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Home My WebLink About04-1881EWING W. PIERCE, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 01/- f MI Ct>;1I V. UNUM PROVIDENT CORPORATION, JURY TRIAL DEMANDED Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mis adelante en las siguientes piginas, debe tomar acci6n dentin de los pr6ximos veinte (20) dias despu6s de a notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de on abogado una comparecencia escrita y radicando en la Code por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reciamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el dernandante puede ser dictado en contra suya por la Code sin nAs aviso adicional. Usted puede perder dinero o propiedad a otros derechos importantes Para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE DUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS CUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS DUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 EWING W. PIERCE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO.: v v- ? F it v. UNUM PROVIDENT CORPORATION, JURY TRIAL DEMANDED Defendant COMPLAINT The Plaintiff is Ewing W. Pierce (hereinafter "Pierce'), an adult individual with a residence of Bethany Village, Mechanicsburg, Pennsylvania, 17055. 2. The Defendant is Unum Provident Corporation (hereinafter "Unum"), a corporation believed and therefore averred to be incorporated in the state of Maine with a principal office address of 2211 Congress Street, Portland, Maine, 04122. 3. Unum is in business as a long-term care insurance carrier and is registered to do business and to sell insurance in the Commonwealth of Pennsylvania. 4. Unum regularly conducts business in the Commonwealth of Pennsylvania by among other things selling and administering long-term care insurance policies to Pennsylvania residents. 5. The cause of action set forth in this Complaint arose in the Commonwealth of Pennsylvania. 6. In March, 1993, Unum sold Plaintiff Pierce a long-term care policy, Policy Number LAC504963, (hereinafter the "Policy"). A true and correct copy of the aforesaid long- term care Policy is believed and therefore averred to be in the possession of Unum and is not attached hereto. Plaintiff Pierce has paid all applicable premiums and the Policy is in full force and effect. 8. On or about March, 2002, Pierce entered the Bethany Village Retirement Center and has been residing in that facility continuously through the date of this action. 9. Under the Policy, Pierce was to receive three thousand dollars ($3,000) per month in the event that he resided in a "nursing facility" as that term was defined in the Policy. 10. Bethany Village, where Pierce has resided since March, 2002, meets the definition of a "nursing facility" as that term is defined in the Policy. 11. Pierce relied on the representations set forth in the Policy, including the section entitled, "Terms You Should Know", containing certain important definitions in agreeing to purchase the Policy from Defendant Unum. 12. Despite having resided in a nursing facility since March, 2002, Defendant Unum has failed and refused to pay Pierce the required three thousand dollars ($3,000) per month from May, 2002 through June, 2003, and instead paid only sixty percent (60%) of the three thousand dollar ($3,000) benefit monthly during that period resulting in an unjustified and wrongful reduction in benefits in the amount of sixteen thousand eight hundred forty dollars ($16,840). 13. Despite several demands by Pierce that the proper full three thousand dollar ($3,000) per month benefit be paid, Unum has failed and refused to pay the benefit balance due. 14. Pierce has appealed the decision of Unum to pay a reduced amount of benefit and Unum has failed and refused to reverse its decision and pay the proper and full benefit amount in bad faith. 15. Unum has assigned claim number 02034774 to Pierce's claim. 16. Unum's failure and refusal to pay the full three thousand dollar ($3,000) monthly contractual amount constitutes a breach of contract. 2 17. As a result of Unum's breach of the insurance contract, Pierce has suffered actual damages in the principal amount of sixteen thousand eight hundred forty dollars ($16,840). 18. Defendant Unum's unjustified refusal to pay the proper contractual Policy benefit as set forth specifically herein constitutes bad faith toward its insured, Plaintiff Pierce. 19. Under Pennsylvania law in an action arising under an insurance policy, if the Court finds that the insurer has acted in bad faith toward the insured as is alleged herein, the Court may award interest on the amount of the claim from the date of the claim from the date that the claim was made equal to the prime rate of interest plus three percent (3%) as well as punitive damages, court costs and attorney's fees. 20. There is no reasonable basis for Defendant Unum's refusal to pay Pierce the full monthly Policy benefit. Defendant Unum's failure and refusal to pay Pierce the full monthly Policy benefit is not based on a reasonable interpretation of the insurance Policy in effect at the time Pierce purchased the Policy. 21. Defendant Unum knew or recklessly disregarded its lack of reasonable basis in denying a full monthly benefit payments to Pierce. WHEREFORE, Plaintiff, Ewing W. Pierce respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Unum Provident Corporation in the amount of $16,840 plus costs, interest, attorney's fees and punitive damages in an amount in excess of $25,000.00. Date:Aptt? 20 ? Z04 Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff, Ewing W. Pierce 4 VERIFICATION I, Dennis W. Pierce, with power of attorney for my father, Ewing W. Pierce, verify the averments of the foregoing Complaint are true and correct to my personal knowledge, infor- oration and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. $ 4904, relating to unworn falsification to authorities. Date: Wf7`Vl 12 AV 'f' By: 4) I Dennis W. Pierce cn ti 0 -IbA i - o?Q? o _:: - :ern ? ? -G Q EWING W. PIERCE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO.: 04-1881 V. UNUM PROVIDENT CORPORATION, JURY TRIAL DEMANDED Defendant AFFIDAVIT OF SERVICE BY MAIL COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF CUMBERLAND ) Thomas O. Williams, Esquire, being duly sworn, upon oath, deposes and says as follows: 1. I am the attorney for Ewing W. Pierce in the above-entitled case. On April 28, 2004, I caused to be transmitted, by a form of mail requiring a signed receipt, a copy of the complaint filed in this action to the following: Unum Provident Corporation. A copy of my transmittal letter is attached hereto as Exhibit "A". 2. I further depose and say that I thereafter received. from the Postmaster of Portland, Maine, a return receipt bearing the notation "Date of delivery: April 30, 2004." A copy of the official return receipt is attached hereto as Exhibit "B". Esquire Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Sworn to and subscribed before me this 5th day of May, 2004. Notary Public Cyrnhia A. CLower,Allen 71vMy Coinmiselon Attorney I.D. No. 67987 No=1al 2331 Market Street REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP Hill, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE DEBRA DENISON CANTOR Writer's E-Mall Address: tomwillAeoix net Writer's Extension: 138 April 28, 2004 Via Certified Mail Return Receipt Requested Unum Provident Corporation Attn: Katherine Durrell Lead Appeals Specialist 2211 Congress Street Portland, ME 04122 Re: Ewing W. Pierce v. Unum Provident Corporation Docket No.: 04-1881 Our file no.: 04-304.000 Dear Ms. Durrell: THOMAS O. WILLIAMS SUSAN H. CONFAIR JOANNE H. CLOUGH SUSAN J. SMITH DOUGLAS P. LEHMAN +Certitied Civil Trial Specialist Enclosed for service upon Defendant, Unum Provident Corporation please find a Complaint in the above captioned case. Should you have any questions please do not hesitate to call me. TOW/cac Enclosure cc: Dennis W. Pierce EXHIBIT "A" .r ¦ Complete items 1, 2, and 3. Also complete Item 4 If Restricted Dellvery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailplece, or on the front N space permits. 1.. Article Addressed to. sy??nua?n ?Adent ? Addressee B. Recelved by (P ) C. Date of Delivery O MF D. Is del 1? ? Yee It YE _ dell eryedd w; IWNo Unum Provident Corporation Attn: Katherine Durrell ?isp5 Lead Appeals Specialist 221-1-Congress Street s. ServAlcee dmedy Mall ? Express Mail Portland, ME 04122 ? Registered ? Return Receipt for Merchandise ?Insured Mail ?C.O.D. 4.. Restricted'Dellvery7 (Exsa Feel ? Yes 2:??°a e,a1 7003 22? W1 2,0) Ps Form 3811 ;,August 2001 Domestic Return Receipt 10259302-M-1540 EXHIBIT "B" C7 0 ? C ' ' i -n 'i Z' i 1 3 n ? ? rn? ? ? ? cam;; cn ? °?? r •, -? T \ ? ? C . ? ?-. .. ?i _? r :.v '? O -?: EWING P. PIERCE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION NO. 04-1881 UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant NOTICE TO PLEAD To Plaintiff 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. Dated: June 8, 2004 STEVENS & LEE By E. Thomas Henefer Attorney I.D. No. 55773 Kirk L. Wolgemuth Attorney I.D. No. 45792 111 North Sixth Street P.O. Box 679 Reading, Pennsylvania 19603 (610) 478-2000 Attorneys for Defendant 1 SLl 447992v 1 /10305.165 EWING P. PIERCE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION NO. 04-1881 UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant UNUM LIFE INSURANCE COMPANY OF AMERICA'S ANSWER WITH NEW MATTER The defendant UNUM Life Insurance Company of America, by its counsel Stevens & Lee, files the following Answer With New Matter to Plaintiffs Complaint: 1. Admitted. 2. Denied. Pursuant to a stipulation, the parties have agreed that the proper name of the defendant is UNUM Life Insurance Company of America. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that plaintiff entered Bethany Village Retirement Center. After reasonable investigation, the defendant is without information or knowledge sufficient to form a belief as to the tnlth of the remaining averments in Paragraph 8 and the same are therefore denied. 9. Admitted in part and denied in part. It is admitted only that the Policy contemplated circumstances under which plaintiff could receive: benefits of up to $3,000.00 per month. It is specifically denied that the averments of paragraph 9 of the complaint accurately or 2 SLI 447992vl/10305.165 completely describe all of the relevant policy provisions which are in writing and speak for themselves. 10. Denied. The averments set forth in Paragraph 10 of plaintiffs complaint are conclusions of law to which no response is required. 11. Denied. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 11 and the same are therefore denied. 12. Admitted in part and denied in part. It is admitted that UNUM has paid plaintiff 60% of the $3,000 monthly benefit from May 2002 through July 2003 because plaintiff was living in an assisted living facility. It is denied that plaintiff was entitled to $3,000 per month during that time period because he was in an assisted living facility. 13. Admitted in part and denied in part. It is admitted that UNUM has not paid $3,000 per month to plaintiff from May 2002 through July 2003 because plaintiff was living in an assisted living facility. Plaintiff was paid $1800 per month from March 31, 2002 through August 29, 2003. It is denied that UNUM is failing to pay plaintiff $3,000 per month since August of 2003 because plaintiff was moved to a nursing care facility within Bethany Village. 14. Admitted in part and denied in part. It is admitted that plaintiff has appealed the decision to pay the reduced benefit amount and that UNUM did not reverse its decision until plaintiff was moved to a nursing care facility in August of 2003. It is specifically denied that UNUM has acted in bad faith. To the contrary, UNUM did not act in bad faith but instead complied with its obligations under the policy. 15. Admitted. SLI 447992v1/10305.165 16. Denied. The averments set forth in Paragraph 16 contain conclusions of law to which no response is required. To the extent that a further response is required, the averments of paragraph 16 of the complaint are specifically denied. To the contrary, UNUM did not breach the contract but instead complied with its contractual obligations. 17. Denied. The averments set forth in Paragraph 17 of Plaintiff s Complaint contain conclusions of law to which no responses are required. To the extent that a further response is required, the averments of paragraph 17 of the complaint are specifically denied. To the contrary, UNUM did not breach the contract but instead complied with its contractual obligations. 18. Denied. The averments set forth in Paragraph 18 of Plaintiff's Complaint contain conclusions of law to which no responses are required. To the extent that a further response is required, the averments of paragraph 18 of the complaint are specifically denied. To the contrary, UNUM did not act in bad faith but instead acted reasonably and complied with its contractual obligations. 19. Denied. The averments set forth in Paragraph 19 of Plaintiff s Complaint contain conclusions of law to which no responses are required. 20. Denied. It is specifically denied that UNUM's refusal to pay plaintiff the full monthly benefit is not based upon a reasonable basis. To the contrary, UNUM followed and complied with the provisions of the policy. 21. Denied. The averments set forth in Paragraph 21 of the Complaint contain conclusions of law to which no responses are required. To the extent that a further response is required, the averments of paragraph 21 of the complaint are specifically denied. To the contrary, UNUM acted reasonably and complied with its contractual obligations. sLI 447992v1/10305.165 WHEREFORE, UNUM requests that the Complaint be dismissed in its entirety and costs and fees awarded to UNUM. NEW MATTER 22. Plaintiff fails to state a claim upon which relief can be granted. 23. UNUM Provident Corporation is not a proper defendant in this action in that, among other things, it is not an insurance company and was not a party to plaintiffs insurance policy. 24. Plaintiff s claim for breach of contract fails because plaintiff has been paid all of the long-term care benefits to which he is entitled under the respective policy. 25. Plaintiffs claim may be barred, in whole or in part, by applicable statutes of limitation and/or contractual limitation of action provisions. 26. Plaintiffs claim may be barred by the doctrines of waiver, estoppel, accord and satisfaction, and/or laches. 27. Plaintiffs claim is barred because UNUM's conduct in this case was justified and/or privileged. 28. Plaintiff is not entitled to recover in this case: because the terms of the policy were properly applied and all obligations under applicable law in reviewing and deciding plaintiff s claim were satisfied. 29. Plaintiff s Complaint fails to state a claim under Pennsylvania statutory law including Pennsylvania's insurance bad faith statute, 42 Pa. C.S.A. § 8371. 30. Plaintiff is not entitled to recover attorneys' fees and costs under 42 Pa. C.S.A. § 8371 or otherwise. SLl 447992v1/10305.165 31. To the extent plaintiff's Complaint seeks an award of punitive damages, the Complaint fails to state a claim upon which relief can be granted. because even if the determination of benefits under the applicable policy was incorrect (which is denied), UNUM's conduct, or lack of conduct, in the case of UNUM Provident, did not rise to the level which would support an award of punitive damages and any award of punitive damages in this action would violate UNUM's constitutional rights including UNUM's rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 1 of the Pennsylvania Constitution. WHEREFORE, UNUM requests that the Complaint be dismissed in its entirety and costs and fees awarded to defendant. Dated: June 8, 2004 STEVENS & LEE By E. Thomas He Attorney I.D. No. 55773 Kirk L. Wolgenluth Attorney I.D. No. 45792 111 North Sixth Street P.O. Box 679 Reading, Pennsylvania 19603 (610) 478-2000 Attorneys for Defendant SLl 447992vl/10305.165 CERTIFICATE OF SERVICE I, E. Thomas Henefer certify that on this date, I served a certified true and correct copy of the foregoing UNUM Life Insurance Company Of America's Answer With New Matter upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Thomas O. Williams, Esquire 2331 Market Street Camp Hill, Pennsylvania 17011 Date: June 8, 2004 SM 447992vl/10305.165 NJ <I b _ C:.J -11 f., ._i _i_ __ , -n - a f ; ? , EWING W. PIERCE, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 04-1881 V. UNUM PROVIDENT CORPORATION, JURY TRIAL DEMANDED Defendant PLAINTIFF'S REPLY TO NEW MATTER 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no responsive pleading is required. 23. Admitted. With the clarification that counsel for parties have agreed to enter into a stipulation identifying the Defendant as Unum Life Insurance Company of America. 24. Denied. The averments of paragraph 24 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required Plaintiff specifically denies that the Defendant has paid all required long term care benefits pursuant to the policy. By way of further answer the Plaintiff incorporates herein by reference the Complaint in this action as if set forth fully herein. 25. Denied. The averments of paragraph 25 constitute; conclusions of law to which no responsive pleading is required. 26. Denied. The averments of paragraph 26 constitute conclusions of law to which no responsive pleading is required. 27. Denied. The averments of paragraph 27 constitute conclusions of law to which no responsive pleading is required. If an answer is judicially deemed required, Plaintiff denies that Unum's conduct in failing and refusing to pay the full amount of the benefits required under the policy was justified and/or privileged. 28. Denied. The averments of paragraph 28 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required Plaintiff denies that the Defendant followed the terms of the policy with respect to the calculation and paying of benefits to the Plaintiff. 29. Denied. The averments of paragraph 29 constitute conclusions of law to which no responsive pleading is required. 30. Denied. The averments of paragraph 30 constitute conclusions of law to which no responsive pleading is required. 31. Denied. The averments of paragraph 31 constitute conclusions of law to which not responsive pleading is required. WHEREFORE, Plaintiff, Ewing W. Pierce respectfully requests this Honorable Court to enter judgment in it favor and against Defendant, Unum Life Insurance Company in accordance with the Complaint. Date: iurulll l q Thomas O. Williams, Esquire Attorney I.D. No. 67987 Thomas J. Rozman Attorney I.D. No. 72649 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff, Ewing W. Pierce Attorney I.D. No. 16267 CERTIFICATE OF SERVICE AND NOW, this day of / , 2004, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: E. Thomas Henefar, Esquire Stevens & Lee 111 North Sixth Street P.O. Box 679 Reading, PA 19603 WILLIAMS, ESQUIRE VERIFICATION I, 1 S)M with power of attorney for my father, Ewing W. Pierce, me ty-1o02WM• verify the averments of the foregoing are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. $ 4904, relating to unworn filsification to authorities. Date: By: Dennis VV. Pierce n o ? ?, ?, ;`- ? I ?. C ? w4. r m -r: ..... - ?l JC j Ll .?. i - J -? CJ -? f w? EWING W. PIERCE, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO.: 04-1881 V. UNUM PROVIDENT CORPORATION, JURY TRIAL DEMANDED Defendant PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter as settled and discontinued with prejudice. Respectfully submitted, REAGER & AD1Jk I Date: October 1, 2007 The6dore A. Adler, Esquire Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff, Ewing W. Pierce CERTIFICATE OF SERVICE AND NOW, this 1St day of October, 2007, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Kirk L. Wolgemuth, Esquire Stevens & Lee 111 North Sixth Street P.O. Box 679 Reading, PA 19603 THOMAS O. WILLIAMS, ESQUI r; N ;.'e4 ?? is J.7 S °C