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HomeMy WebLinkAbout01-5198IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy #23338 issued to her father, Juan Rosario, Plaintiff MAMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant CIVIL ACTION - LAW 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 69362 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy #23338 issued to her father, Juan Rosario, Plaintiff MAMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant CIVIL ACTION - LAW COMPLAINT AND NOW, comes Plaintiff, Frances M. Rosario, by and through her attorneys, Latsha Davis & Yohe, P.C., and brings this cause of action against Defendant MAMSI Life and Health Insurance Company, and avers the following: 1. The Plaintiff is Frances M. Rosario, an adult individual residing at 400 East Main Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Upon information and belief, the Defendant is MAMSI Insurance Resources, LLC, t/d/b/a MAMSI Life and Health Insurance Company (hereinafter "MAMSI'), a foreign corporation registered to do business in Pennsylvania with its main corporate offices at 4 Taft Court, Rockville, Maryland. 3. This matter involves a dispute regarding Plaintiff Rosario's entitlement to the proceeds of a life insurance policy issued by Defendant MAMSI as a group policy to Best Pontiac Olds Cad GMC ("Best"). 69362 4. Juan Rosario, Plaintiff Rosario's father, was employed by Best as an auto body repairman. Upon information and belief, his employment with Best commenced April 6, 1998. 5. Best paid premiums on Mr. Rosario's behalf as a participant in the Group Policy provided by Defendant MAMSI to Best for its employees. 6. Mr. Rosario designated his daughter, Plaintiff Rosario, as the beneficiary under the policy. See Exhibit "A', Certification of Coverage. In November of 1999, Mr. Rosario was diagnosed as suffering from lung cancer. 8. On or about June 8, 2000, doctors determined that Mr. Rosario's lung cancer had metastasized to his brain. 9. Mr. Rosario died on or about September 6, 2000. The official cause of death was listed as metastic squamous bronchogenic carcinoma. See Exhibit "B', copy of Death Certificate. 10. Mr. Rosario had met all eligibility requirements to be entitled to the benefits under the life insurance policy. Some time after Mr. Rosario's death, Best notified MAMSI of Mr. Rosario's 11. death. 12. On or about November 24, 2000, Defendant MAMSI forwarded a letter to Best indicating that "Juan Rosario is not eligible for coverage under [Best's] Group Life and Disability Policy." A copy of this letter is attached hereto as Exhibit "C'. 69362 2 13. The Group Risk Assessment referred to in the November 24, 2000 letter does not indicate that fulfillment of the active work requirement was a condition of coverage. See Exhibit "C'. 14. The Group Risk Assessment contains neither definitions nor any other binding terms pertaining to eligibility. 15. At no time did Defendant MAMSI contact Plaintiff Rosario regarding her entitlement to the proceeds of the policy. 16. On or about June 25, 2001, Plaintiff Rosario obtained a copy of the policy in effect for the Year 2000. See Exhibit "D', Cover Letter and Policy. 17. Contrary to the denial letter of November 24, 2000, the policy clearly and unequivocally provides that "An insured may remain in an eligible class for a limited time if active full-time work ceases due to disability; leave of absence, layoff, or change to a part-time status." See Exhibit "D', Policy, p. 10 (emphasis in original). 18. On or about June 8, 2000, Mr. Rosario became totally disabled as a result of the cancer, which had progressed from his lung to his brain. 19. Mr. Rosario applied for and received Social Security benefits in the form of Supplemental Security Income. 20. Under the terms of the Group Life Insurance Policy, coverage would continue tmtil "the end of the 12 policy month period that next follows the end of the policy month in which that person last worked as an active full-time employee. See Exhibit "D', Policy, p. 10 (emphasis in original). 69362 3 21. Under the terms of the Group Life Insurance Policy, coverage should have continued until at least June 30, 2001. 22. Mr. Rosario died within three months of the date of the onset of total disability, well before the expiration of the 12 month coverage period mandated in cases of disability. 23. Rosario. 24. 25. To date, benefits have not been tendered by Defendant MAMSI to Plaintiff The amount of the death benefit was $10,000.00. On or about August 10, 2001, the undersigned attorney sent a letter to Defendant MAMSI requesfing payment of benefits within ten (10) days of the date of the letter. A copy of the August 10, 2001 letter is attached as Exhibit "E'. As of August 31, 2001, no response has been received. COUNT I - Breach of Contract Plaintiff Rosario v. Defendant MAMSI 26. Plaintiff incorporates paragraphs 1 through 25 as if fully set forth herein. 27. As the designated beneficiary, Ms. Rosario is entitled to the proceeds of the Group Life Insurance Policy. 28. The Group Life and Disability Policy requires "Interest will be paid on proceeds not paid with 30 days after the death of the Insured. The rate will be declared by [MAMSI] but will never be less than 4% per annum." See Exhibit "D', Policy, p. 5 (emphasis in original). 69362 4 29. Plaintiff Rosario is entitled to interest on the proceeds in an amount not less than 4% per annum from the date MAMSI was informed of Mr. Rosario's death. 30. Defendant MAMSI's failure to pay the amounts due and owing to Plainfiff Rosario as more fully set forth above constitutes a breach of the Group Life Insurance Policy. WHEREFORE, Plaintiff Rosario requests that this Honorable Court enter judgment in her favor and against Defendant MAMSI in the amount of $10,000.00 plus interest as required by the Policy, an amount not to exceed $25,000.00, requiring compulsory arbitration in the County of Cumberland. COUNT II - Bad Faith Plaintiff Rosario v. Defendant MAMSI 31. Plainfiff incorporates paragraphs 1 through 30 as if fully set forth herein. 32. The language of the policy is clear and unequivocal that in the case of total disability, coverage would continue for at least an additional 12 months after the date of onset of disability. 33. Defendant MAMSI's assertion that Juan Rosario is not eligible for coverage under the Group Life and Disability Policy due to him not fulfilling active work requirements is in direct contravention to the clear and unequivocal language of the Policy mandating coverage for at least 12 months after the onset of the date of disability. 34. Defendant MAMSI's voiding of Juan Rosario's life insurance coverage demonstrates a reckless disregard for the rights of the insured. 69362 5 35. Defendant MAMSI's refusal to pay proceeds to Plaintiff Rosario on the basis stated in its November 24, 2000 letter demonstrates a reckless disregard for the rights of the insured. 36. Defendant MAMSI's refusal to pay proceeds to Plaintiff Rosario is frivolous and unfounded. 37. Defendant MAMSI's refusal to provide benefits, as well as Defendant MAMSI's actions and omissions as more fully set forth above, constitutes bad faith under 42 C.S.A. § 8371. WHEREFORE, Plaintiff Rosario requests that this Honorable Court enter judgment in her favor and against Defendant MAMSI in the amount of $10,000.00 plus interest as required by the Policy, together with attorneys fees, court costs, interest and punitive damages to be calculated in accordance with 42 Pa.C.S.A. § 8371, an amount not to exceed $25,000.00, requiring compulsory arbitration in the County of Cumberland. Dated: Respectfully Submitted, LATSHA DAVIS & YOHE, P.C. Steven M. Montresor Attorney I.D. No. 74244 P.O. Box 825 Harrisburg, PA 17108 (717) 761-1880 Attorneys for Plaintiff, Frances M. Rosario 69362 6 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy of her father, Juan Rosario, Plaintiff MAMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant NO. CIVIL ACTION - LAW VERIFICATION I, Frances M. Rosario, hereby state that I am the Plaintiff in the within action and further verify that the facts set forth in this Complaint are true and correct to the best of my knowledge, information and belief; and acknowledge that the statements in said Complaint are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: ~//?'/,/~ / ('Fr~x~s M. Rosari/o - 69362 A C{ Suppl~ CERTIFICATION OF COVERAGE Policyholder: Insured Person: Policy Number: Certificate Humber: rtliicate Effectlve Date: Beneficiary: Death Beneilt: mental Death Benefit: BEST PONTIAC-OLDS-CAD-GNC ROSARIO, JUAN 23338 582767267 01 FEB 2000 FRANCES H ROSARIO $10,000.00 (reduces to 65% at age 65, terminates at age 70.) $o.0o $0.00 President B This is to certi0/that the information here given is correctly copied from an original certificate of death duly filed with me as Local Regisr. rar, The original certificate will be i'brwarded to the State Vital Records Office for permanent filing. WARNING: It is illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $2.00 P 6669143 No. Date CERTIFICATE OF DEATH MAMS M.D. IPA 01'1 tMUM MAMSI tv~iAPS I November 24, 2000 Best Pontiac-Olds-Cad-GMC Attn: Charles Beans, Controller 100 Eisenhower Drive PO Box 79 Hanover, PA 17331 RE: Juan Rosario - MAMS1 Life and Itealth Insurance Company (MLH) Member - M582767267'01 Dear Mr. Beans: It has come to the attention of MAMSI Life and Health Insurance Company (MLI t) that Juan Rosario is not eligible for coverage under your Gronp Life and Disability Policy. Please refer to page 1, #1 of your Group Risk Assessment, it states, "Full-time is defined to be employees working a minimum of 35 hours per week on a regular year-round basis." Information provided by your company shows that Juan Rosario's last day of work ~vas June 7, 2000. At this time MAMSI Life and 1 lealth Insurance Company (MLI I) is voiding Mr. Rosario's Life and Disability Coverage due to him not fulfilling the Active Work Requirements. If you have any questions please call me at (301) 360-8703. Sincerely, _. By; Gary Therkildsen Director Special Investigations MAMSI Life and Health Insurance Company (MLtt) CC: Mark Biancucci, Group Services Kathleen Graham, Customer Support Suzanne Mayhew, Life and Disability NOV. -08'O0(WED) 09:42~ MAMSI HARRISBURG, PA TEL:717-791-0925 P, 002 3. Ale ~lon employe~ ~vered byafio~et pla"} :, ~ .'.. ~ployet pte~um conuibudon ~o= ~mploYee ~ve~e../~0 %F: De~n&nt ~verig~ Arc ~ete Jny ~crent or prior employa~ ar depc6dmts ~ov~ under' COBKAt Do you here .ay employ~ of any knoWled6e o~ em~loye-"depcn~eate who live out of the .te~ and who ~quire he.ltk~ve~je~" . ff YES. numar o~ employ~l of ~e~ndent~..nd where they are ~n · re~Ul~yezr-roun6 basis. }l~ed belo~e bNnl elll~ble E~' 0 ¥.'zs .OYEs D '-P~ x'~t',, MAMSI ALLIANCE M.D. IPA CHOICE ......... ' PPO ,RIH 29 2001 June 25, 2001 Steven M. Montresor, Esq. Latsha. Davis & Yohe, P.C. PG Box 825 Harrisburg, PA 17108-0825 RE: Juan Rosario, Sr. MAMSI Member No.: M582767267'01 Your File No.: 344-01 Dear Mr. Montrcsor: /ts requested in your letter of June 20, 2001, please find enclosed the Group Lig~. and Disability policy fbr [ es~ Pontm,.-Olds-Cad-GMC, Group #~..,~8. This po!icy was in effect lbr the calendar year 2000. Should yon have any questions or need additional information, please contact me at (301) 360-8703. Sincerely, ~ary Therkildsen Director, Special !nvestigations MAMSI Life and H,.altk Insurance Company(MLH) P(.¢. Box ~)35 · Frederick. Ma~viand , _, /( Fax: (31~1) 36!~ 8')71 (oipt31atc address: 4 Life and Health Insurance Company Group Life Insurance Polic This policy is a non-participating policy Rockviile, MD Form 100 GL (PA) TABLE OF CONTENTS MAJOR SECTIONS DEFINITIONS ................................................ 1 GENERAL PROVISIONS .......................................... 3 DEATH BENEFIT .............................................. 5 PREMIUMS .................................................. 5 CONVERSION OPTION .......................................... 7 ELIGIBILITY AND EFFECTIVE DATE ............................... 9 ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS ................. 12 SHORT TERM DISABILITY BENEFITS ............................... 14 Form 100GL(PA) DEFINITIONS The following terms which appear in bold italics thrc~ughout the Policy have special meaning. Active, Full-time Employee An active employee performs all of the duties of a job with the employer covered under this Policy. This job may be at either the employer's normal place of employment or at another place to which the regular business operations of the employer required the employee to go. To be full-lime, an employee must work for an employer covered under this Policy, at least 30 hours each week and on the regular payroll of the employer for that work. An active and full-time employee, as defined above, may also include members of an association or employees of member firms of an association to which the Policy is issued. Insured means the person whose life is insured. Period of Total Disability This is the period of time that a person is totally disabled. New periods due to the same or related causes must be separated by return to active work for 30 consecutive days or more. Periods due to different causes must be separated by a return to active work for at least one day. No new waiting period will be applied if there are 30 or fewer days between periods of disability. Partial Disability means as results of the sickness or injury which caused total disability, the Insured is: ~ unable to perform one or more, but not all, of the material and substantial duties of any other occupation on a full time or part time basis; 2 able to perform all of the material and substantial duties of any occupation on a part time basis. Partially Disabled Policyholder see Partial Disability means the corporation, association, partnership or proprietorship that purchased this plan of group insurance. Service Waiting Period This is the period of time, set forth in the application that the proposed insured is not eligible for coverage under this Policy. Form 100GL(PA) 1 Total Disability means unable to perform the main duties of the Insured's occupation. After the first continuous year, the Insured must be unable to perform the duties of any occupation for which the Insured is qualified by education, training or experience and is not engaged in gainful employment~ Totally Disabled see Total Disability. Waiting Period The period of consecutive days of total disability for which no benefit is payable. The waiting period begins on the first day of total disability occurring after the effective date of coverage. We, Us, Our refers to MAMSI Life and Health Insurance Company, Form 100GL(PA) 2 GENERAL PROVISIONS The Contract The Policy, the master application and the enrollment applications will constitute the entire contract. A copy of any application of the policyowner shall be attached to the policy when issued. Any statements made by the Policyholder or the Insured are considered representations and not warranties. Authority to Modify No agent or other person has the authority to modify or change the provisions of this Policy except by an agreement in writing signed by our president, our vice president or our secretary and the Policyholder. Certificates We will issue to the Policyholder for delivery to each Insured, an individual certificate. The Insured is the Certificateholder unless otherwise specified. It will summarize the benefits of the Policy, to whom the benefits are payable and the rights of the Certificateholder when the coverage ends. The Certificate is not a part of the Policy. It does not modify any of the conditions or provisions of the Policy. Group Policy Inspection A copy of the Policy is at the office of the Policyholder. It is available for inspection by covered persons during regular business hours. Ownership of Policy The Policyholder is the owner of the Policy and may request changes or an amendment to the Policy without the consent of the Insured, any assignee or beneficiaries. However, no change may affect the lnsured's right to change the beneficiary or the right to exercise the conversion privilege. Essential Data Incontestability The Policyholder will keep a record of the insured persons. This record will contain all of the data specified by us. Reports from this data will be furnished as needed for administering terms of the Policy and to determine premiums rates. The Policy cannot be contested by us, after it has been in force during the lifetime of the Insured for two (2) years from the effective date, except for nonpayment of premiums. No statement made by any person insured under the Policy relating to the Insured's insurability shall be Form 100GL(PA) 3 used in contesting the validity of the insurance after such insurance has been in force for two (2) years during the lnsured's lifetime unless such statement is contained in a written instrument signed by the Insured and a copy has been furnished to the Insured, his beneficiary or his personal representative. Misstatement If the Insured's age, sex or any other essential data has been misstated, an equitable adjustment shall be made in the premiums or the amount of insurance. Any premium due will be based on the correct amount of insurance or rate. We will rely only on the data furnished by the Policyholder in making corrections. Beneficiary The Insured has the right to designate the beneficiary. This designation may be changed by the Insured any time unless it is a designation specifically stated to be irrevocable. Changing an irrevocable beneficiary will require the signature of the irrevocable beneficiary. The Policyholder may never be a designated beneficiary. The designation must be made in written form that is acceptable to us. The change will be effective on the date it is signed once it is recorded in the home office. Two or more named beneficiaries will share equally in the proceeds unless otherwise specified. If any beneficiary dies before the Insured, the rights and interest of such beneficiary will automatically terminate. Only those beneficiaries who survive the Insured are eligible to share in the proceeds. If no beneficiary survives the Insured, we will pay the proceeds to the Insured's estate. Assignment The rights and proceeds may be assigned by the Insured. The assignment must be made in writing on a form acceptable to us. It must be an absolute assignment that transfers all rights of the Insured under the Policy, except those of an irrevocable beneficiary. The assignment may be made to one or more of the following relatives of the Insured: a spouse, children, parents or siblings. It may also be made to the trustee of a trust for one or more of those relatives. We are not responsible for the validity or results of the assignment. Form 100GL(PA) 4 Exclusions No benefit will be paid for any loss that results from or is caused directly, indirectly, wholly or partly by: · intentional self-injury, suicide or attempted suicide, while sane; · a war or act of war; DEATH BENEFIT Payment of Proceeds Facility of Payment Upon receipt of proof of the death of the Insured, we will pay to the designated beneficiary the amount of insurance shown in the Schedule of Benefits. Interest will be paid on proceeds not paid within 30 days after the death of the Insured. The rate will be declared by us, but will never be less than 4% per annum. If due proof of death is submitted to us more than 180 days following the date of death of the Insured, interest shall accumulate and be payable from the date the proof is submitted, to the date the policy proceeds are paid. Benefits will be paid in a single lump sum unless a settlement option is chosen during the life time of Insured.. If there is no surviving named beneficiary, we may use our judgment and pay up to $250.00 of the proceeds in total to a person(s) appearing to have incurred expenses in connection with a fatal illness or for the burial of the Insured. Any payment made in good faith, fully discharges us to the extent of the payment. Spendthrift Clause To the extent allowed by law, no benefit of the Policy is subject to the claim or legal process of a creditor of an Insured or a beneficiary. PREMIUMS When to Pay The first premium is due as of the effective date, and is payable in advance. All premiums after the first premium are payable on or before the date they are due and must be received by us in our home office. A receipt will be available upon request. Grace Period This Policy allows a grace period of 31 days for premium payments except the first. Premiums not paid on or before the due date, may be paid during the 31-day period immediately following the due date. Coverage will continue during the grace period. Form IOOGL(PA) 5 If the premium is not paid by the end of the grace period, all coverage will terminate. Continued Coverage Without Payment Premiums due for an Insured who becomes totally disabled will be waived. Coverage will continue to be in force during the period of total disability if: · the Insured ceases to be in an eligible class; · the disability starts while the person is insured under this policy and under age 60; · the disability has been continuous for at least nine (9) months; and · we approve the Insured as totally disabled. The amount of insurance is the amount that the Insured was eligible for at the start of the disability. The amount will reduce at the ages shown in the Application and terminate at retirement as if the person were not disabled. Proof of Disability Written notice and the first proof of total disability must be received by our Home Office within 12 months from the start of the period of total disability. Proof of continued total disability must be given as often as we deem necessary within 90 days of the date of request. After the first two years of total disability, proof will not be required more than once a year. We may require an examination at our expense made by a physician approved by us. Termination of The Policy This Policy will terminate on the date of one of following events: · the date the grace period expires for nonpayment of sufficient premium; or · the date the Policyholder requests termination of the policy. Termination of the Policy will not end coverage for an Insured that is totally disabled. Coverage will continue until the earliest of: · the end of a period of total disability. Form 100GL(PA) 6 · the date the Insured ceases to be totally disabled · failure to provide written proof of continued total disability within the time required~ Termination of Coverage The coverage on the Insured will terminate on the earliest of: · the date the Insured ceases to be a member of an eligible class; · the date the Insured's eligible class is eliminated; · the date the Policy is terminated; · the date premiums remain unpaid at the end of the grace period; · the date the Insured requests termination of coverage; · the date the lnsured's employment or group membership terminates; · the date the Insured dies. Conversion Rights CONVERSION OPTION If the lnsured's insurance coverage ends because of termination of group membership/employment or membership in the class or classes eligible for coverage under the policy, all or part of the amount of insurance that ceases may be converted to an individual policy of life insurance. If the policy terminates, or there is an amendment of the policy to terminate the Insured's eligible class, or an amendment to reduce the amount of insurance available in the Insured's eligible class, and the Insured has been covered under the Policy for at least five years, coverage may be converted for an amount not more than the smaller of: · $10,000.00; or the amount of the terminated insurance less the amount any life insurance for which the Insured becomes eligible under any other group policy within 31 days; provided that any amounts of insurance that shall have matured prior to termination are not included in the Form 100GL(PA) 7 amount of terminated insurance. Conversion Policy The conversion policy will be any type of individual life insurance policy, other than term life insurance, then being issued by us. The conversion policy will not include accidental death, disability or other supplementary benefits. It will be issued without evidence of insurability. The premiums for the conversion policy will be at our usual rate for its type and amount, the lnsured's class of risk and the Insured age on the last birthday of its effective date. To exercise the conversion option, the Insured must submit a written application and the first premium payment within the conversion period. The conversion period is the 31 days immediately following termination of all or part of coverage. The policy will take effect at the end of the conversion period. Death During the Conversion Period If the Insured dies during the conversion period, the amount of life insurance that would have been converted to an individual policy shall be payable under the group policy whether or not the application for the individual policy or payment of the first premium has been made. Form IOOGL(PA) 8 ELIGIBILITY AND EFFECTIVE DATE Eligibility Requirements Eligibility for coverage under this Policy will be effective from the first day that, as shown in the application, the proposed insured: · is affiliated with the Policyholder as an employee or group member; · is in an eligible classes; and · completes the service waiting period. No corporate officer or director will be eligible solely due to title. A partner or a sole proprietor will not be eligible solely due to position. If the proposed insured requests coverage above the maximum amount specified in the application, the Evidence of Insurability Requirement must be met. The proposed insured must be an active full-time employee to be eligible. There will be no multiple coverage for insured who are associated with more than one group covered under the same group policy. Eligibility of a member or employee of a covered group will be decided by the Policyholder. The total hours worked by an employee for all covered groups will be used in figuring full-time employee status. The service waiting period of a former employee whose employment was involuntarily terminated and who is rehired will be reduced if rehired within one year of termination or ceased work due to entry into the armed forces and returns to work in the time prescribed by law. In such a case, the employees period of service before leaving work will be credited toward the present service waiting period. Active Work Requirement An employee must be at active work for new coverage to take effect. Active work is work preformed an active, full-time employee. The employee will be considered at active work on a regularly scheduled non-working day if the employee is not then disabled and could have been engaged in active work had it been a work day and was engaged in active work on the last preceding regular work day. Form 100GL(PA) 9 If the employee is not at active work on the date that coverage is to take effect, the effective date will be deferred until the first day that the employee is at active work and meets all other requirements need to affect the coverage. Evidence of Insurability Requirement When evidence of insurability is a condition for coverage, it must be in a form set by us. All evidence required to evaluate the proposed insured as an acceptable risk must be given to us. The requirement will be met on the date we accept the evidence. Enrollment Requirement A proposed insured must enroll for coverage that is shown to be contributory in the application for it to become effective. Coverage is contributory when the Insured must pay all or part of its premium. Enrollment is making written request for coverage on a form acceptable to us. The form may include a payroll deduction authorization that allows for the deduction of any required premium contributions from the employee's wages. The enrollment form must be completed and signed by the proposed insured. Effective Date Continuation During Non- Working Periods Coverage will be effective on the first day of the policy month that coincides with or next follows the date the following requirements are met: · the Eligibility Requirement · the Active Work requirement · the Evidence of Insurability Requirement · the Enrollment Requirement. This provision applies to all coverage other than weekly income benefits that may be a part of the plan. An Insured may remain in the eligible class for a limited time if active full-time work ceases due to disability; leave of absence, layoff, or change to a pan-time status. However, this continuance will be on the earliest of these times: the date that the lnsured's continuance in the eligible class is ended by the Policyholder. The date must be set in a way that all employees are treated the same; for disability, the end of the 12 policy month period that next follows the end of the policy month in which that person last worked as an active full-time employee; Form 100GL(PA) 10 for leave of absence, layoff or change to part-time status, the end of the policy month period that next follows the end of the policy month in which the Insured last work as an active full-time employee. However, this continuance will not apply to an Insured who is entering the armed forces of any country. While the Insured is being continued in an eligible class as stipulated above, insurance benefits will be based on the benefits of that Insured's eligible class on the last day of active, full-time work and are subject to the reductions in benefits of the lnsured's eligible class. Form IOOGL(PA) 11 ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS Benefit Payable If an Insured suffers a covered loss, other than loss of life, because of an injury caused by an accident, the loss must occur within 90 days after the date of the accident. Notice of the loss must be received by us within 30 days after the start of the covered loss. We will pay the benefit amount when we receive proof, satisfactory to us, of the covered loss, other than loss of life within 90 days of the date of the loss. A covered loss means: · loss of a hand by severance of four entire fingers; · loss of a foot by severance at or above the ankle; · total and permanent loss of sight. Benefit Amounts We will pay the full benefit amount as shown in the Schedule of Benefits for loss of: · life; · sight in both eyes; · both hands; · both feet; or · any combination of foot, hand or sight of one eye. We will pay one half the benefit amount as shown in the Schedule of Benefits for loss of: · sight of one eye; · one hand; or · one foot. We will not pay more than full benefit amount shown in the Schedule of Benefits for all losses due to the same accident. Form 100GL(PA) 12 Payment Options Payment options may be elected for loss of life or dismemberment benefits in place of one sum payment. The options that are available are those offered by us at the time of election. Elections must be written in a form approved by us and received at our home office. Claims will be paid not more than 60 days after we received written proof of loss. The Insured may elect the payment option. That election may not be revoked after the Insured's death. If the Insured dies without choosing a payment option, the beneficiary may elect the payment option. The payee must be a natural person who takes the benefit in to his or her own right. Exclusions No benefit will be paid for any loss that results from or is caused directly, indirectly, wholly or partly by: · intentional self-injury, suicide or attempted suicide, while sane or insane; · bacterial infection, unless the infection results from an accidental bodily injury; · a physical or mental sickness or treatment of that sickness; · voluntary intake of poison except accidental food poisoning, drugs, gas or fumes except in the course of employment; · a war or act of war; · disease of any kind, and any treatment of such disease; · participation in a riot or other civil disorder · an attempt to commit, or committing felony or an assault (except in self defense); flight in an aircraft or spacecraft, or descent from such a craft while in flight, or subsequently drowning, if the insured is a pilot or officer or crew of the craft, is giving or receiving aviation training, has duties relating to the craft or is being flown for the purposes of descent from the aircraft. being legally intoxicated as defined by the law in the state in which the policy is delivered or under the influence of any drug unless it was prescribed for the Insured by a doctor. Form 100GL(PA) 13 SHORT TERM DISABILITY BENEFITS The benefits described in this section are optional. If elected, the Weekly Benefit, Maximum Number of Weeks Payable and Waiting Period referred to in this section are specified under Schedule of Benefits in the application. Short Term Disability Benefit If the Insured becomes totally disabled while insured under this policy, we will pay benefits during the period of total disability at the rate of the Weekly Benefit per week, not to exceed the Maximum Number of Weeks Payable, for any one period of total disability. The Insured must provide proof that the disability is due to a non-occupational sickness or injury and that the regular attendance of a physician is required. Proof must be sent within 30 days after the waiting period. Benefits will begin after the expiration of the waiting period, if any. Duration of Benefits Weekly benefits will be paid up to maximum benefit period. The benefits will end on the earliest of: failure to submit required proof of continuing total disability; · the date total disability ends; or · the date the maximum benefit period ends. Successive periods of total disability separated by less than two weeks of active work, on a full time basis shall be considered one period of total disability unless the subsequent period of total disability is due to injuries or sickness entirely unrelated to the causes of the previous disability and commences after return to active work on a full time basis. If coverage under this Policy ends while the Insured is totally disabled, payment under this benefit will continue as if coverage was still in force under the Policy, for that disability only. Exclusions No benefit will be paid for a disability that results from or is caused directly, indirectly, wholly or partly by: · a mental disorder, chronic alcoholism or drug dependency, except while confined as a bed patient in a medical care facility; Form 100GL(PA) 14 · intentional ~elf-injury, suicide or attempted suicide while sane or insane; · participation in a riot or other civil disorder · a war or act of war Benefit will not be paid for a disability when the Insured: · is not under the regular care of a physician; · performs any work for pay or profit; or · is receiving benefits under workers' compensation or similar law Form 100GL(PA) 15 E LAT SHA DAVIS & YOHE, P.C. A~I-ORNEYS AT LAW PLEASE REPLy TO: Harrisburg WRITER'S E- MALL: smontres@ldylaw.com August 10, 2001 Gary A. Therkildsen, Director Special Investigations MAMSI Life and Health Insurance Company P.O. Box 935 Frederick, MD 21705 Kimber L Latsha Douglas C. Yohe** Glenn R, Davis Kevin M. McKenna*** Jonathan M. Crist Barbara G Graybill Timothy ~Z Garve¥* David C. Marshall 8tevenM Montresor* Christine L. Sudlow* Chadwick O Bogar Duane R Stone Also admitted *NJ **NC, MD ***NJ, DC RE: Juan Rosario, Sr. MAMSI Member No.: M582767267'01 Our File No.: 656-00 Dear Mr. Therkildsen: We are in receipt of the Group Life Insurance Policy which you forwarded at our request on June 29, 2001. After reviewing the policy, we are in disagreement with your decision to void Mr. Rosario's coverage as stated in your letter to Charles Beans of November 24, 2000. Specifically, the policy states that "An insured may remain in an eligible class for a limited time if active full-time. work ceases due to disability; leave of absence, layoff, or change to a part-time status." See Policy, p. 10 (emphasis in original). Based on our investigation, it appears Mr. Rosario became totally disabled on June 8, 2000, and in fact applied for and was determined eligible for Social Security benefits. Under the terms of the policy, coverage would continue until "the end of the 12 policy month period that next follows the end of the policy month in which that person last worked as an active full-time employee." See Policy, p. 10. Accordingly, coverage should have continued until June 30, 2001. Mr. Rosario died on September 6, 2001, within three months of the date of the onset of total disability, well before the expiration of the twelve month coverage period mandated by the policy in cases of disability. Based on the foregoing, we are requesting that you tender the policy proceeds to Ms. Rosario, the designated beneficiary, as soon as possible. If we do not receive a response within 10 days of the date of this letter, we will be forced to file the attached Complaint in order to protect our client's interest. If MAMSI does not agree to forward the proceeds of the life insurance policy to the designated beneficiary, we will have no choice but to construe MAMSI's actions as bad faith, due to the clear and unequivocal language of the policy. As you may be aware, Pennsylvania's 68868 Post Offtce Box 825 o Harrisburg, PA 17108-0825 4720 Old Getv/sburg Road, Suite 101 · Mechanicsburg, PA 17©55 · (717) 761-1880 · }:AX (717) 761-2286 7 Great Vatley Parkway, Suite 221 o Malvem, PA 19355 · (610) 251-6985 · FAX (610) 407-9265 3000 Atrium Way, Suite 251 ° Mt. Laurel, NJ 08054 · (856) 231-535I ° FAX (856) 231-5341 Maryland Telephone: (410) 727-2810 Gary Al Therkildsen, Director August 10, 2001 Page 2 bad faith statute provides for interest, punitive damages, court costs, and attorneys' fees against the insurer at the discretion of the court if the court finds the insurer acted in bad faith. ~hank you for your attention to this matter. Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P~tNCES M. ROSARIO, : MAHSI INSURANCE RESOURCES, LLC, t/d/b/a HAHSI LIFE AND HEAhTH INSUP~tNCE COHPANY, Defendant IN THE COURT OF COHHON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AcrFION LAW No. 01 5198 TO: Curt Long, Prothonotary Please enter the appearance of Heeler Wood Allen & Rahal, hLP by Charles W. Rubendall II and Donald ~. Lewis III on behalf of defendant, reserving its right to respond to plaintiff's complaint pursuant te the A single copy ef all attention of Hr. Rubendall Pennsylvania Rules ef Civil Procedure. items sent by your office te the alone will be satisfactory. KEEFER WOOD ALLEN & RAHAL, LLP Dated: September 20, 2001 By Charles W. Rubendall II I.D. # 23172 Donald H. Lewis III I.D. ~ 58510 210 Wahlut Street P. O. 8ox 11963 Harrisburg, PA 17108-1963 717 255-8010 arid 255 8038 Attorneys for defendant I, Charles W. Rubendall II, Esquire, one of the attorneys for defendant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Steven M. Montresor, Esquire Latsha Davis & Yohe, P.C. P. O. Box 825 Harrisburg, PA 17108 KEEFER WOOD ALLEN & RAHAL, Charles W. Rubendall II LLP Dated: September 20, 2001 KEEFER WOOD ALLEN & RAHAL, L-LP 210 WALNUT 8TFISCrl' FRANCES M. ROSARIO, Plaintiff MAMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSUPA/qCE COMPANY, Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAiqD COUNTY, PENNSYLVANIA : : Ne. 01 5198 CIVIL : Civil Action - Law NOTICE OF REMOVAL OF ACTION TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TO: THE PROTHONOTARY OF THE COURT OF COMMON PLEAS -and- Plaintiff's counsel of record: Steven M. Montresor, Esquire Latsha Davis & Yohe, P.C. P.O. Box 825 Harrisburg, PA 17108-0825 In compliance with 28 U.S.C. ~ 1446(d), you are hereby notified ef the filing efa ne~ice ef removal ef this action te the United States District Court for the Middle District of Pennsylvania. A copy ef the notice ef removal is attached as Exhibit 1. KEEFER WOOD ALLEN & NAHAL, LLP Date: September ~,2y, , 2001 dharles ~. Rubendall II Attorney I.D. ~23172 Donald M. Lewis III Attorney I.D. ~58510 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108 1963 (717) 255 8010 and -8038 Attorneys for defendant MAMSI Insurance Resources, LLC, t/d/b/a MAMSI Life and Health Insurance Company IN THE UNITED STATES DISTRICT cOURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Plaintiff : CASE NO. MAMSI INSURANCE RESOURCES, LLC, : t/d/b/a MAMSI LIFE AND HEALTH : INSURAi~CE COMPANY, : Defendant : FILED HARRISBURG, PA ~OTICE OF REMOVAL Defendant MAMSI INSURANCE RESOURCES, LLC, 2001 MARY E, D'ANDREA, -~M~T LIFE t l - ~03u:y AND HEJ%LTH INSURAIqCE COMPANY (,,MAMSI"), by its counsel, Keefer Wood Allen & Rahal, LLP, hereby files its notice of removal of this action to this Court and states as follows: 1. ~SI is named as a defendant in civil Action No. 01- 5198 in the Cu~erland County, Pennsylvania, Court of Common Pleas (the ,,State Court Action"). 2 The Complaint in the State Court Action was filed with the Prothonotary of the Court of Common Pleas of Cu~erland County, Pennsylvania on August 31, 2001. ~SI was served with the complaint by certified mail, postmarked on or about August 31, 2001. 3. This notice is being filed within thirty (30) days after defendant received a copy of plaintiff's initial pleading setting forth the claims for relief upon which plaintiff's action is based. 4. Copies of all process, pleadings, and orders served upon the defendant in the State Court Action are attached hereto as Exhibit A. 5. The claims for relief alleged against MAMSI in the State Court Action arise under, and are governed by, the Employee Retirement Income Security Act of 1974, 29 U.S.C. §~ 1001 e__~t seq., for the following reasons, among others that appear on the face of the complaint and/or the exhibits attached thereto: a. Plaintiff's allegations relate to an employee welfare benefit plan, namely, a group insurance plan established by Best Pontiac Olds Cad GMC ("Best") to provide a program of life insurance, accidental death and dismemberment, and short term disability benefits to its employees, including plaintiff's decedent, Mr. Rosario (see complaint, ¶¶3-4, and exhibits A, C and D thereto); -2- b. The class of beneficiaries is ascertainable as full- time employees of Best working at least 35 hours per week on a regular year-round basis (see exhibits C and D to complaint); c. The employer ~paid premiums on Mr. Rosario's behalf as a participant in the Group Policy provided by [defendant] to Best for its employees" (complaint, ¶5); and d. The plan established procedures for receiving benefits (see exhibit D to complaint). Accordingly, this Court has original subject matter jurisdiction over this action pursuant to 28 U.S.C. ~ 1331 and 29 U.S.C. ~ 1144. 6. States 7. This action may properly be removed to this United District Court pursuant to 28 U.S.C. § 1441(b) . This action was commenced within the judicial district and division of the United States District Court for the Middle District of Pennsylvania. 28 U.S.C. § 1441(a). 8. Promptly after the filing of this notice of removal, MAMSI shall give written notice of the removal to the plaintiff through her attorney of record in the State Court Action and to -3- the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, as required by 28 U.S.C. § 1446(d). KEEFER WOOD ALLEN & R_AHAL, LLP Date: September ~, 2001 Chariest. Rubendall II Attorney I.D. #23172 Donald M. Lewis III Attorney I.D. #58510 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8010 and -8038 Attorneys for defendant MAMSI Insurance Resources, LLC, t/d/b/a MAMSI Life and Health Insurance Company -4- Exl~l~t A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy #23338 issued to her father, Juan Rosario, Plaintiff I~AMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant NO. 01- CIVIL ACTION - LAW 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy #23338 issued to her father, Juan Rosario, Plaintiff I~AMSI INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant NO. CME ACTION - LAW COMPLAINT AND NOW, comes Plaintiff, Frances M. Rosario, by and through her attorneys, Latsha Davis & Yohe, P.C., and brings this cause of action against Defendant MAMSI Life and Health Insurance Company, and avers the following: 1. The Plaintiff is Frances M. Rosario, an adult individual residing at 400 East Main Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Upon information and belief, the Defendant is MAMSI Insurance Resources, LLC, t/d/b/a MAMSI Life and Health Insurance Company (hereinafter 'MAMSI'), a foreign corporation registered to do business in Pennsylvania with its main corporate offices at 4 Taft Court, Rockville, Maryland. 3. This matter involves a dispute regarding Plaintiff Rosario's entitlement to the proceeds of a life insurance policy issued by Defendant MAMSI as a group policy to Best Pontiac Olds Cad GMC ("Best"). 4. Juan Rosario, Plaintiff Rosario's father, was employed by Best as an auto body repairman. Upon information and belief, his employment with Best commenced April 6, 1998. 5. Best paid premiums on Mr. Rosario's behalf as a participant in hhe Group Policy provided by Defendant MAMSI to Best for its employees. 6. Mr. Rosario designated his daughter, Plaintiff Rosario, as the beneficiary under the policy. See Exhibit "A", Certification of Coverage. In No~x~ember of 1999, Mr. Rosario was diagnosed as suffering from lung cancer. 8. On or about June 8, 2000, doctors determined that Mr. Rosario's lung cancer had metastasized to his brain. 9. Mr. Rosario died on or about September 6, 2000. The official cause of death was listed as metastic squamous bronchogenic carcinoma. See Exhibit 'B', copy of Death Certificate. 10. Mr. Rosario had met all eligibility requirements to be entitled to the benefits under the life insurance policy. 11. Some time after Mr. Rosario's death, Best notified MAMSI of Mr. Rosario's death. 12. On or about November 24, 2000, Defendant MAMSI forwarded a letter to Best indicating that "Juan Rosario is not eligible for coverage under [Best's] Group Life and Disability Policy." A copy of this letter is attached hereto as Exhibit "C". 13. The Group Risk Assessment referred to in the November 24, 2000 letter does not indicate that fulfillment of the active work requirement was a condition of coverage. See Exhibit "C'. 14. The Group Risk Assessment contains neither definitions nor any other binding terms pertaining to eligibility. 15. At no time did Defendant MAMSI contact Plaintiff Rosario regarding her entitlement to the proceeds of the policy. 16. On or about Jt~te 25, 2001, Plaintiff Rosario obtained a copy qf the policy in effect for the Year 2000. See Exhibit 'D', Cover Letter and Policy. 17. Contrary to the denial letter of November 24, 2000, the policy clearly and unequivocally provides that "An insured may remain in an eligible class for a limited time if active;fidl-time work ceases due to disability; leave of absence, layoff, or change to a part-time status." See Exhibit 'D', Policy, p. 10 (emphasis in original). 18. On or about June 8, 2000, Mr. Rosario became totally disabled as a result of the cancer, which had progressed from his lung to his brain. 19. Mr. Rosario applied for and received Social Security benefits in the form of Supplemental Security Income. 20. Under the terms of the Group Life Insurance Policy, coverage would continue until "the end of the 12 policy month period that next follows the end of the policy month in which that person last worked as an active full-time employee. See Exh'bit 'D', Policy, p. '10 (emphasis in original). 29. Plaintiff Rosario is entitled to interest on the proceeds in an amount not less than 4% per annum from the date MAMSI was informed of Mr. Rosario's death. 30. Defendant MAMSI's failure to pay the amounts due and owing to Plaintiff Rosario as more fully set forth above constitutes a breach of the Group Life Insurance Policy. WHEREFORE, Plaintiff Rosario requests that this Honorable Court enter judgment in her favor and against Defendant MAMSI in the amount of $10,000.00 plus interest as required by the Policy, an amount not to exceed $25,000.00, requiring compulsory arbitration in the County of Cumberland. COUNT II - Bad Faith Plaint-iff Rosario v. Defendant MAMSI 31. Plaintiff incorporates paragraphs 1 through 30 as gf fully set forth herein. 32. The language of the policy is clear and unequivocal that in the case of total disability, coverage would continue for at least an additional 12 months after the date of onset of disability. 33. Defendant MAMSI's assertion that Juan Rosario is not eligible for coverage under the Group Life and Disability Policy due to him not fulfilling active work requirements is in direct contravention to the clear and unequivocal language of the Policy mandating coverage for at least 12 months after the onset of the date of disability. 34. Defendat~t MAM$I's voiding of Juan Rosario's life insurance coverage demo~strates a t'~ckless dis~'e~qa~-d f(n' the ~'ights ot: the ins~'ed. 35. Defendant MAMSI's refusal to pay proceeds to Plaintiff Rosario on the basis stated in its November 24, 2000 letter demonstrates a reckless disregard for the rights of the insured. 36. Defendant MAMSI's refusal to pay proceeds to Plaintiff Rosario is frivolous and unfounded. 37. Defendant MAMSI's refusal to provide benefits, as well as Defendant MAMSI's actions and omissions as more fully set forth above, constitutes bad faith under 42 C.S.A. § 8371. WHEREFORE, Plaintiff Rosario requests that this Honorable Court enter judgment in her favor and against Defendant MAMSI in the amount of $10,000.00 plus interest as required by the Policy, together with attorneys fees, court costs, interest and punitive damages to be calculated in accordance with 42 Pa.C.S.A. § 8371, an amount not to exceed $25,000.00, requiring compulsory arbitration in the County of Cumberland. Dated: ~3F (~ [ By: Respectfully Submitted, LATSHA DAVIS & YOHE, P.C. Steven M. Montresor Attorney I.D. No. 74244 P.O. Box 825 Harrisburg, PA 17108 (717) 761-1880 Attorneys for Plaintiff, Frances M. Rosario IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FRANCES M. ROSARIO, as named beneficiary under the Group Life Insurance Policy of her father, Juan Rosario, Plaintiff MAM$I INSURANCE RESOURCES, LLC, t/d/b/a MAMSI LIFE AND HEALTH INSURANCE COMPANY, Defendant NO. CML ACTION - LAW VERIFICATION I, Frances M. Rosario, hereby state that I am the Plaintiff in the within action and further verify that the facts set forth in this Complaint are txue and correct to the best of my knowledge, information and belief; and .acknowledge that the statements in said Complaint are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. [FranCes M. R°~ar~ ~ - C4 Suppl~ CERTIFICATION OF COVERAGE Pollcyhotder= Insured Person= Policy Number: Certificate ~umber: rtlficate E~fectlve Date: Beneficiary: Death Benefit: mental Death Benefit: BEST PONTIAC-OLDS-CAD-GMC ROSARIO, JUAN 23338 582767267 Ol FEB 2000 FRANCES M ROSARIO $10,000.00 (reduces to 65% terminates at age 70.) $o.o0 $0.00 President at age 65, Ill This is co certify that the in£ormadon here given is correctly copied from an original cerutzcate or death duly' tiled with me as Lg. 0a] Regislrar. The original certificate will be £orwarded co the State Vkal Records Office for permanent filing. 'WARNING: It is illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $2.00 P 6669 43 No. SEe 0 ~ Z~ CERTIFICATE OF OEATH OPTIMLIM /V~uM$ [ ALLIANCE M.D. IPA CHOICb -'~,~-,~:~,.,~--- ~'~'~.) IvlAPSl November 24, 2000 Best Pontiac-Olds-Cad-GMC Attn: Charles Beans, Controller 100 Eisenhower Drive PO Box 79 Hanover, PA 17331 RE: Juan Rosario - MAMSI Life and Health Insurance Co~npany (MLH) Member - M582767267'01 Dear Mr. Beans: It has come to the attention of MAMS1 Life and Health Insurance Company (MLH) that Juan Rosario is not eligible for coverage under your Group Life and Disability Policy. Please refer to page I, #1 of your Group Risk Assessment, it states, "Full-time is defined to be employees working a minimum of 35 hours per week on a regnlar year-round basis." Information provided by your company shows that Juan Rosario's last day of work was June 7, 2000. At this time MAMSI Life and Health Insurance Company (MLH) is voiding Mr. Rosario's Life and Disability Coverage due to him not £ulfilling the Active Work Requirements. If you have any questions please call me at (301) 360-8703. Sincerely, By; Gary Therkildsen Director Special Investigations MAMSI Life and Health Insurance Company (biLl-I) CC: blark Biancucci, Group Services Kathlccn Graham, Customer Support Suzanne Mayhew, Life and Disability :~hit i. d~e &vcriBe abe o~ the ~ro[l~ e~ploye%'~ ~" ' · Rcq~e~d.eff~c ~e due: you h~ve .~y emp[o7~ age ~5 ~ployer pre.urn con~ibudon to: Em.p{o~ee ~ve~age:. :./~. %~'~ De~ndent ~verlg, thc~c any ~crenc or prio~ cmp[oyc~ ~r depcnd~ts ~ov~d under'COBRA? you hive ~n~ cmpIo~l or any ~nowlcdsc o~ c~p~oyecl"dcpcn~h[~ Who llve o(the a~el and who (cqu;re he~[c~ covcragc? .C ¥ES X OPTIMUM MAMS] ALUANCE M.D. IPA c~o~c~ ................. ppG June 25, 2001 Steven M. Montresor, Esq. Latsh~, Davis & Yohe: P.C. PO Box 825 Harrisburg, PA 17108-01125 RE: .Juan Rosario, Sr. tMAMSI Member No.: M582767267'01 Your File No.: 344-01 Dear Mr. Montresor: /ts requested in your letter of June 20, 2001, please find enclosed the Group Li~e and Disability policy for Best Pontiac-Olds-Cad-GMC, Group #23338. This po!icy was in effect for thc calendar year 2000. Should you have an)' questions or need additional information, please contact rne at (301) 360-8703. Sincerely, / ~aary Therkildsen Director, Special [nve:;tigations MAMSI Life and Health Insurance Company(MLH Life and Health Insurance Company Group Life Insurance Polic This policy is a non-participating policy Rockville, MD Form 100 GL (PA) TABLE OF CONTENTS MAJOR SECTIONS DEFINITIONS ................................................ ! GENERAL PROVISIONS .......................................... 3 DEATH BENEFIT .......................................... , . . . 5 PREMIUMS .................................................. 5 CONVERSION OPTION .......................................... 7 ELIGIBILITY AND EFFECTIVE DATE ................................ 9 ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS ................. 12 SHORT TEILM DISABILITY BENEFITS ............................... 14 DEFINITIONS The following terms which appear in bold italics throughout the Policy have special meaning. Active, Full-time Employee An active employee performs all of the duties of a job with the employer covered under this Policy. This job may be at either the employer's normal place of employment or at another place to which the regular business operations of the employer required the employee to go. To be full-time, an employee must work for an employer covered under this Policy, at least 30 hours each week and on the regular payroll of the employer for that work. An active and full-time employee, as defined above, may also include members of an association or employees of member firms of an association to which the Policy is issued. Insured means the person whose life is insured. Period of Total Disability This is the period of time that a person is totally disabled. New periods due to the same or related causes must be separated by return to active work for 30 consecutive days or more. Periods due to different causes must be separated by a return to active work for at least one day. No new waiting period will be applied if there are 30 or fewer days between periods of disability. Partial Disability means as results of the sickness or injury which caused total disability, the Insured is: ~ unable to perform one or more, but not all, of the material and substantial duties of any other occupation on a full time or part time basis; 2 able to perform all of the material and substantial duties of any occupation on a part time basis. Partially Disabled Policyholder see Partial Disability means the corporation, association, partnership or proprietorship that purchased this plan of group insurance. Service Waiting Period This is the period of time. set forth in the application that the proposed insured is not eligible for coverage under this l>olicv. Form Total Disability means unable to perform the main duties of the Insured's &cupa[ion. After the first continuous year, the Insured must be unable to perform the duties of any occupation for which the Insured is qualified by education, training or experience and is not engaged in gainful employment. Totally Disabled see Total Disability. Waiting Period The period of consecutive days of total disability for which no benefit is payable. The waiting period begins on the first day of total disability occurring after the effective date of coverage. We, Us, Our refers to MAMSI Life and Health Insurance Company. GENERAL PROVISIONS The Contract The Policy, the master application and the enrollment applications will constitute the entire contract. A copy of any application of the poliCYowner shall be attached to the policy when issued. Any statements made by the Policyholder or the Insured are considered representations and not warranties. Authority to Modify No agent or other person has the authority to modify or change the provisions of this Policy except by an agreement in writing signed by our president, our vice president or our secretary and the Policyholder. Certificates We will issue to the Policyholder for delivery to each Insured, an individual certificate. The Insured is the Certifica~e~holder unless otherwise specified. It will summarize the benefits of the Policy, to whom the benefits are payable and the rights of the Certificateholder when the coverage ends. The Certificate is not a part of the Policy. It does not modify any of the conditions or provisions of the Policy. Group Policy Inspection A copy of the Policy is at the office of the Policyholder. It is available for inspection by covered persons during regular business hours. Ownership of Policy The Policyholder is the owner of the Policy and may request changes or an amendment to the Policy without the consent of the Insured, any assignee or beneficiaries. However, no change may affect the Insured's right to change the beneficiary or the right to exemise the conversion privilege. Essential Data Incontestability The Policyholder will keep a record of the insured persons. This record will contain all of the data specified by us. Reports from this data will be furnished as needed for administering terms of the Policy and to determine premiums rates. The Policy cannot be contested by us, after it has beeu in force during thc lifetime of the Insured for two (2) years from the effective date. c×ccpt I't>r nonp:tymcl~t of preilliu~l/s. No statement made by any person :~sttt'cd under thc l'olicy relating to thc [tl.vtlrcd'x i::surability shall bc used in contesting the validity of the insurance after such itlsuranc~ has been in force for two (2) years during the Insured's lifetime unless such statement is contained in a written instrument signed by the Insured and a copy has been furnished to the Insured, his beneficiary or his personal representative. Misstatement Beneficiary If the Insured's age, sex or any other essential data has been misstated, an equitable adjustment shall be made in the premiums or the amount of insurance. Any premium due will be based on the correct amount of insurance or rate. We will rely only on the data furnished by the Policyholder in making corrections. The Insured has the right to designate the beneficiary. This designation may be changed by the Insured any time unless it is a designation specifically stated to be irrevocable.-Changing an irrevocable beneficiary will require the signature of the irrevocable beneficiary. The Policyholder may never be a designated beneficiary. The designation must be made in written form that is acceptable to us. The change will be effective on the date it is signed once it is recorded in the home office. Two or more named beneficiaries will share equally in the proceeds unless otherwise specified. If any beneficiary dies before the Insured, the rights and interest of such beneficiary will automatically terminate. Only those beneficiaries who survive the Insured are eligible to share in the proceeds. If no beneficiary survives the [rtsured, we will pay the proceeds to the Insured's estate. Assignment The rights and proceeds may be assigned by the Insured. The assignment must be made in writing on a form acceptable to us. It must be an absolute assignment that transfers all rights of the Insured under the Policy, except those of an irrevocable beneficiary. The assignment may be made to one or more of the following relatives of the Insured: a spouse, children, parents or siblings. It may also be made to the trustee of a trust for one or more of those relatives. We are not responsible for the validity or results of the assignment. Exclusions No benefit will be paid for any loss that results from or il cause~l directly, indirectly, wholly or partly by: · intentional self-injury, suicide or attempted suicide, while sane; · a war or act of war; Payment of Proceeds Facility of Payment DEATH BENEFIT Upon receipt of proof of the death of the Insured, we will pay to the designated beneficiary the amount of insurance shown in the Schedule of Benefits. Interest will be paid on proceeds not paid within 30 days after the death of the Insured. The rate will be declared by us, but will never be less than 4% per annum. If due proof of death is submitted to us more than 180 dayg:*~'ollowing the date of death of the Insured, interest shall accumulate and be payable from the date the proof is submitted, to the date the policy proceeds are paid. Benefits will be paid in a single lump sum unless a settlement option is chosen during the life time of Insured.. If there is no surviving named beneficiary, we may use our judgment and pay up to $250.00 of the proceeds in total to a person(s) appearing to have incurred expenses in connection with a fatal illness or for the burial of the Insured. Any payment made in good faith, fully discharges us to the extent of the payment. Spendthrift Clause To the extent allowed by law, no benefit of the Policy is subject to the claim or legal process of a creditor of an Insured or a beneficiary. PREMIUMS When to Pay Grace Period The first premium is due as of the effective date, and is payable in advance. All premiums after the first premium are payable on or before ' the date they are due and must be received by us in our home office. A receipt will be available upon request. This Policy allows a grace period of 31 days for premium payments except the first. Premiums not paid on or before the due date. may be paid during thc 31-day pcr~od immediately following thc duc date Fo: ::! I,il;(;[.{ p:\ } 5 If the premium is not paid by the end of the grace period, all coverage will terminate. Continued Coverage Without Payment Premiums due for an Insured who becomes totally disabled wil. l be waived. Coverage will continue to be in force during the period of total disability if: the Insured ceases to be in an eligible class; the disability starts while the person is insured under this policy and under age 60; · the disability has been conti~uous for at least nine (9) months; and · we ap_prove the Insured as totally disabled. The amount of insurance is the amount that the Insured was eligible for at the start of the disability. The amount will reduce at the ages shown in the Application and terminate at retirement as if the person were not disabled. Proof of Disability Written notice and the first proof of total disability must be received by our Home Office within 12 months from the start of the period of total disability. Proof of continued total disability must be given as often as we deem necessary within 90 days of the date of request. After the first two years of total disability, proof will not be required more than once a year. We may require an examination at our expense made by a physician approved by us. Termination of The Policy This Policy will terminate on the date of one of following events: · the date the grace period expires for nonpayment of sufficient premium; or · the date the Policyholder requests termination of the policy. Termination of the Policy will not end coverage for an Insured that is totally di.vabled. Coverage will continue until the earliest ol': · {11~ ,:nd ~l ;~ pcrb~d ~f total di.~abilitv · the date the Insured ceases to be totally disabled · failure to provide written proof of continued total disability within the time required. Termination of Coverage The coverage on the Insured will terminate on the earliest of: · the date the Insured ceases to be a member of an eligible class; · the date the Insured's eligible class is eliminated; · the date the Policy is terminated; · the date premiums remain unpaid at the end of the grace period; · the date the Insured requests termination of coverage; · the date the Insured's employment or group membership terminates; the date the Insured dies. Conversion Rights CONVERSION OPTION If the Insured's insurance coverage ends because of termination of group membership/employment or membership in the class or classes eligible for coverage under the policy, all or part of the amount of insurance that ceases may be converted to an individual policy of life insurance. If the policy terminates, or there is an amendment of the policy to terminate the Insured's eligible class, or an amendment to reduce the amount of insurance available in the Insured's eligible class, and the Insured has been covered under the Policy for at least five years, coverage may be converted for an amount not more than the smaller of: · $10,000.00; or the amount of the terminated insurance less the amount any life insurance for which the lasttred becomes eligible under any other group policy within 31 days; provided that any amoums of insurance that shall have matured pt'ior to tcrn~inati,ql arc llot included itl For'ru Iill)(;I., p..\, 7 amount of terminated insurance. Conversion Policy The conversion policy will be any type of individual life insurance policy, other than term life insurance, then being issued by us. The conversion policy will not include accidental death, disability or other supplementary benefits. It will be issued without evidence of insurability. The premiums for the conversion policy will be at our usual rate for its type and amount, the Insured's class of risk and the Insured age on the last birthday of its effective date. To exemise the conversion option, the Insured must submit a written application and the first premium payment within the conversion period. The conversion period is the 31 days immediately following termination of all or part of coverage. The policy will take effect at the end of the conversion period. Death During the Conversion Period If the Insured dies during the conversion period, the amount of life insurance that would have been converted to an individual policy shall be payable under the group policy whether or not the application for the individual policy or payment of the first premium has been made. ELIGIBILITY AND EFFECTIVE DATE Eligibility Requirements Eligibility for coverage under this Policy will be effective from the first day that, as shown in the application, the proposed insured: · is affiliated with the PollcyhoMer as an employee or group member; · is in an eligible classes; and · completes the service waiting period. No corporate officer or director will be eligible solely due t~ title. A partner or a sole proprietor will not be eligible solely due to position. If the proposed insured requests coverage above the maximum amount specified in the application, the Evidence of Insurability Requirement must be met. The proposed insured must be an active full-time employee to be eligible. There will be no multiple coverage for insured who are associated with more than one group covered under the same group policy. Eligibility of a member or employee of a covered group will be decided by the Policyholder. The total hours worked by an employee for all covered groups will be used in figuring full-time employee status. The service waiting period of a former employee whose employment was involuntarily terminated and who is rehired will be reduced if rehired within one year of termination or ceased work due to entry into the armed fomes and returns to work in the time prescribed by law. In such a case, the employees period of service before leaving work will be credited toward the present service waiting period. Active Work Requirement An employee must be at active work for new coverage to take effect. Active work is work preformed an active, full-time employee. The employee will be considered at active work on a regularly scheduled non-working day if the employee is not then disabled and could have been engaged in active work had it been a work day and was engaged in acti,.c work on thc l:~st preceding rugul:lr w{~rk day7 If the employee is not at active work on the date that coy&age.il to take effect, the effective date will be deferred until the first day that the employee is at active work and meets all other requirements need to affect the coverage. Evidence of Insurability Requirement When evidence of insurability is a condition for coverage, i~ must be in a form set by us. All evidence required to evaluate the proposed insured as an acceptable risk must be given to us. The requirement will be met on the date we accept the evidence. Enrollment Requirement A proposed insured must enroll for coverage that is shown to be contributory in the application for it to become effective. Coverage is contributory when the Insured must pay all or part of its premium. Enrollment is making written request for coverage on a form acceptable to us. The form may include a payroll deduction authorization that allows for the deduction of any required premium contributions from the employee's wages. The enrollment form must be completed and signed by the proposed insured. Effective Date Continuation During Non- Working Periods Coverage will be effective on the first day of the policy month that coincides with or next follows the date the following requirements are met: · the Eligibility Requirement · the Active Work requirement · the Evidence of Insurability Requirement · the Enrollment Requirement. This provision applies to all coverage other than weekly income benefits that may be a part of the plan. An Insured may remain in the eligible class for a limited time if active full-time work ceases due to disability; leave of absence, layoff, or change to a part-time status. However, this continuance will be on the earliest of these times: the date that the Insured's continuance in the eligible class is ended by the Policyholder. The date must be set in a wap that all employees are treated the same; disability, thc end of the 12 policy month period that next f~llt)ws the cml of thc policy month in which that person last w~u'kcd as ;m active ftdl-titne employee: q for leave of absence, layoff or change to part-time status, the end of the policy month period that next follows the end of the policy month in which the Insured last work as an active full-time employee. However, this continuance will not apply to an Insured who is entering the armed forces of any country. While the Insured is being continued in an eligible class as stipulated above, insurance benefits will be based on the benefits of that lnsured's eligible class on the last day of active, full-time work and are subject to the reductions in benefits of the Insured's eligible class. [:(1J'lll [<~(1(}1.!1'.\1 I I ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS Benefit Payable If an Insured suffers a covered loss, other than loss of life, because of an injury caused by an accident, the loss must occur within 90 days after the date of the accident. Notice of the loss must be received by us within 30 days after the start of the covered loss. We will pay the benefit amount when we receive proof, satisfactory to us, of the covered loss, other than loss of life within 90 days of the date of the loss. A covered loss means: · loss of a hand by severance of four entire fingers; · loss of a foot by severance at or above the ankle; · total and permanent loss of sight. Benefit Amounts We will pay the full benefit amount as shown in the Schedule of Benefits for loss of: · life; · sight in both eyes; · both hands; · both feet; or · any combination of foot, hand or sight of one eye. We will pay one half the benefit amount as shown in the Schedule of Benefits for loss of: · sight of one eye; · one hand; or · one foot. We will not pay more than full benefit amount shown tn ~he Schedule of Benefits for all losses duc to the same accident. Payment Options Payment options may be elected for loss of life or dismemberment benefits in place of one sum payment. The options that are available are those offered by us at the time of election. Elections must be written in a form approved by us and received at our home office. Claims will be paid not more than 60 days after we received written proof of loss. The Insured may elect the payment option. That election may not be revoked after the lnsured's death. If the Insured dies without choosing a payment option, the beneficiary may elect the payment option. The payee must be a natural person who takes the benefit in to his or her own right. Exclusions No benefit will be paid for any loss that results from or is caused directly, indirectly, wholly or partly by: · intentional self-injury, suicide or attempted suicide, while sane or insane; · bacterial infection, unless the infection results from an accidental bodily injury; · a physical or mental sickness or treatment of that sickness; voluntary intake of poison except accidental food poisoning, drugs, gas or fumes except in the course of employment; a war or act of war; disease of any kind, and any treatment of such disease; participation in a riot or other civil disorder an attempt to commit, or committing felony or an assault (except in self defense); flight in an aircraft or spacecraft, or descent from such a craft while in flight, or subsequently drowning, if the insured is a pilot or officer or crew of the craft, is giving or receiving aviation training, has duties relating to the craft or is being flown for the purposes of descent from the aircraft. being legally intoxicated as defined by the law in the state in which the policy is delivered or under the influence of any drug unless it '.~ :~s prescribed for the Insured by a doctor. Form SHORT TERM DISABILITY BENEFITS The benefits described in this section are optional. If elected, the Weekly Benefit, Maximum Number of Weeks Payable and Waiting Period referred to in this section are specified under Schedule of Benefits in the application. Short Term Disability Benefit If the Insured becomes totally disabled while insured under this policy, we will pay benefits during the period of total disability at the rate of the Weekly Benefit per week, not to exceed the Maximum Number of Weeks Payable, for any one period of total disability. The Insured must provide proof that the disability is due to a non-occupational sickness or injury and that the regular attendance of a physician is required. Proof must be sent within 30 days after the waiting period. Benefits will begin after the expiration of the waiting period, if any. - __ Duration of Benefits Weekly benefits will be paid up to maximum benefit period. The benefits will end on the earliest of: failure to submit required proof of continuing total disability; · the date total disability ends; or · the date the maximum benefit period ends. Successive periods of total disability separated by less than two weeks of active work, on a full time basis shall be considered one period of total disability unless the subsequent period of total disability is due to injuries or sickness entirely unrelated to the causes of the previous disability and commences after return to active work on a full time basis. If coverage under this Policy ends while the Insured is totally disabled, payment under this benefit will continue as if coverage was still in force under the Policy, for that disability only. Exclusions No benefit will be paid for a disability that results from or is caused directly, indirectly, wholly or partly by: · a mental disorder, chronic alcoholism or drug dependency, except while com'incd as a bcd patient in ii medical care facility; intentional ~;elf-injury, suicide or attempted suicide while sane or insane; participation in a riot or other civil disorder a war or act of war Benefit will not be paid for a disability when the Insured: · is not under the regUlar care of a physician; performs any work for pay or profit; or · is receiving benefits under workers' compensation or similar law l:~ntll PLEASE REPLY TO: WRITER'S E- MAIL: LAT SHA DAVIS & YOHE, P.C. -- A'VrORNEYS AT LAW Harrisburg srnontres@ldylaw.com August 10, 2001 Gary A. Therkildsen, Director Special Investigations MAMSI Life and Health Insurance Company P.O. Bo'x 935 Frederick, M D 21705 Kiml~r L Lal:sha Dou~elas C. Y~he** Glenn R. Davis Kevin M. McKenna*** Jonathan M. Grist Barbara O. Graybill Timothy ~ Garvey* David C. Marshall Christine L. Sudlow* Chadwick O. BOgar Duane R Scone Also admitted *NJ **NC, MD "**NJ, DC RE: Juan Rosario, Sr. -- MAMSI Member No.: M582767267'01 Our File No.: 656-00 Dear Mr. Therkildsen: We are in receipt of the Group Life Insurance Policy which you forwarded at our request on June 29, 2001. After reviewing the policy, we are in disagreement with your decision to void Mr. Rosario's coverage as stated in your letter to Charles Beans of November 24, 2000. Specifically, the policy states that "An insured may remain in an eligible class for a limited time if active full-time. work ceases due to disability; leave of absence, layoff, or change to a part-time status." See Policy, p. 10 (emphasis in original). Based on our investigation, it appears Mr. Rosario became totally disabled on June 8, 2000, and in fact applied for and was determined eligible for Social Security benefits. Under the terms of the policy, coverage would continue until "the end of the 12 policy month period that next follows the end of the policy month in which that person last worked as an active full-time employee." See Policy, p. 10. Accordingly, coverage should have continued until June 30, 2001. Mr. Rosario died on September 6, 2001, within three months of the date of the onset of total disability, well before the expiration of the twelve month coverage period mandated by the policy in cases of disability. Based on the foregoing, we are requesting that you tender the policy proceeds to Ms. Rosario, the designated beneficiary, as soon as possible. If we do not receive a response within 10 days of the date of this letter, we will be forced to file the attached Complaint in order to protect our client's interest. If MAMSI does not agree to forward the proceeds of the life insurance policy to the designated beneficiary, we will have no choice but to construe MAMSI's action~ as bad faith, due to the clear and unequivocal language of the policy. As you may be aware, Pennsylvania's G~ary'A~' Therkildsen, ~Director August 10, 2001 Page 2 bad faith statute provides for interest, punitive damages, court costs, and attorneys' fees against the insurer at the discretion of the court if the court finds the insurer acted in bad faith. Thank you for your attention to this matter. Sincerely, ~on~reso~r CERTIFICATE OF SERVIC~ I, Donald M. Lewis, III, Esquire, one of the attorneys for defendant M3~MSI Insurance Resources, LLC, t/d/b/a MA/~SI Life and Health Insurance Company, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Steven M. Montresor, Esquire Latsha Davis & Yohe, P.C. P.O. Box 825 Harrisburg, PA 17108-0825 KEEFER WOOD ALLEN & RAHAL, LLP ~/Donald~. Lewis III Dated: September ~, 2001 LAW OFFICE EDWARD. J. ~Z/EINTRAUB 2650 HORYH THIRI~ STREET HARRISBURG, PENNSYLVANIA 17110 (~17)~2.38-2200 FAX (717) 238-9280 WILLIAM C. PURCELL, Plaintiff VS. CHERYL J. PURCELL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNTY, PENNSYLVANIA NO. 2001-5298 CIVIL ACTION - LAW IN DIVORCE STIPULATION FOR AN AGREED ORDER OF EXCLUSIVE POSSESSION OF THE MARITAL RESIDENCE AND NOW, this 2 4thday of October, 2001, the parties by and through their counsel, stipulate and agree as follows: 1. On or before October 22, 2001, both Plaintiff and Defendant shall contact Mazzitti and Sullivan or Gaudenzia for comprehensive chemical dependency assessments. Both parties shall be assessed by the same agency. Both parties will sign releases authorizing the agency's Certified Addictions Counselor conducting the assessment to talk to the other party and any other third-parties the assessor deems advisable in collecting cooperating evidence relating to corroborating either chemical assessment. Both parties shall further sign releases authorizing the assessing agency to promptly provide written reports to this Court and legal counsel for both parties indicating whether either party is chemically dependent and any recommended treatment plan or plans. Both parties agree to comply promptly and fully with any treatment recommendations. 2. If neither party is determined to have a chemical dependency problem, or if both parties are determined to have chemical dependency problems requiring treatment, they shall continue to enjoy joint possession of the marital residence until further proceedings in this matter and further Order of the Court. 3. If the assessing agency issues a written report indicating that only one of the parties has a problem of chemical dependency requiring treatment, within fourteen (14) days of the issuance of the written report, that party shall vacate the marital residence. 4. If the party to vacate the marital residence is Defendant, Cheryl J. Purcell, prior to her vacating the residence, Plaintiff shall pay to Defendant, as interim equitable distribution, the sum of $10,000, to enable her to pay for her moving expenses, housing and for her interim support. 5. Defendant shall cooperate with Plaintiff in signing all documents necessary for Plaintiff to refinance the mortgage on the parties real estate, enabling him to secure the maximum amount of cash which may be paid out at closing to the parties (believed to be approximately $40,000). At closing, also as interim equitable distribution, each party shall receive 50% of the net cash proceeds available upon refinancing, and deducting from Wife's share the $10,000 previously advanced. 6. Plaintiff shall pay all costs of chemical dependency assessment or treatment not covered by insurance. 7. Both parties shall permit and encourage their children to pursue any recommended counseling or to attend ALATEEN meetings. 10/25/2~01 14:51 7172389200 STERN OR WEINTRAUB PAGE 8. Thc parties agreement is without prejudice to their mutual rights to return to the Court for further relief in this matter and to pursue their rights and remedies in the pending divorce and custody actions. This Stipulation shall be entered as an Order of Court, ~,, Willi~n C. Purcell, Plaintiff ~ Cheryl $. Purcell, Defendant APPROV~ J. Date 8. The parties agreement is without prejudice to their mutual rights to return to the Court for further relief in this matter and to pursue their rights and remedies in the pending divorce and custody actions. This Stipulation shall be entered as an Order of Court. ~ William C. Purcell, Plaintiff Cheryl J. Purcell, Defendant APPROVE~URT: J. Date