMPORTANT NOTICE: Please read your application attached to this policy. This policy is issued on the basis that the information shown on the application is correct and complete to the best of your knowledge and belief. Carefully check the application. Write to us within 30 days of the date you receive this policy if any information shown on it is not correct or complete. No associate (duly licensed agent) may change this policy or waive any of its provisions. THIS POLICY IS GUARANTEED-RENEWABLE TO AGE 70 SUBJECT. TO OUR RIGHT TO CHANGE PREMIUMS BY CLASS UPON ANY RENEWAL DATE. We guarantee you the right to renew this policy until the policy anniversary date .following your. 70th birthday by the payment of premiums at the rate in effect at the beginning of each term. We may change the established premium rate, but only if the rate is changed for all policies of this class. While this policy is in force, no change will be made in your class because of age or physical condition. "Class" means all policies of this form number and premium classification in your state that are then in force. If the established premium rate changes, we will notify you in writing at your last known address at least 30 days before the change becomes effective. PRE-EXISTING CONDITIONS Disability caused by aPre-existing Condition or re-injuries to aPre-existing Condition will not be covered unless it begins more than 12 months after the Effective Date of coverage. A Pre-existing Condition is a Sickness or an Injury for which medical advice or treatment was recommended by a Physician or received from a Physician within the 12-month period before the Effective Date of coverage. American Family Life Assurance Company of Columbus (AFLAC) Worldwide Headquarters: 1932 Wynnton Road, Columbus, Georgia 31999 Call toll-free 1-800-99-AFLAC (1-800-992-3522). Form A-57200-PA A57200PA.1 INDEX Insured ....................................................................................................... Policy Schedule Definitions .................................................................................................................. Part 1 Limitations and Exclusions ......................................................................................... Part 2 Uniform Provisions ..................................................................................................... Part 3 Benefits ...................................................................................................................... Part 4 Policy Schedule I wsuRED: Tanya J Gelb I TYPE OF COVERAGE: Individual POLICY NUMBER:. PA9651$3 MODE OF PAYMENT: Bi-Weekly PREMIUM: $20.68 If deductions from your pa check are made on a frequency other than the mode of payment shown above, the amount deducted from your paycheck will differ. COVERAGE: CSDIOK EFFECTIVE DATE: 02/15/04 CSDIOK SHORT TERM DISABILITY ELIMINATION PERIOD ACCIDENT: 7 DAYS SICKNESS: 14 DAYS BENEFIT PERIOD 12 MONTHS $20.68 MONTHLY BENEFIT PAYABLE: 14 UNITS = $1,400.00 In witness whereof, Aflac's president and secretary signed this policy in Columbus, Georgia, as of the policy Effective Date shown in the Policy Schedule. ~~'~ Joey M. Loudermilk, Secretary ~~O Daniel P, Amos, President Form A-57200-PA 2 A57200PA.1 This policy is a contract between you and AFLAC. READ YOUR POLICY CAREFULLY. Part 1 DEFINITIONS A. ADLs (Activities of Daily Living): activities used in measuring levels of personal functioning capacity. Normally, these activities are performed without Direct Personal Assistance, allowing personal independence in everyday living. The ADLs are: (1) Continence: Maintaining control of urination and bowel movements, including your ability to use ostomy supplies or other devices such as catheters; (2) Transferring: Moving between the bed and the chair, or the bed and a wheelchair; (3) Dressing: Putting on and taking off: ali necessary items of clothing; and/or medically necessary braces and artificial limbs usually worn; (4) Toileting: Getting to and from the toilet, getting on and off the toilet, and performing associated personal hygiene; (5} Eating: Performing aii major tasks of getting food into the body; and (6) Bathing: Getting into or out of the tub or shower and otherwise washing the parts of the body. B. BENEFIT PERIOD: the maximum number of days for which benefits can be paid for any one or Successive Periods of Disability. Each new Benefit Period is subject to a new Elimination Period. See the Policy Schedule for the Benefit Period you selected. For the purposes of this calculation, a month wil{ be defined as 30 days for which benefits are paid. See definition of Successive Periods of Disability. C. DIRECT PERSONAL ASSISTANCE: requiring direct physical assistance from another party to help you perform an ADL, each and every time you perform that acti ty, due to an inability to perform the entire activity alone with the supports and mechanical ai that are normally available to you. D. EFFECTIVE DATE: the date shown in the Policy Schedule. The Effective Date of this policy is not the date you signed the application for coverage. E. ELIMINATION PERIOD: the number of consecutive days at the beginning of your period of total disability for which no benefits are payable. See the Policy Schedule for the Elimination Period you selected. Each new Benefit Period is subject to a new Elimination Period. F. FULL-TIME JOB: a job at which you work 30 or more hours per week for pay or benefits. G. IMMEDIATE FAMILY: anyone related to you in the following manner: your spouse; brother or sister (includes stepbrother and stepsister); children (includes stepchildren}; parent(s) (includes stepparents); grandchildren; father-in-law or mother-in-law; and spouses, as app{icable, of any of these. H. INJURY: accidental bodily injury or injuries for which benefits are provided, sustained by the covered person, which are the direct and independent cause of the loss and occur while coverage is in force. See the Limitations and Exclusions provision and Pre-existing Conditions for Injuries not covered by this policy. Form A-57200-PA 3 A57200PA.1 I. ON-THE-JOB INJURY: an Injury which occurs while you are working at any job for pay or benefits. J. OFF-THE-JOB INJURY: an Injury which occurs while you are not working at any job for pay or benefits. K. PHYSICIAN: an individual who is legally qualified as a physician and licensed to practice medicine and who is operating within the scope of that license. The term "Physician" does not include: you or a member of your Immediate Family; or anyone who normally resides in your home or residence. L. SICKNESS: a sickness or disease of a covered person which is medically treated or diagnosed after the Effective Date of coverage and while coverage is in force. Illnesses, diseases or disorders that are medically treated or diagnosed within the 30-day period after the Effective Date will not be covered for 12 months from the Effective Date of coverage. See the Limitations and Exclusions provision and Pre-existing Conditions for Sicknesses not covered by this policy. M. SUCCESSIVE PERIODS OF DISABILITY: separate periods of disability, if due to the same or related condition and not separated by 180 days or more, will be considered a continuation of the prior disability. Separate periods of disability due to unrelated causes will be considered a continuation of the prior disability unless they are separated by your returning to work at a Full-Time Jab for at least 1 (one) full day, during which you are performing the material and substantial duties of this job and are no longer qualified to receive disability benefits. N. TOTALLY DISABLED: your continuing inability to perform the material and substantial duties of your Full-Time Job. You also must be under the care and attendance of a Physician for your condition. Part 2 LIMITATIONS AND EXCLUSIONS We will not pay benefits for a disability that is caused by or occurs as a result of you: A. Giving birth within the first 10 months of the Effective Date of this policy as a result of a normal pregnancy (including caesarean). Complications of pregnancy wi{I be covered to the same extent as a Sickness; B. Being intoxicated or under the influence of any narcotic unless administered on the advice of a Physician; C. Mountaineering using ropes and/or other equipment, parachuting or hang gliding; D. Committing or attempting to commit a felony or engaged in any illegal occupation; or being incarcerated in any type penal instifution; E. Attempting suicide or intentionally self-inflicting bodily Injuries; F. Having cosmetic surgery or other elective procedures except as necessitated by a covered Sickness or Injury; or dental treatment except as a result of Injury; G. Loss sustained or expenses incurred while a member of the armed forces of any nation, or losses sustained or expenses incurred as a result of enemy action or act of war, whether declared or undeclared; H. Participating in any form of flight aviation other than as afare-paying passenger in a fully licensed passenger-carrying aircraft; Form A-57200-PA 4 A57200PA.1 f. Participating in any legally scheduled speed contest; J. Being Totally Disabled while outside the territorial limits of the United States or, if outside the United States, the territorial limits of the place where your policy was issued; or K. Being Totally Disabled due to any of the following: bipolar affective disorder (manic depressive syndrome), delusional (paranoid) disorders, psychotic disorders, somatoform disorders (psychosomatic illness), eating .disorders, schizophrenia, anxiety disorders or mental illness without demonstrable organic disease. This policy will pay, however, for covered disabilities resulting fram Alzheimer's disease, or similar forms of senility or senile dementia (without a requirement of demonstrable organic disease}, which made itself known while coverage is in force. Benefits will only be paid for ane disability at a time even if the disability is caused by more than one Sickness, more than one Injury, or Sickness and Injury. Part 3 UNIFORM PROVISIONS A. ENTIRE CONTRACT; CHANGES: This policy together with the application, endorsements and additional benefits, if any, constitutes the entire contract of insurance. Any change in this policy shall not be valid until approved in writing by the secretary and president of AFtAC at our worldwide headquarters. Any such change must be noted on or attached hereto. No associate (duly licensed agent) has the authority to change this policy or to waive any of its provisions. B. TIME LIMIT ON CERTAIN DEFENSES: (1) After two years fram the Effective Date of this policy, any misstatements, except fraudulent misstatements, made by you in the application shall not be used to void the policy or to deny a claim for disability commencing after the expiration of such two-year period. (2) Any claim for loss commencing after 12 months from the Effective Date of coverage shall not be reduced on the-grounds that a physical condition, not excluded from coverage by name or specific description, had existed prior to the Effective Date of coverage. Coverage for Pre-Existing Conditions will not be reduced or denied after the policy has been in force 12 months. C. TERM: The term of this policy begins at 12:00 o'clock midnight, standard time, at the place where you reside on the Effective Date shown in the Policy Schedule. It ends at 12:00 o'clock midnight, at the same standard time, on the first renewal date. Each renewal term ends at 12:00 o'clock midnight, at the same standard time, on the next following renewal date. Renewal dates are determined by the mode of payment. The mode of payment for the original term of this policy is shown in the Policy Schedule. Qn annual premium will maintain this policy in force for 12 months, semiannual for six months, quarterly for three months and monthly for one month. If you fail to pay your premium by the end of the grace period, coverage under this policy will terminate. if you are receiving short-term disability benefits on the date coverage would otherwise terminate, coverage under this policy-will be extended to the earlier of the date you are no longer Totally Disabled or to the end of the Benefit Period, whichever occurs first. D. MISSTATEMENT OF AGE: If your age has been misstated on the application, the benefi#s will be those the premium paid would have purchased at the correct age. We will refund all unearned premiums paid, less any benefits -paid, if your misstated age at the time of application was outside the age limits for this policy. E. REINSTATEMENT: You may request reinstatement of your policy from your assaciate (duly licensed agent) or AFLAC. If your policy has lapsed for nonpayment of premium and we accept a later payment without requiring an application, your policy shall be reinstated. If we require a written application and provide you with a conditional receipt, your .policy will be reinstated upon our approval of the application. If we do not notify you of our disapproval in writing within 45 days of the date of your application, your policy shall be deemed reinstated. The reinstated policy shall cover only loss resulting from accidental Injury that is medically Form A-57200-PA 5 A572OOPA.1 treated or diagnosed and that takes place after the date of reinstatement and loss resulting from Sickness that is medically treated or diagnosed and that begins more than 10 days after the date of reinstatement. In all other respects, you and AFLAC shall have the same rights as provided under the policy immediately before the due date of the defaulted premium subject to any provisions added in connection with the reinstatement. Any premium accepted in connection with a reinstatement will not be applied to any period prior to the date of reinstatement. F. GRACE PERIOD: A grace period of 31 days will be granted for the payment of each premium falling due after the first premium. During the grace period, the policy shall continue in force. G. MISSTATEMENT OF OCCUPATION OR INCOME: If your occupation has been misstated, the benefits will be those that the premiums paid would have purchased for your correct occupation. If your income has been misstated, the benefit payable will be that which would have been allowed for your true income level and any overpayment of premium will be refunded. H. NOTICE OF CLAIM: Written notice of claim must be given within 60 days after a covered loss starts or as soon as reasonably possible. The notice can be given to us at AFLAC or to your associate (duly licensed agent). Notice should include your name and policy number. I. CLAIM FORMS: When we receive a notice of claim, we will send you forms for filing proof of loss. If the forms are not given to you within 10 working days, you will meet the proof-of-loss requirements by giving us a written statement of the nature and extent of the loss within the time limit stated in the Proof of Loss provision. J. PROOF OF LOSS: Written proof of loss must be furnished to AFLAC at our worldwide headquarters within 90 days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time. However, such proof must be furnished as soon as reasonably possible and in no event (except in the absence of legal capacity), later than one year from the time proof is otherwise required. K. TIME OF PAYMENT OF CLAIMS: All benefits payable under this policy will be paid immediately upon receipt of written proof of loss. L. PAYMENT OF CLAIMS: All benefits will be payable to you unless you assign them. Any accrued benefits unpaid at your death will be paid to your estate. M. LEGAL ACTIONS: Any legal action may not be brought to recover on this policy within 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. Any such actions shall not be brought after six years from the time written proof of loss is required to be furnished. N. CONFORMITY WITH STATE STATUTES: Any provision of this policy that, on its Effective Date, is in conflict with the statutes of the state in which the insured resides on such date is hereby amended to conform to the minimum requirements of such statutes. O. PHYSICAL EXAMINATIONS: At our expense, we shall have the right and opportunity to have you examined by a Physician or other appropriate duly licensed medical professional of our choice as often as it may be reasonably required during the pendency of a claim. P. ASSIGNMENT: We will not assume responsibility for determining the validity of an assignment of your benefits to a provider of services. No such assignment of benefits will be recognized until we have received notice of it at our worldwide headquarters. Q. OTHER INSURANCE WITH AFLAC: If you are covered under more than one AFLAC policy with disability benefits, only one AFLAC disability policy or rider chosen by you, your beneficiary or your estate, as the case may be, may remain in force. We will pay benefits for Form A-57200-PA 6 A57200PA.1 claims that may have been incurred since their respective Effective Dates. We will also return all premiums paid for the canceled policy or rider from the date of duplication, less any benefits paid under these policies or riders from such date. R. ILLEGAL OCCUPATION: AFLAC shall not be liable for any Ions to which a contributory cause was the insured's commission or attempt to commit a felony, or to which a contributing cause was the insured being engaged in an illegal occupation. S. INTOXICANTS AND NARCOTICS: AFLAC shall not be liable for -any loss sustained or contracted in consequence of the insured being intoxicated or under the influence of any narcotic, unless administered on the advice of a Physician. Part 4 BENEFITS We will pay the following benefits as applicable if your disability is caused by a covered Sickness or covered Off-the-Job Injury. Disability Benefit-for Sickness and Off-the-Job Iniury: A. Working Full-Time: While you are working at a Full-Time Job and while coverage is in force, we will insure you as follows: If your covered Sickness or covered Off-The-Job Injury causes you to become Totally Disabled within 90 days of your covered Sickness or covered Off-the-Job Injury, we will pay you one-thirtieth of the benefit shown in the Policy Schedule for each day you remain Totally Disabled. This benefit is payable up to the Benefit Period you selected and is subject to the Elimination Period, as shown in the Policy Schedule. Also see the Uniform Provision titled Term and the definitions of Benefit Period and Successive Periods of Disability. B. Not Working Full-Time: If you are not working at a Full-Time Job and while coverage is in force, we will insure you as follows: If you are unable to perform two or more ADLs (Activities of Daily Living) within 90 days due to a covered Sickness or covered Off-the-Job Injury, as certified by a Physician, and you require Direct Personal Assistance to perform such ADLs, we will pay you one-thirtieth of the benefit shown in the Policy Schedule for each day you can not perform such ADLs. This benefit is payable up to the Benefit Period you selected and is subject to the Elimination Period, as shown in the Policy Schedule. Also see the Uniform Provision titled Term and the definitions of Benefit Penod and Successive Periods of Disability. Benefits will only be paid for one disability at a time even if the disability is caused by more than one Sickness, more than one Injury, or Sickness and Injury. We reserve the reasonable right to meet with you during the pendency of a claim or use an independent consultant and Physician's statement to determine whether you are Totally Disabled, or are unable to pertorm two or more ADLs and require Direct Personal Assistance. You must be under the care and attendance of a Physician for these benefits to be payable. Benefits will cease on the date of your death. IF YOU HAVE ANY OTHER DISABILITY POLICIES OR RIDERS IN FORCE WITH US, ONLY ONE DISABILITY BENEFIT WILL BE PAYABLE UNDER THIS POLICY. IMPORTANT: This policy pays benefits for Short-Term Disability due to Sickness or Off-the-Job Injury. Read it carefully. Form A-57200-PA 7 A57200PA.1 ~~N~~ ~ Plan Highlights • Selection of: -monthly benefit amount -elimination period -benefit period • Guaranteed-renewable to age ?a • Fenefits paid directly to you unless you choose otherwise Benefits paid_regardless of any other insurance We take many things for granted - until they're gone. For #oo many of us, these Include our ability to earn an Income. We insure our Ilves, our homes, our automobNes -but we often forgef the asset that supports our lifestyles. C{)NSIDER THE FACTS PROTECT YOUR INCOME According to the 2001 edition of Injury Facts, published by the National AFIAC's Personal Short-Term Disability insurance may help provide Safety Council ,.. you with a source of income it you become disabled due to a sickness • While someone makes a !0•minute safety speech, about 3901ndlvlduals will suNera disabling Injury. • An average of 2,340 disabling 1nJurlea occurs every hour during the year. CONSIDER THr I'OSSIBII.ITTES If a disability temporarily keeps you ftom earning your full-time Income, how will you pay your bills during your recovery? • Wlll you have to use some of yoursavings? • Wlil you have to sell some of your assets? • Will you have to try to borrow money? FULLY PORTAT3LI~~ When you own AFCAC's Personal Short-Term Disability Insurance, your policy stays with you regardless of job changes. GUARANTEED-RENEWABLE TO ACE 70 We guarantee-you the right-to renewthis policy untitthe poNcy- anniversary date foilovring your 10th birthday by payment of premiums at the rate in effect at the beginning of each term. You can never be singled out for a rate increase. Rates can be changed only if the rate is changed for all polices at this class. While this policy Is In force, no change will ba made because of your age or physical condition. or off-the job injury.* • Mo»thly ReneNts: From 6500 b X3,000, subject to Income requirements • 8eneflt Periods: 8 months, !2 months or 24 months • El1minaNon Periods: Accident/Sk;kness 0/1', 0%14, 7N4, 0/30, 30/30, Bt1VB0, 90/80 or i80M80 days * If you are working at afull-Nme Job whNe coverage Is in force and you become totally disabled within 90 days due to a covered sickness or a covered off-the Job InJury, we will pay you one-thlriieth of the benefit shown in the Polcy Schedule for each day you remain totally disabled. If you are not working at a tuN-time job while coverage is in force and you are unable to perform two or more ADIs (acNvlNes of daily Nving) within 90 days due to a covered s~kness or a covered off-the job injury as certified by a physician end you require direct personal assista<ic~ to perform such ADCs, we will pay you one-thirttafh of the benefit shown in the Policir Schedule~or ~ac~h-day you cannot perform-such ADCs: These beriefNS are payable up to the benefit period you select, aubjact to the elimination period shown in the Policy Schedule. Full-time joab is defined as a job that you, the Insured, work at 30 or more hours per week for pay or benefits. This brochure Is for ltluatratlon pmpoaes only. Simply put, AFi!.AC's Personal Short-Term Disabilify Insurance is your personal income protection plan. It is designed to help close the financial gap that can be created by your being dfsebled. PIIOVISIONS OF COVER,A(IE EFFECTIVE DATE Separate periods of disability, if due to the same or a related oonditlon and not The eHectivve date of the policy and riders wiltbe the date shown in the Pdlcy separated by 180 days or more, will be considered a continuation of the prior Schedule, not the date the application Is signed. disability. Separate periods of diaat>iNty due to unrelated causes will be payroll rate may be retained after one month's premium payment on payroll considered a continuation of the prior disability unless they are separated by deduction ' your retumfng to work at a full-tlme Jab for at least one tu11 day, during whtch you are performing the malarial and substantial duties of yourjob and are no longer ACTMTIES OF DAILY LMNG quaGBed to receive disability benefits. The benefit period Is the ma~dmum number of days for which benefits can be paid for any one or suokesslve periods of disability. Each new benefit period is subject to a new eliminali~on period. For the purposes of this cakxrlation, a month wig be defined as 30 days for which benefits are paid. Benefits will be paid for only one disability at a time even ft the disability is caused by more than one sickness, more than one InJury, a sk~cness and inJury. AFLAC reserves the right to meet with you during the pendency of a claim or to • Continence: maintaining control of urfiration and bowel mokremants, Mctuding yourablrity to use ostomy suppires orotherdevkas such as catheters • Transferring: moving between a bed and a chair, or a bed and a wheekhai~ • Dressing: putting on and taking ofl aN necessary ttems of cbthing andJor medkaNy necessary braces and adifrctal limbs usuar<y wom • Toffettng: getting to snit from the toilet, getting on ar-d olf the forget, and perfoming associatedpersonathyglene • Eating; performing aN maJor (asks of getting food into the body use an independent consultant and physician's statement to determine whether • Bathing' ~~~ krto or out ofthe tub or shower and otherwise washUrg the parts of the body you are totally drsabled, or whether you are unable to perform two or rare ADts and require direct personal assistance. You must be under the care and TOTALLY D{ SABLED attendance of a physldan for these benefits to be payable. ~enefiis will cs3ase 7'ofaly disabFsd is defined as your contlnuing inability to perform the material and on the date you are no longer totally disabled or at your death, If you have any substantal duties of your fuli•tima Job. You moat also be under the care and other disability benefit in force with AFLAC, only one disability benefit wiN be attendance of a physiaan for your condition. payable under this policy. Without it, no insurance is com~rolete. PRE-EXISTING CONDITIONS Disabllirycaused by apre-exislingcondition or re-injuries to apre-existing condition will not be covered unless it begins more than 12 months after the effective date of coverage. Apra-existing condltron is a sickness or an inJury to which medical advice or treatment was recommended by a covered person which is medicany treated or diagnosed after the effective date of coverage and while coverage is in face.l8nesses, diseases a disorders that are medicalty treated or diagnosed within the 3tklay period after the effective date will not be covered for 12 months from the eflecHve physician or received from a physidan within the 12-month period before date of coverage. the effective date of coverage. A sickness is a sickness or disease of a WHAT IS NOT COVERED We wiU not pay bf;nefits for a disability that is caused by or occurs as a result of Jrour.~ • Giving both within the Brst l0 monfhhs of the affective date of thk policy as • Parficlpating !n any legally scheduled speed contest; a result of a nor-nal pregnancy t<x~uding Caesarean (comptkatlons of • Being totally disabled while outside the terrltodal !!mlts of the Unied p-egr-ancy wiR be cowered to the same extent as a sxkness); States or, iJ outside fhe United States, outside the territoda! limits of • Bemginfoxkatedorundertheinifuenoeofanynarcofkunless administered on the advice ofa physician; • Mountaineering using ropes and/orotherequipment, parachuting orhang 9~~9~ • Commining oraftemptinglo commit a fe,bnyorengaged in anyiaega! occupation, or being incarcerated ~ any type pane! InsWutlon; • Adempting su~ide or Mtentlor-aNy selfanpkbng bodily fiJuries; • Hevbig cosrneiic surgery or other efectiwe procedures except as neosssitated by a cowered skkness or inJury or havuxl dental treatment 8xcapt as a result oflglury; • Loss sustained or expenses Incurred while a member of the armed forces of any nation, or losses sustained or expenses lncuired as a result of enemy action or act of war, whether declared or undeclared; • Partkipating to any form of flight aviation other than as stare-paying passenger in a lolly iicensedpassenger-carrying alrcrall; the place where your policy wee issued; • Being btaily disabled due to any of the lollowing: bipolar affective dlsom'er (mank depressive syndrome), delusional (paranoid) dlsorc/ers, psychotic dlsoMers, somatoform disorders (psychosomatic Jllness), eating disorders, schizophrenia, anxiety disorders or mental Illness without demonstrable organk; disease. This po!x;y will pay, however, for covered dlsabllltles resulting from Ahheimer's disease, or slmNar forms of senility or senile dementia (w~hout a requirement of demonstrable organic disease), whkh made Itself known wh!!e coverage !s In force. Benefits will only be paid for one disability at a time even If the dleablllty Is caused by more than one sickness, more than one Injury, or sickness and injury. Reler to policy and Nders for complete details, !lmltadons and exclusions. !f you're uncertain about your ne d for disabili#y insurance .. . take a .took at These statistics! • About 17.2 million people, or 9.9% of the 1998 working-age U.S. population (16-64 years old), have a disability that prevents or limits work.' • A disabling injury occurred every 1.5 seconds in 2000.2 • In 2000, 7,100,000 disabling injuries occurred in the home, compared to only 29,500 fatalities. This amounts to a disabling injury in the home every 4 seconds? • Among working-age people with severe disabilities, only 30.3% receive Social Security disability or retirement income.' 'Stoddard, S., Jans, L., Ripple, J., and Kraus, L. (1998), Chartbook on Work and Disabibty in the UnAed States, 1998, an InfoUse Report, Washington, D.C.: U.S. National tnstitule on Dlsabilily and Rehabflllalion Research, pp. 7 8 Ai ' National Safety Counal, Report on Jnjuries in America, 2001 y( ,: s-_ ti?h'r .:'~ +:3!'~~? r:. err ~ ~ %i. r-Y~ ~~ } :~'•~u~~+. =: - -- zs--.^~ .'fi='x r„~`--rr. . • "F'io.-- _' r , .. ~ `_s iv" k" :';"p.' k ate. a. :x . : s An ~intenfiati ~~I° ettr ~$ ~ tli~ ~1e ~ ~iiltbri~ ea I~.`Vu - ~= ~ ~. has.~a - F; -• .''.f/l.~.i t,„:3.i_~{s -~ ~ :~Je ~Y ~'" tita• ..Y x'.53 ~'~~i:3.~ >.. ~~.r. . . ~ _, -strong-~~pr~,(.f.~~y~~1g#~-~lit~assets-a ~ ~~~~ - .° performance;-Or~r~eontlnuetl: success isder!~ted from a`pFidosophy~tl'at~prov~e~'T ~; safety for our.policjrhgld~~, With all of the uncertainty rl=tlj~e ~insurarice indusfry, it~is vital that employees select an insurance carrier that wlli be there for them in the long. run: Mare than ever, financial strength and stability are the barometers by which insurers are measured. Our financial strength prepares us to meet your needs! To protect your income .., is to protect your financial security. .~"~. :` -~s i Without it, no insurance is complete. AFLAC, the insurance industry leader in cafeteria plan services; is ... • A Fortune 600 company with assets exceeding $40 billion insuring more than 40 million people worldwide. • Rated "AA" in insurer financial strength by Standard & Poor's (December 2000), "Aa2 (Excellent)" in insurer financial strength by Moody's Investors Service (July 2002}, "A+ (Superior)" by A.M. Best (July 2001) and "AA" in insurer financial strength by Fitch, Inc. (November 2001} ** • A world leader in guaranteed-renewable insurance with more than 200,400 national payroll accounts. • Number one inguaranteed-renewable accident and cancer insurance sales. • Outstanding in claimant recommendations as validated by an Opinion Research Corporation poll indicating that 9 out of 10 claimants agree that AFLAC paid their claims fairly and promptly, and they would recommend the purchase of cancer insurance to others (July 2001}. • Uncompromising in fast, efficient service. Our toll-free line puts you in touch with adecision-maker immediately. • Named by~brtune magazine to its list of "The 10013est Companies to Work for in America" for the fourth consecutive year in January 2002. * Employers Council on Flexible Compensat4on (ECi^C), 3/00 -** Iiuttngs refer only to t7te overall financictd status n~ AFZAC and are not reeommendat~ons of spectf~c policy provisions, rates or practices. 1 ~•8OO•~V9-AFLAV (1-800-992-3522) En espanol: 1-800-SI-AFLAC (~-soo-Paz-s5zz~ Your local AFLAC representative Visit our Web site at vvww.aflac.com. American Family Life Assurance Company of Columbus (AFLACI • Worldwide Headquarters: Columbus, Georpla 31999 X~\\~\~ American Family Life Assurance Company of Columbus (AFLAC) Worldwide Headquarters, 1932 Wynnton Road Columbus, Georgia 31999 TOLL-FREE 1-800-99-AFLAC (1-800-992-3522) SHORT-TERM DISABILITY COVERAGE Outline of Coverage for Policy Form A-57200-PA THIS IS NOT A MEDICARE SUPPLEMENT POLICY. If you are eligible for Medicare, review the Guide to Health Insurance for People with Medicare available from AFLAC. 1. Read The Policy Carefully. This outline of coverage provides a brief description of the important features of the policy. This is not the insurance contract and only the actual policy provisions will control. The policy itself sets forth in detail the rights and obligations of both you and AFLAC. It is, therefore, important that you READ THE POLICY CAREFULLY! 2. Short-Term Disability Coverage. The policy is designed to provide coverage for certain losses that result from disability, subject to any limitations in your policy. It does not provide coverage for basic hospital, basic medical-surgical or major medical expenses. 3. Benefits. The following benefits are a part of the policy. We will pay the following benefits as applicable if your disability is caused by Sickness or Off-the-Job Injury. Disability Benefit for Sickness and Off-the-Job Iniury: A. Working Full-Time: While you are working at a Full-Time Job and while coverage is in force, we will insure you as follows: If your covered Sickness or covered Off-The-Job Injury causes you to become Totally Disabled within 90 days of your covered Sickness or covered Off-The-Job Injury, we will pay you one-thirtieth per day of $_ for each day you remain Totally Disabled. This benefit is payable up to months (Benefit Period) and is subject to an Elimination Period of days. Also see the Uniform Provision titled Term and the definitons of Benefit Period and Successive Periods of Disabilities in your policy. B. Not Working Full-Time: If you are not working at a Full-Time Job and while coverage is in force, we will insure you as follows: If you are unable to perform two or more ADLs (Activities of Daily Living) within 90 days due to a covered Sickness or covered Off-The-Job Injury, as certified by a Physician, and you require Direct Personal Assistance to perform such ADLs, we will pay you one-thirtieth per day of $ for each day you can not perform such ADLs. This benefit is payable up to months (Benefit Period) and is subject to an Elimination Period of days. Also see the Uniform Provision titled Term and the definitons of Benefit Period and Successive Periods of Disabilities in your policy. Benefits will only be paid for one disability at a time even if the disability is caused by more than one Sickness, more than one Injury, or Sickness and Injury. We reserve the right to meet with you during the pendency of a claim or use an independent consultant and Physician's statement to determine whether you are Totally Disabled, or are unable to perform two or more ADLs and require Direct Personal Assistance. You must be under the care and attendance of a Physician for these benefits to be payable. Benefits will cease on the date you are no longer Totally Disabled or your death. PRE-EXISTING CONDITIONS: Disability caused by aPre-existing Condition or re-injuries to a Pre- existing Condition will not be covered unless it begins more than 12 months after the Effective Date of Form A-57225-PA 1 A57225PA.2 coverage. APre-existing Condition is a Sickness or an Injury for which medical advice or treatment was recommended by a Physician or received from a Physician within the 12-month period before the Effective Date of coverage. 4. OPTIONAL BENEFITS: Disability Benefit for On-the-Job Injury: (Form A 57250-PA) Applied For: ^ Yes ^ No A. Working Full-Time: While you are working at a Full-Time Job and while this coverage is in force, we will insure you as follows: If your covered On-the-Job Injury causes you to be Totally Disabled within 90 days of your Injury, we will pay you one-thirtieth per day of $ for each day you remain Totally Disabled. This benefit is payable up to months (Benefit Period) and is subject to an Elimination Period of days. B. Not Working Full-Time: If you are not working at a Full-Time Job and while coverage is in force, we will insure you as follows: If you are unable to perform two or more ADLs (Activities of Daily Living) within 90 days due to a covered On-the-Job Injury, as certified by a Physician, and you require Direct Personal Assistance to perform such ADLs, we will pay you one-thirtieth per day of $ for each day you can not perform such ADLs. This benefit is payable up to months (Benefit Period) and is subject to an Elimination Period of days. Also see the Uniform Provision titled Term and the definitions of Benefit Period and Successive Periods of Disability in your policy. IF YOU HAVE ANY OTHER DISABILITY POLICIES OR RIDERS IN FORCE WITH US, ONLY ONE DISABILITY BENEFIT WILL BE PAYABLE UNDER THIS POLICY. IMPORTANT PROVISIONS OF YOUR POLICY LIMITATIONS AND EXCLUSIONS. We will not pay benefits for a disability that is caused by or occurs as a result of you: A. Giving birth within the first 10 months of the Effective Date of this policy as a result of a normal pregnancy (including caesarean). Complications of pregnancy will be covered to the same extent as a Sickness; B. Being intoxicated or under the influence of any narcotic unless administered on the advice of a Physician; C. Mountaineering using ropes and/or other equipment, parachuting or hang gliding; D. Committing or attempting to commit a felony or engaged in any illegal occupation; or being incarcerated in any type penal institution; E. Attempting suicide or intentionally self-inflicting bodily Injuries; F. Having cosmetic surgery or other elective procedures except as necessitated by a covered Sickness or Injury; or dental treatment except as a result of Injury; Form A-57225-PA 2 A57225PA.2 G. Loss sustained or expenses incurred while a member of the armed forces of any nation, or losses sustained or expenses incurred as a result of enemy action or act of war, whether declared or undeclared; H. Participating in any form of flight aviation other than as afare-paying passenger in a fully licensed passenger-carrying aircraft; I. Participating in any legally scheduled speed contest; J. Being Totally Disabled while outside the territorial limits of the United States or, if outside the United States, the territorial limits of the place where your policy was issued; or K. Being Totally Disabled due to any of the following: bipolar affective disorder (manic depressive syndrome), delusional (paranoid) disorders, psychotic disorders, somatoform disorders (psychosomatic illness), eating disorders, schizophrenia, anxiety disorders or mental illness without demonstrable organic disease. This policy will pay, however, for covered disabilities resulting from Alzheimer's disease, or similar forms of senility or senile dementia (without a requirement of demonstrable organic disease), which made itself known while coverage is in force. Benefits will only be paid for one disability at a time even if the disability is caused by more than one Sickness, more than one Injury, or Sickness and Injury. Renewability. The Policy is guaranteed renewable to age 70 by payment of the premium in effect at the beginning of each renewal period. Premium rates may be changed only if changed on all policies of the same form number and class in force in your state. RETAIN FOR YOUR RECORDS. THIS OUTLINE OF COVERAGE IS ONLY A BRIEF SUMMARY OF YOUR POLICY. THE POLICY ITSELF SHOULD BE CONSULTED TO DETERMINE GOVERNING CONTRACTUAL PROVISIONS. Form A-57225-PA 3 A57225PA.2 ~XH~~1~ I Application for Short-Term Disability Insurance (Form A-57200-PA) UC New Application to American Family Life Assurance Company of Columbus (AFLAC) ^ Conversion Worldwide Headquarters: Columbus, Georgia 31999 Policy Number: PA965183 Please Print in Black Ink - To Be Completed by Applicant Applicant's Name _MASCIONI TANYA J Last First Applicant's SS# _199-64-4224 Address 308 SPRING LANE Street or Post Office Box MI City _ENOLA State PA ZIP 17025, Home Telephone {717)728-3781 Business Telephone ((717)589-3117, DOB 06125/1975 Sex F Month/DayJYear Apt.# Best Time to Cail 100000 Name of Employer_GREENWOOD SCHOOL DISTRICT Type of Business_SCHOOL DISTRICT Job Duties_GUIDANCE Job Title_GUIDANCE COUNSELOR Occupation Code Occupation Class A Industry Code A (Completed by worldwide headquarters) (Completed by associateJagent) (Completed by associate/agent) TO BE COMPLETED BY AFLAC ASSOCIATE/AGENT PAYROLL MODES: Employee No. ^ 01 Weekly Pre-Tax ^ Dept. No. [X 01 Biweekly ^ 03 Quarterly After-Tax IX Billable Premium $ _41.36 ^ 01 Semimonthly ^ 06 Semiannual Premium Collected $ _PR ^ 01 Monthly ^ 12 Annual Associate/Agent's No. Y8998 Sit. Code 0 CHECK COVERAGE DESIRED: Class: IX A ^ B ^ C Benefit Periods: ^ 3 Months ^ 6 Months IX 12 Months ^ 24 Months Elimination Periods: ^ 0/7 Days ^ 0/14 Days lX 7/14 Days Accident/Sickness ^ 0/30 Days* ^ 30(30 Days* {* not available with 3-month Benefit Period) ^ 60/60 Days** ^ 90/90 Days** (**not available with 3- or 6-month Benefit Period) ^ 180/180 Davs***' (***not available with 3- or 6- or 12-month Benefit Periodl Total # of Units: Premium: [X Base Polic Form A-57200-PA : 14 41.36 ^ On-the-Job In'u Rider Form A-57250-PA NOTE: Each unit is equal to $100 monthly. Total Premium: 41.36 TO BE COMPLETED BY APPLICANT 1. Do you have any of AFLAC's accident policies with disability benefits? If yes, please complete the ^ Yes XI No Supplemental Notification section at the end of this application and be aware that you cannot have this policy without canceling those disability benefits with AFLAC. 2. Is the purchase of this coverage intended to replace any other disability insurance now in force? ^ Yes IX No If yes, please read and sign the Replacement Notice provided by your associate/agent and provide ^ Not policy number here: applicable 3. Do you have any other individual disability coverage in force with another company? ^ Yes IX No If yes, please provide name of company, benefit amount and elimination period here: Form A-57205-PA 1 A57205PA.2 . PLEASE COMPLETE QUESTION 4 IF APPLYING FOR MORE THAN $700 OF ANY ONE MONTHLY DISABILITY BENEFIT: w. ust your annum income, wimout overnme sunless contractual), for your full-time job foc the current year. Annuallncome: X37000.00 { understand that this information will be verified at the time of claim. PLEASE COMPLETE ALL OF THE FOLLOWING QUESTIONS: 5. Do you work fewer than [30] hours per week in your primary (fu{I-time) occupation with the employer ^ Yes IXI No listed on the first page of the application? 6. Have you been charged with driving under the influence of alcohol or any narcotic within the last 12 ^ Yes ~(I No months or been charged two or more times within the last five years? 7. Are you currently on leave or not working due to sickness, maternity or injury? ^ Yes IXI No 8. Are there any material or substantial duties of your job that you are unable to perform due to ^ Yes n(I No sickness, maternity or injury? 9. Is your current annual income less than [$12,000}, without overtime (unless contractual}, for your ^ Yes IXI No primary occupation? 10. Has a member of the medical profession ever medically diagnosed you with or ever medically ^ Yes Xl No treated you for any of the following: • stroke or TIA systemic lupus • heart valve replacement chronic fatigue syndrome • vascular insufficiency (circulatory problems) rheumatoid arthritis •insulin-dependent diabetes multiple sclerosis • emphysema Crohn's disease • chronic liver disease regional enteritis/ileitis • chronic hepatitis (other than Type A) diverticulosis • fibromyalgia ulcerative colitis 11. Have you ever been medically diagnosed with acquired immune deficiency syndrome (AIDS) by a ^ Yes IXI No member of the medical profession or have you tested positive for HIV (human immunodeficiency virus)? 12. In the past five years, has a member of the medical profession medically diagnosed you with or ^ Yes XI No medically treated you for cancer (other than non-melanoma skin cancers)? 13. In the past 24 months, has surgery been performed for any of the following or has a member of the D Yes IX No medical profession medically diagnosed you with or medically treated you for any of the following: • heart attack coronary bypass surgery drug or alcohol abuse • congestive heart failure sciatica kidney disease • angina carpal tunnel syndrome (not including kidney stones} • coronary angioplasty (unless surgically corrected) 14. Within the last six weeks, have you taken prescribed pain medication for injury, disease or disorder ^ Yes XI No of the back, neck or joint(s)? If you answered "yes" to Question 5, additional underwriting may be required. If you answered "yes" to any one of Questions 6 through 14, a policy will not be issued; therefore, i do not submit this a lication. 15. Have you received disability benefits or claimed workers' compensation in the last five years? ^ Yes XI No 16. In the past 12 months, have you missed five consecutive days or 10 total days of work due to your ^ Yes XI No sickness or injury (not related to pregnancy)? 17. In the past 12 months, have you been confined in a hospital as an inpatient (not including ^ Yes DiJ No confinement due to pregnancy)? 18. In the past 12 months, has a member of the medical profession medically diagnosed you with or ^ Yes DU No medically treated you for any of the following: • chronic bronchitis back, neck or joint injury or disorder • asthma hypertension If you answered "yes" to any one of Questions 15 through 18, you must complete Item 22 and provide details in Item 23. Form A-57205-PA 2 A57205PA.2 PLEASE COMPLETE QUESTIONS 19 THROUGH 22 IF APPLYING FOR MORE THAN 20 UNITS OF ANY ONE MONTHLY DISABILITY BENEFIT: ~ 19, During the past 12 months, have you had any surgical procedure or have you been advised by a physician to have tests, treatment or surgery that has not yet been done? ^ Yes ^ No 20, During the past 24 months, for other than routine checkups, have you been medically treated for any other illness/injury or have you had any medical/surgical treatment other than those listed ^ Yes ^ No above? 21. Do you have any grou disability income coverage in force? If yes, please list your monthly benefit ^ Yes ^ No amount(s)/percentages): and your elimination period: If you answered "yes" to any one of Questions 19 through 21, additional underwriting may be required. If you answered "yes" to any one of Questions 19 or 20 you must complete Item 22 and rovide details in Item 23. 22. Within the last six weeks, have you been prescribed any medication by a physician or ^ Yes ^ No taken any prescription medication (not including prescription contraceptives)? If yes, please provide complete information be ow. Medication name Dosage Frequency Date first Reason rescribed Your Physician's Name: Phone Number: If no regular physician, physician last seen Address Date last seen by physician: Reason for last visit: 23. (Details to Questions 15 - 20) Onset Surgery Performed? Name and Address of Physician Conditions mo r es no date and Hos ital Question 15 Question 16 Question 17 Question 18 Question 19 Question 20 Form A-57205-PA 3 A57205PA.2 • APPLICANT'S STATEMENTS AND AGREEMENTS 24. I understand that the Effective Date of the policy will be the date recorded in the Policy Schedule by AFLAC Worldwide Headquarters. 25. 1 acknowledge receipt of, if applicable: ^ Replacement Notice ^ Guide to Health Insurance for People With Medicare IX Outline of Coverage ^ Fair Credit Reporting Notice 26. I understand that: (1) the policy of insurance I am now applying for will be issued based upon the written answers to the questions and information asked for in this application and any other pertinent information AFLAC may require for proper underwriting; (2) AFLAC is not bound by any statement made by me, or any associate/agent of AFLAC, unless written herein; (3} the associate/agent cannot change the provisions of the policy or waive any of its provisions either orally or in writing; (4) the policy together with this application and endorsements or riders, if any, is the entire contract of insurance; and (5) no change to the policy wil! be valid until approved by AFLAC's secretary and president and noted in or attached to the policy. I understand that coverage is not provided for a sickness or an injury for which medical advice or treatment was medically recommended by a Physician or received from a Physician within the 12-month period before the, Effective Date of coverage. SUPPLEMENTAL NOTIFICATION COMPLETE IF YOU ARE REPLACING/TERMINATING EXISTING AFLAC DISABILITY COVERAGE. 1, , am applying for AFLAC's short-term disability policy. I currently have disability benefits under AFLAC accident/disability policy number I understand that I must cancel existing AFLAC disability coverage in order to purchase this short-term disability policy. Please cancel: ^ The disability riders attached to my accident policy; but keep my accident policy in force. ^ Cancel my entire accident policy (with Disability Benefits) number I understand that I will be terminating benefits provided for in my current accident policy that are not provided for in the new short-term Form A-57205-PA 4 A57205PA.2 ' AUTHORIZATION TO OBTAIN INFORMATION I authorize the following to give information (defined below) to American Family Life Assurance Company of Columbus (AFLAC) or any person or group acting on their part: any medical professional, any medical care institution, insurer, reinsurer, government agency, consumer reporting agency or employer. Information means facts of a medical nature in regard to my physical or mental condition, employment, other insurance coverage, or any other nonmedical facts. I understand that this information will be used by AFLAC to determine eligibility for insurance and may be used to evaluate a claim for benefits during the time it is valid. I agree that this authorization is valid for 2~/2 years from the date signed. I i know that I have a right to receive a copy of this authorization upon request. I agree that a copy of this authorization is as ~ valid as the original. I understand that the premium amount listed on this application represents the premium amount that my employer wi{I remit to AFLAC on my behalf; and I further understand that this amount, because of my employer's billing/payroll practices, may differ from the amount being deducted from my paycheck or the premium amount quoted to me by my associate~agent. ~~ 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 act, which is a crime and subjects such person to' criminal and civil penalties. I have read, or had read to me, the completed application and realize that policy issuance is based upon statements and answers provided herein and any other pertinent information AFLAC may require for proper underwriting. The answers are complete and true to the best of my knowledge and belief. i Signed and Dated at MILLERSTOWN PA on 01/23/2004 City and State Date Applicant's Signature ~s ~~~ Beneficiary (your estate unless otherwise indicated) _CHARLES GELB I certify that: I personally saw the applicant when the application was written, and each question was asked of the applicant and answered as recorded. All answers above are correct to the best of my knowledge. Associate/Agent's Signature , ~ --• iP Licensed Associate/Agent MAKE CHECK OR MONEY ORDER PAYABLE TO AFLAC. FOR INFORMATION, CALL TOLL-FREE 1-800-99-AFLAC (1-800-992-3522). _01 /23/2004 Date Form A-57205-PA 5 A57205PA.2 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by first-class mail, postage prepaid, upon the following: Michael T. Vough, Esquire Vough & Associates 126 South Main Street Pittston, PA 18640 Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 Dated: August 20, 2007 Counsel for Defendant Aflac a/k/a American Family Life Assurance Company Of Columbus C"`? r' ~ ~ - ~ ' -n . _ _--~ _ , s=; -n . ,,.~ ~~ ~. -~~ c:. t- `. ' -, ,_ - E -~, °- ~~i --~ u °[ . Glenn R. Davis, Esq. Attorney I. D. No. 31040 Andrea E. Dean, Esq. Attorney I. D. No. 86301 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 (717) 620-2444 (facsimile) Attorneys for Defendant Ken Litwiller IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TANYA GELB, Plaintiff v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants No. 4170 of 2007 CIVIL ACTION -LAW NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. LATSHA DAMS YORE & MCKENNA, P.C. Dated: ~ IZ3 ~ 7 By Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I. D. No. 86301 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 Glenn R. Davis, Esq. Attorney I. D. No. 31040 Andrea E. Dean, Esq. Attorney I. D. No. 86301 Latsha Davis Yohe & McKenna, P.C. 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 (717) 620-2444 (facsimile) Attorneys for Defendant Ken Litwiller IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TANYA GELB, Plaintiff v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants No. 4170 of 2007 CIVIL ACTION -LAW DEFENDANT KEN LITWILLER'S ANSWER TO COMPLAINT WITH NEW MATTER AND NOW, COMES, Defendant Ken Litwiller, by and through his attorneys, Latsha Davis Yohe & McKenna, P.C., and in response to the complaint of Plaintiff, Tanya Gelb ("Plaintiff" or "Gelb"), states as follows: 1. Denied. After reasonable investigation, Answering Defendant, Ken Litwiller ("Answering Defendant" or "Litwiller") is without information or knowledge sufficient to afford him the formation of a belief as to the truthfulness of the averments contained in this paragraph. 2. Admitted. 3. Admitted in part and Denied in part. It is admitted that Litwiller is an adult individual who resides at 27 Kristi Lane, Lewistown, Pennsylvania 17044. The remaining averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a response is necessary, it is denied that Litwiller was an agent/employee of Aflac. 4. Admitted in part and Denied in part. It is admitted that Defendant Aflac issued a disability insurance policy effective February 15, 2004, to Tanya J. Mascioni, which provided certain insurance coverages as further defined by that policy. The policy should be in the possession of Plaintiff, which policy speaks for itself. The remaining averments of this paragraph are denied. 5. Admitted in part and Denied in part. It is admitted that Defendant Aflac issued a letter addressed to Gelb dated November 30, 2005, attached to the Complaint as Exhibit "A," which letter speaks for itself. By way of further answer, upon information and belief, it is understood that Gelb received a payment from Aflac representing Defendant Aflac's determination of her disability benefits as provided by the terms and conditions of the issued policy. The remaining averments of this paragraph are denied as the terms and conditions of the policy that was issued to Plaintiff speaks for itself with regard to the benefits available to Plaintiff. While Plaintiff was entitled to twelve months disability coverage, it is denied that Plaintiff was disabled for that length of time as defined by the policy. ii~~ 2 6. Denied. After reasonable investigation, Litwiller is without information or knowledge sufficient to afford him the formation of a belief as to the truthfulness of the averments contained in this paragraph. 7. Admitted in part and Denied in part. It is admitted that Litwiller represented that the insurance coverage being offered by Aflac in the policy, which was upon information and belief ultimately purchased by Gelb, provided twelve months of disability benefits. Litwiller made no representations with regard to what constitutes a "disability" as that term is specifically defined and covered by the language of the insurance policy. By way of further answer, Plaintiff was given an Aflac brochure with regard to Aflac's insurance policy at the time of the open enrollment period at the Greenwood School District. The remaining averments of this paragraph are specifically denied including Plaintiff's inference that her pregnancy, without otherwise qualifying as a disability as defined by the policy, was in some undefined or undisclosed way, a covered condition under the terms and conditions of the issued policy. 8. Denied. After reasonable investigation, Litwiller is without information or knowledge sufficient to afford him the formation of a belief as to the truthfulness of the averments contained in this paragraph. By way of further answer, the terms and conditions of the policy speak for themselves. COUNTI Tanya Gelb v. Aflac a/k/a American Family Life Assurance Company of Columbus Breach of Contract u~~2 3 9. The responses to Paragraphs 1 through 8 above are incorporated herein by reference as if fully set forth. 10-12. The averments of this paragraph pertain to another defendant and are not directed to Answering Defendant Litwiller and therefore no responsive pleading is required. To the extent that a response is deemed to be needed, the averments are denied. COUNT II Tanya Gelb v. Aflac a/k/a American Family Life Assurance Company of Columbus Bad Faith Pursuant To 42 Pa. C.S.A. § 8371 13. The responses to Paragraphs 1 through 12 above are incorporated herein by reference as if fully set forth. 14-16. The averments of this paragraph pertain to another defendant and are not directed to Answering Defendant Litwiller and therefore no responsive pleading is required. To the extent that a response is deemed to be needed, the averments are denied. COUNT III Tanya Gelb v. Aflac a/k/a American Family Life Assurance Company of Columbus Unjust Enrichment 17. The responses to Paragraphs 1 through 16 above are incorporated herein by reference as if fully set forth. ii~~2 4 18. The averments of this paragraph pertain to another defendant and are not directed to Answering Defendant Litwiller and therefore no responsive pleading is required. To the extent that a response is deemed to be needed, the averments are denied. COUNT IV Tanya Gelb v. Ken Litwiller Fraud 19. The responses to Paragraphs 1 through 18 above are incorporated herein by reference as if fully set forth. 20. Admitted in part and Denied in part. It is admitted that Litwiller represented to Gelb that the Aflac insurance policy would provide up to twelve months of disability coverage. By way of further answer, the Aflac brochure provided to Gelb at the time of the enrollment meeting referenced coverage for a totally disabled individual and further identified that such total disability entailed a continuing inability to perform the material and substantial duties of one's full-time job. In addition, the insured must also be under the care and attendance of a physician for the condition, The brochure provided specifically stated what was not covered by the policy. It represented that Aflac would not pay benefits for a disability that was caused by or occurred as a result of giving birth within the first ten months of the effective date of the policy as a result of a normal pregnancy including caesarean (complications of pregnancy will be covered to the same extent as a sickness). The remaining averments of the paragraph are denied. Strict proof at time of trial is demanded. ii~~ 5 21. Denied. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is deemed necessary, the averments are denied. As aforestated, any Aflac brochure provided to Gelb addressed pregnancy as an exclusion as well as conditions arising out of pregnancy rather than the condition of pregnancy itself. Strict proof at time of trial is demanded. 22. Denied. It is specifically denied that Litwiller knew or had reason to know of the circumstances averred in this paragraph. Strict proof at time of trial is demanded. 23. Denied. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. 24. Denied. The averments of this paragraph constitute a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant Ken Litwiller respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff and provide such other relief to Defendant Litwiller that this Honorable Court deems appropriate. NEW MATTER 25. The responses to Paragraphs 1 through 24 above are incorporated herein by reference as if fully set forth. 26. Gelb was given a brochure with regard to Aflac's short term disability insurance policy and various benefit options at the time of the open enrollment period at the Greenwood School District prior to Gelb applying for or purchasing an insurance ii~~z 6 policy. See the Short Term Disability Policy attached as Exhibit "A," the Plan Highlights attached as Exhibit "B" and an example of the Outline of Coverage provided to Gelb attached as Exhibit "C" to the Answer and New Matter of Defendant Aflac a/k/a American Family Life Assurance Company of Columbus, which Exhibits are incorporated herein. 27. Gelb completed and signed the Application for Short-Term Disability Insurance, which is attached as Exhibit "D" to the Answer and New Matter of Defendant Aflac a/k/a American Family Life Assurance Company of Columbus and incorporated herein. 28. Gelb agreed that the insurance policy together with the Application for Short-Term Disability Insurance and endorsements or riders, if any, is the entire contract of insurance. See Exhibit "D" to the Answer and New Matter of Defendant Aflac a/k/a American Family Life Assurance Company of Columbus. 29. Gelb's claims are barred by the terms of the insurance policy and the Application for Short-Term Disability Insurance. 30. Gelb waived and released her claims by signing the Application for Short- Term Disability Insurance. 31. Any alleged reliance by Gelb on alleged representations made by Litwiller was not justifiable. 32. Gelb has failed to state a claim upon relief can be granted against Answering Defendant Litwiller. ii~~z 7 33. Gelb's claims are barred to the extent that she failed to mitigate her damages. 34. Any act of Litwiller are not the proximate cause of any damages alleged by Gelb. WHEREFORE, Defendant Ken Litwiller respectfully requests that this Honorable Court enter judgment in his favor and against Plaintiff and provide such other relief to Defendant Litwiller that this Honorable Court deems appropriate. Respectfully submitted, LATSHA DAVIS YORE & MCKENNA, P.C. Dated: g 23 D By _ Glenn R. Davis Attorney I. D. No. 31040 Andrea E. Dean Attorney I. D. No. 86301 1700 Bent Creek Boulevard, Suite 140 Mechanicsburg, PA 17050 (717) 620-2424 u~~2 g VERIFICATION The undersigned hereby verifies that the statements of fact in the foregoing are true and correct to the hest of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa. C. S, § 4904, relating to unsworn #alsification to authorities. Dated: ~ ~ ~ao~ + Kenneth Litwiller CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Defendant Ken Litwiller's Answer to Complaint With New Matter was served via first-class United States mail, postage prepaid, upon the following: Michael T. Vough, Esq. Vough & Associates 126 South Main Street Pittston, PA 18640 Alan R. Boynton, Esq. Devin J. Chwastyk, Esq. McNees Wallace & Nurick LLC P. O. Box 1166 Harrisburg, PA 17108-1166 Dated: ~' Z3 ~ 07 d~~ f ~~- Andrea E. Dean i'" ; C 7 r'`1 -Yl .. - ' ~=1 . i i ..r-. a ~, - \7 .> - ~./~ ` , ~'.'s -'. L- --i • -j ~ =-G 'i VOUGH & ASSOCIATES ~ MICHAEL T. VOUGH, ESQUI Attorney fo: Pls~ntiff Atty. Id No. 56099 ]26 South Msiin Street P.'ittston, PA 18640 !, Phone: 570-654-6499 TANYA GELB, IN THE COURT OF COMMON PLEAS Plaintifg OF CUMBERLAND COUNTY v. AFLAC a/k/a American Family Life Assurance Company of Columk~us and KFAT T T'T'~YITT T F12 CIVIL ACTION -LAW Vough & Associates, by Michae~ T. Vough, Esquire, and Answers the New Matter of the Defendant, Aflac a/k/a Americ~n Family Life Assurance Company of Columbus, as follows: 25. No response required. 26. Denied. The av II eats contained in paragraph 26 of the Defendant's New Matter are Conclusions of Law t~ which no responsive pleading is required and the same are therefore specifically denied. I, 27. Denied. The ave~ments contained in paragraph. 27 of the Defendant's New Matter are Conclusions of Law t~ which no responsive pleading is required and the same ate therefore specifically denied. 28. Denied. The Matter are Conclusions of Law therefore specifically denied. contained in paragraph 28 of the Defendant's New which no responsive pleading is required and the same are _ AND NOW, comes the~Plaintiff, Tanya Gelb, by and through her Attorneys, i 29. Denied. The averments contained in paragraph 29 of the Defendant's New Matter are Conclusions of Law to which no responsive pleading is required and the same are therefore specifically denied. 30. Denied. The averments contained in paragraph 30 of the Defendant's New Matter are Conclusions of Law to which no responsive pleading is required and the same are therefore specifically denied. 31. Denied. The a rments contained in h 31 of the Defendant's New PaP Matter are Conclusions of Law ito which no responsive pleading is required and the same are therefore specifically denied. 32. Denied. After reasonable investigation and inquiry, the Plaintiff is without knowledge of the truthfulness o~ the Defendant's averments contained in paragraph 32 of the Defendant's New Matter; specifically, that the document attached as Exhibit "D" to the Defendant's Answer and New Fatter is a true and accurate copy of a document that the Plaintiff may have signed and, accordingly, said avemnents are denied. Strict proof is hereby demanded. To the extent that tl~e averments contained in paragraph 32 of the Defendant's New Matter represent Conclusions of Law, no responsive pleading is required and the same are therefore denied. 33. Denied. The averments contained in paragraph 33 of the Defendant's New Matter are Conclusions of Law t~ which no responsive pleading is required and the same are therefore specifically denied. 34. Denied. The ave~tnents contained in paragraph 34 of the Defendant's New Matter are Conclusions of Law t~ which no responsive pleading is required and the same are therefore specifically denied. i 35. Denied. The av~ments contained in paragraph 35 of the Defendant's New Matter are Conclusions of Law a which no responsive pleading is required and the same are therefore specifically denied. ' 36. Denied The averments contained in paragraph 36 of the Defendant's New Matter are Conclusions of Law to which no responsive pleading is required and the same are therefore specifically denied. 37. Denied. The av~rnnents contained in paragraph 37 of the Defendant's New Matter are Conclusions of Law ~o which no responsive pleading is required and the same are therefore specifically denied. WHEREFORE, the Pla~ntiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant, Aflac, a/k f a American Family L~fe Assurance Company of Columbus, in an amount greater than the maximum jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Cout deems appropriate. Respectfully submitted, VOUGH & ASSOCIATES 7 (~ MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff . ~ VERIFICATION I, TANYA GELa verify that the statements made in the foregging ANSWER TO NEW MATTER are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 P.A. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: 9/507 c ~"~t'1 ~7 c t,_.. ~ ~ _ cr3 :!, .. 5 t`i'p ° ~ :, ., ~.~ r ; _„ ~~ ;;' ~ ? ; ~~~ ~'-; ~.,) ..•C Cad ,% ~, VOUGH do ASSOCIATES I~' MICHABL T. VOUGH, ESQUI Ateotnry for Plaintiff Atty. Id. No. 56099 126 South Main Street ~! Pittston, PA iS640 Phone: 570-654-6499 TANYA GELB, P. Plaintiff AFLAC a/k/a American Assurance Company of C KEN LIT'WILLER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION -LAW Life s and AND NOW, comes the Plaintiff, Tanya Gelb, by and through her Attorneys, Vough & Associates, by Michae~ T. Vough, Esquire, and Answers the New Matter of the Defendant, Ken Litwiller, as fol~ows: 25. No response r. 26. Denied. After knowledge of the truthfulness the Defendant's New Matter; and "C" to the Defendant's documents that the Plaintiff denied. Strict proof is hereby paragraph 26 of the Defendan pleading is required and the sa 27. Denied. After knowledge of the truthfulness ~sonable investigation and inquiry, the Plaintiff is without the Defendant's averments contained in paragraph 26 of cifically, that the documents attached as Exhibits "A", `B" per and New Matter are true and accurate copies have been provided and, accordingly, said averments ate Handed. To the extent that the averments contained in New Matter represent Conclusions of Law, no responsroe ;are therefore denied. ~sonable investigation and inquiry, the Plaintiff is without the Defendant's averments contained in paragraph 27 of t the Defendant's New Matter; Defendant's Answer and New Plaintiff may have signed and, demanded. To the extent that New Matter represent are therefore denied. that the document attached as Exhibit "D" to the is a true and accurate copy of a document that the ugly, said averments are denied. Strict proof is hereby averments contained in paragraph 32 of the Defendant's of Law, no responsive pleading is required and the same 28. Denied. The av~rtnents contained in paragraph 28 of the Defendant's New Matter are Conclusions of Law jto which no responsive pleading is required and the same are therefore specifically denied. 29. Denied. The av ents contained in paragraph 29 of the Defendant's New Matter are Conclusions of Law o which no responsive pleading is required and the same are therefore specifically denied. 30. Denied. The a ents contained in paragraph 30 of the Defendant's New Matter ate Conclusions of Law o which no responsive pleading is required and the same are therefore specifically denied. 31. Denied. The a ents contained in paragraph 31 of the Defendant's New Matter ate Conclusions of Law o which no responsive pleading is required and the same are therefore specifically denied. 32. Denied. The averments contained in paragraph 32 of the Defendant's New Matter are Conclusions of Law to which no responsive pleading is required and the same are therefore specifically denied. 33. Denied. The a erments contained in paragraph 33 of the Defendant's New Matter are Conclusions of Law to which no responsive pleading is required and the same are therefore specifically denied. 34. Denied The av eats contained in paragraph 34 of the Defendant's New Matter are Conclusions of Law o which no responsive pleading is required and the same are therefore specifically denied. WHEREFORE, the P tiff, Tanya Gelb, respectfully requests that this Honorable Court enter Judgment in favor f the Plaintiff and against the Defendant, Ken I.itwiller, in an amount greater than the um jurisdictional amount required for compulsory arbitration in Cumberland County along with any other relief that this Honorable Court deems appropriate. Respectfully submitted, VOUGH & ASSOCIATES / - 1/ MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff VERIFICATION I~ TANYA GEI~,B verify that the statements made in the forgoing ANSWER TO NEW MATTER are true and correct to the test of my knowledge. I understand that false statements herein are made subject to the penplries of 18 P.A. C.S. Section 4904, relating to unsworn falsification to authorities. DATE: 9~5~07 C"~ ~ -n __., ~~' ~ ~~ _~ . .R.~ , F .'l t -~;~' ";_ . ~ .~ :.~.:. ~ __ - Y -l o ,% _',. ~ t '' F j'~} `r '` 7 . +.....~ ..~ VOlJE3H b ASSOCIATES MICHAEL T. VOtK3H, ESQUIRE Atbomey for PlairMil'f Alkll. Id. No. 56099 126 South Main Street Pitbbon, PA 1,640 Photo: 570~654~499 a~~ e,~e~ TANYA GELS, tN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY v. CIVIL ACTION -LAW AFLAC alk/a American Family Life Assurance Company of Columbus and KEN LITVVILLER, Defendants ~ NO: 4170 OF 2007 CERTIFICATE OF SERVICE I, Michael T. Vough, Esquire, do hereby certify that on the 10"' day of September, 2007 I served Plaintiff's Answer to Defendant, AFLAC, and Defendant, Litwiller, New Matter on Counsel for the respective Defendants, AFLAC a/k/a American Family Life Assurance Company of Columbus and Ken Litwiller, by United States First Class Mail, postage pre-paid as follows: Alan R. Boyn#on, Jr., Esquire McNees Wallace ~ Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 1710&1166 Glenn R. Davis, Esquire Latsha Davis Yohe 8~ McKenna, PC 1700 Bent Creek Blvd. Suite 140 Mechanicsburg, PA 17050 VOUCH & ASSOCIATES ~_~~~ MICHAEL T. VOUCH, E CtUIRE Attorney far Plaintiff ~+ , ~` c~n~" rS~~ ~' „Q ~C ~A~ 1. VOUGH & ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 Fax: 57054-8509 ~. ~ -~-- TANYA GELB, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY v. CIVIL ACTION -LAW AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants NO: 4170 OF 2007 CERTIFICATE OF SERVICE I, Michael T. Vough, Esquire, do hereby certify that on the 4th day of December, 2007 I served Plaintiff's Interrogatories Addressed to the Defendants on Counsel for the respective Defendants, AFLAC a/k/a American Family Life Assurance Company of Columbus and Ken Litwiller, by United States First Class Mail, postage pre-paid as follows: Alan R. Boynton, Jr., Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, PC 1700 Bent Creek Blvd. Suite 140 Mechanicsburg, PA 17050 VOUGH & ASSOCIATES <C MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff ~~ J` ~~ .,_ +~ ~ ~ r ~ ~, r`> .r, "ti < ~+.~ ~..R~ ; ~ ~- ~ ~ J ~. ~~ ~ ~ ~ ~ ; ,~ VOUGH 8 ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 Fax: 570-654-6509 TANYA GELB, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY v. CIVIL ACTION -LAW AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, Defendants ~ NO: 4170 OF 2007 CERTIFICATE OF SERVICE I, Michael T. Vough, Esquire do hereby certify that on the 9th day of 2008 I served Plaintiff's Answers to Defendant, Ken Litwiller's, Interrogatories and Request for Production of Documents on Counsel for the respective Defendants, AFLAC a/k/a American Family Life Assurance Company of Columbus and Ken Litwiller, by United States First Class Mail, postage pre-paid as follows: Alan R. Boynton, Jr., Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Glenn R. Davis, Esquire Latsha Davis Yohe & McKenna, PC 1700 Bent Creek Blvd. Suite 140 Mechanicsburg, PA 17050 VOUGH & ASSOCIATES MICHAEL T. VOUGH, ESQ RE Attorney for Plaintiff ti ~ _ Cr ,,, z~m -- ._ ~ %'~ ~ - ~;: _ ~ r- =- f.:] `~ +~ x -~ .c-° VOUGH 8 ASSOCIATES MICHAEL T. VOUGH, ESQUIRE Attorney for Plaintiff Atty. Id. No. 56099 126 South Main Street Pittston, PA 18640 Phone: 570-654-6499 TANYA GELS, 1010 ~'E8 -•4 Ah g: 22 „ .. . Plaintiff v. AFLAC a/k/a American Family Life Assurance Company of Columbus and KEN LITWILLER, IN THE COURT OF COMMON PLI=/ OF CUMBERLAND COUNTY CIVIL ACTION -LAW Defendants ~ NO: 4170 OF 2007 PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above captioned cause of action settled, discontinued and ended with prejudice. VOUGH & ASSOCIATES ~° MICHAEL T. V UGH, E QUIRE Attorney for Plaintiff ORDER AND NOW, this '''"`day of __ }>~ , 2010, the above captioned cause of action is hereby marked settled, discontinued and ended with prejudice. ~ ~~ ,~~ PROTHONOTARY ~,~