Opinion
5:03-CV-249.
August 2, 2004.
ANTHONY E. ZEBROWSKI, Third-Party Plaintiff Pro Se, Liverpool, NY.
RUSSO KEANE TONER, KEVIN G. HORBATIUK, ESQ., Attorneys for Second Third-Party Defendant, New York, NY.
MEMORANDUM-DECISION AND ORDER
This action began as a simple collection matter in Syracuse City Court. Community General Hospital ("Community") sued Anthony E. Zebrowski, defendant/third-party plaintiff in this action, for the unpaid balance on medical services rendered to him. See Affidavit of Kevin G. Horbatiuk (Dec. 30, 2003), exh. A thereto. It has mushroomed into a federal case, however, potentially implicating a federal statute, the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Id. at ¶ 2(b).
Background
A. Factual
Plaintiff Zebrowski "was a covered member of the Employee Welfare Benefit Plan ("the Plan") provided by Lockheed Martin for the benefit of his [sic] qualified employees." Affidavit of Jeffrey A. Harr (Dec. 30, 2003), at ¶ 3. This was a self insured managed health care plan. Lockheed's Plan specifically excluded from coverage "services and supplies which are not medically necessary for the diagnosis or treatment of a disease or injury[.]" Id., exh. A thereto at 19 (emphasis in original).
The second third-party defendant, CIGNA Behavioral Health Inc. ("CIGNA") was not a party to the Plan. It had a separate agreement with Lockheed Martin wherein it was "the claim administrator of the mental health insurance piece" of the Plan ("the CIGNA Agreement"). Id., and exh. B thereto. Under the terms of that Agreement, Lockheed delegated to CIGNA "the sole authority to make determinations on behalf of [Lockheed Martin] with respect to benefit payments under the Plan and to pay such benefits." Id. at ¶ 3(b) (emphasis added).
"On November 17, 1998 Zebrowsk[i] was admitted to Community . . . with a diagnosis of major depression with severe recurrent psychotic features." Id. at ¶ 4 (citations omitted), and exh. C thereto at 0302; see also Affidavit in Opposition to Motion for Summary Judgement by Second Third Party Defendant Anthony E. Zebrowski (Jan. 21, 2004), at ¶ II(3). Because Zebrowski's "thought processing remain[ed] impaired[,]" and, among other things, he "had to be placed in 4-pt [four point] restraints after [he] became violent and attacked staff[,]" CIGNA authorized additional inpatient care through November 24, 1998. Harr Aff., exh. C. thereto at 0303; see also id. at 0279; and Affidavit of Anthony E. Zebrowski (Jan. 20, 2004) at ¶ III(4) (citation omitted).
One day later, on November 25, 1998, Zebrowski's treating physician Dr. Levine was notified that Zebrowski's wife did not want him to return home. That news threw Zebrowski into a "real depression." Harr Aff., exh. C thereto at 0279 and 0303. In Dr. Levine's opinion, at that point Zebrowski could not "be trusted to be on his own[.]" Id. at 0303. Dr. Levine also noted that Zebrowski had "a history of 3 real serious attempts [at suicide]." Id. In light of the foregoing, in the discharge summary Dr. Levine stated that "[i]t was clear to [him] that this puts this man [Zebrowski] in severe risk and [Levine] could not in good conscious discharge [Zebrowski] without adequate housing and a follow-up plan in place." Id. at 0216; see also Zebrowski Aff. at ¶ II(5) (citation omitted).
Despite the foregoing, Mr. Harr, CIGNA's Assistant Vice President, Compliance and Performance and Improvement, avers that "[c]linical documentation at that . . . time did not meet [CIGNA's] level of care guidelines for further inpatient care." Harr. Aff. at ¶ 8 (emphasis added). Nonetheless, CIGNA authorized one more day of inpatient care, through November 26, 1998, "based upon Dr. Levine's concern that Zebrowsky [sic] may harm himself over the Thanksgiving weekend." Id. (citations omitted); see also id., exh. C thereto at 0304, 0279 and 0280.
Once Zebrowski found alternative housing on his own, he was discharged on December 11, 1998. Id., exh. C thereto at 0216. In the interim, however, CIGNA determined that after the one additional inpatient day it authorized, November 26, 1998, it would not provide Zebrowski coverage for any further inpatient stay, i.e. it was not "medically necessary." Id. at 0305. This was based upon the assessment by CIGNA's psychiatrist, Dr. Karauysuf, who found that Zebrowksi did not meet CIGNA's criteria for such a stay. More specifically, Dr. Karauysuf stated that CIGNA could not authorize any more inpatient care in the absence of such symptoms as violent threats and behavior, suicidal threats and behavior and psychosis." Id. Dr. Levine conceded that Zebrowski did not meet any of these criteria. Id. at 0305 and 0280.
In advising Dr. Levine that CIGNA would not provide inpatient coverage beyond November 26, 1998, CIGNA further advised him of its "expedited appeals process[,]" and Levine stated that he "definitely want[ed] to exercise [that] right[.]" Id. at 0305; and Zebrowski Aff. at ¶ II(9) (citations omitted). Levine did not do that, however, because he thought it would be "a waste of his time[.]" Id. at 0305. Levine did agree to send Zebrowski's chart to CIGNA for a "retro" review because he was not releasing Zebrowski yet. Id. at 0305. There was no appeal at that time however because CIGNA never received any of Zebrowski's medical records. Id. at 0280.
On December 4, 1998, while still at Community, Zebrowski contacted CIGNA himself questioning its denial of coverage for his stay there beyond November 26, 1998. Id. at 0280. Zebrowski was advised that at that point the only way for an appeal was if Community sent CIGNA his records, but again, that was never done.Id. Slightly over a year later, on December 14, 1999, CIGNA received a letter from Dr. Levine requesting an appeal. Id. at 0025 and Zebrowski Aff. at ¶ III(4). Evidently CIGNA never responded to that request. Zebrowski Aff. at ¶ III(4).
Several years later, according to Zebrowski he again contacted CIGNA on August 15, 2001, requesting that it pay his hospital bill in its entirety. Zebrowski Aff. at ¶ III(1). A couple of months later, on October 24, 2001, Zebrowski called CIGNA to inform it that he was being sued by Community for payment. Harr Aff., exh. C thereto at 0100. Even though there had been no appeal process earlier because Zebrowski's chart was never sent to CIGNA, it agreed that he "did not get due process[.]" Id. at 0100 and 0321. Thus, even though this matter was "very old[,]" CIGNA told Zebrowski that if Community would send his chart, then CIGNA would undertake a "standard review." Id. Its review would be limited to 14 of the 23 days of Zebrowski's inpatient stay for which CIGNA had declined coverage, i.e. November 27, 1998 — December 11, 1998 Id. 0100-0101.
On appeal, as it had previously, CIGNA stated that Zebrowski met its criteria for inpatient stay through December 3, 1998, but not after that. Id. at 0322; and Zebrowski Aff. at ¶ III (7). CIGNA denied coverage after that date through Zebrowski's actual discharge date of December 11, 1998. Id. During the next level of the appeal process CIGNA adhered to its prior decision, but it provided additional reasoning.
CIGNA justified its denial by noting that on December 4th-7th, and on the 10th, Zebrowski was out on day passes. Id. at 0327. He also had two day passes on December 8th. Id. Zebrowski was out on supervision during that time, driving his car, and looking for housing. Id. Zebrowski acknowledges that he engaged in those activities while out on the day passes. Zebrowski Aff. at ¶ II(8).
Not surprisingly, CIGNA observed that "[i]t was plainly documented in the hospital record that [plaintiff's] stay was extended to allow him to look for housing, per the discharge summary." Harr Aff., exh. C thereto at 0327. CIGNA thus concluded that plaintiff "was not meeting the . . . medical necessity guidelines in effect at the time on 12/4 or any of the subsequent hospital days." Id. Moreover, CIGNA further noted that because plaintiff "was simply awaiting appropriate housing, authorization of inpatient level of care [wa]s specifically excluded." Id. (citation omitted). On the basis of the foregoing, CIGNA found that it was not "medically necessary" for plaintiff to remain in Community's inpatient unit from November 27 — December 11, 1998. Accordingly, CIGNA held steadfast in its initial decision that it had no obligation to provide coverage during that time.
B. Procedural
The City Court collection matter between Community and plaintiff, mentioned earlier was discontinued by stipulation on November 4, 2002. Horbatiuk Aff., exh. E thereto. In early February 2003, also in Syracuse City Court, Zebrowski commenced an action as a third-party plaintiff against Univera Healthcare, as the first third-party defendant, and against CIGNA as the second third-party defendant. Shortly thereafter CIGNA removed the case to this court. Id., exh. B thereto. On July 23, 2003, pursuant to Fed.R.Civ.P. 41(a)(1), the parties agreed to "stipulate to dismiss this action in its entirety and with prejudice as against . . . Univera[.]" Id., exh. F thereto. In light of the foregoing, the only remaining claims are those by Zebrowski against CIGNA.
Evidently Univera was plaintiff's medical insurer under the Plan.
After removal Zebrowski filed an amended third party complaint against CIGNA. Although not a model of clarity, broadly reading this pro se complaint it appears that Zebrowski is alleging that CIGNA breached an employee welfare benefit plan which plaintiff's employer, Lockheed Martin, provided to its employees. In particular, plaintiff alleges that "[t]he actions of [CIGNA] in refusing to cover the subject balance were in clear contravention, violation and breach of the terms and provisions of subject policy coverage." Id., exh. C thereto at ¶ 23 (emphasis added). This language is mirrored in plaintiff's opposing affidavit: "The actions of CIGNA in refusing to cover the subject balance were in clear contravention, violation and breach of the terms and provisions of the subject policy coverage and benefits allowed for [him]." Zebrowski Aff. at ¶ III(9) (emphasis added).
In addition to this claim, which the court construes as one for breach of contract, Zebrowski alleges that CIGNA's "actions were reckless, intentional, tortuous and wrongful and have subjected [him] to several years of totally unnecessary, unwarranted and avoidable, apprehension, inconvenience, significant trouble and suffering." Id. A liberal reading of this claim, especially when taken together with plaintiff's allegations that he "suffered pain and suffering . . . in the amount of $500,000" as a result of CIGNA's denial of medical coverage for part of his inpatient stay at Community, supports the conclusion that he is asserting claims for negligent and intentional infliction of emotional distress. See id. Finally, plaintiff is seeking " overdue payments with interest at the rate of two percent per month per S [sic] 5106 of the New York Insurance Law." Id. (emphasis added).
Cf. Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation marks and citations omitted) ("It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments they suggest.")
CIGNA is moving for summary judgment pursuant to Fed.R.Civ.P. 56 on three grounds. First, CIGNA claims that it "bears no liability to . . . ZEBROWSKY [sic] for the plan benefits which he seeks." CIGNA Memo. at 3. Second, CIGNA maintains that Zebrowski's claims for "emotional distress" are state law based and hence preempted by ERISA. Id. at 4. Third, CIGNA posits that its denial of "benefits was not arbitrary and capricious."Id. at 7.
Zebrowski filed an "affidavit in opposition to motion for summary judgment by second third party defendant," but not a memorandum of law or a Statement of Material Facts as Local Rule 7.1 requires. Given Zebrowski's pro se status the court will overlook his non-compliance with this Local Rule. Cf. United States v. Hernandez, No. 99 CR. 73, 2002 WL 31098505, at *4 (S.D.N.Y. Sept. 18, 2002) (because defendant's motion appeared to have been drafted without "significant assistance from an attorney[,]" court applied the "liberal construction" standard to his motion).
In response to CIGNA's motion, Zebrowski avers that CIGNA breached the "policy" when it refused to cover the balance due to Community as a result of his extended inpatient stay. Zebrowski at ¶ III(9) (emphasis added). As mentioned above, plaintiff's complaint as well as his opposing affidavit can easily be read as asserting breach of contract. Elsewhere in his opposing affidavit Zebrowski seems to contradict that position by arguing that ERISA does not preempt his claims because the issue is not CIGNA's denial of coverage. See id. at ¶ V(1). Rather, according to Zebrowski, "the main issues" are the "pain and suffering" which he allegedly incurred due to his in-patient stay at Community and CIGNA's "abandonment and disregard leaving him to fend for himself at a time of great vulnerability including potential self-destruction." Id. Presumably plaintiff is referring to his inpatient stay beyond that for which CIGNA would provide coverage. In any event, Zebrowski further avers that "[t]he delays and failure to make information known to [him] about the actions taken place were negligent and injurious." Id. Although rather vague, essentially this claim appears to be one for improper processing of his claim, including the appeal.
Zebrowski next alleges that CIGNA acted in bad faith, and continues to do so by withholding court "approved" discovery. Id. at ¶ V(2). Apparently Zebrowski believes that CIGNA was under some court ordered obligation to provide him with the agreement between CIGNA and Lockheed. Zebrowski, argues that this purported bad faith brings his claim outside the scope of ERISA and instead such claim is "governed by the common tort law of the State of New York." Id. Insofar as CIGNA's request for costs, disbursements and attorney's fees, Zebrowski responds that there is no basis for such an award because he has been asserting his rights in good faith. Id.
Zebrowski raises this claim in this motion papers, not in his complaint. Under the liberal construction given pro se pleadings, the court will address this bad faith claim as well however. See Seldon v. Direct Response Technologies, Inc., No. 03 Civ. 5381, 2004 WL 691222, at *1, n. 4 (S.D.N.Y. March 31, 2004) (and cases cited therein) (court considered allegations made in pro se litigant's reply affirmation, even though same not in his complaint).
In its reply, CIGNA points out that Zebrowski is emphasizing that his claims for "pain and suffering and "[t]he delays and failure to make information known to him . . . are the main issues and not the denial of benefits itself[.]" Zebrowski Aff. at ¶ V(1) (emphasis in original). According to Zebrowski, it is CIGNA's alleged "abandonment" of him along with these alleged delays which purportedly "are the proximate cause of the pain and suffering incurred by [him][.]" Id. Based upon that reasoning, Zebrowski contends that his claims are not preempted by ERISA. Id. Zebrowski further reasons that "Congress did not and could not have intended to shield administrators [such as CIGNA] dealing in clear bad faith." Id. at ¶ V(2).
As to plaintiff's bad faith claim, CIGNA responds that such claim cannot survive this summary judgment motion because even assuming arguendo it is not preempted by ERISA, it would fail because plaintiff is unable to satisfy the elements of same under New York law.
As CIGNA reads the complaint, the "only pending claims" are those "for emotional distress as a result of [its] denial and for damages under [§] 5106 of New York State Insurance Law." CIGNA Memo. at 4. The court disagrees. It cannot reconcile plaintiff's unequivocal statement that he is not seeking payment for denial of benefits with the allegations in the complaint and in his opposing affidavit that, among other things, CIGNA breached "the subject policy coverage[.]" Zebrowski Aff. at ¶ III(9). Furthermore, in his complaint plaintiff declares that he is "entitled to all overdue payments[.]" Horbatiuk Aff., exh. C thereto ¶ 26. Although somewhat ambiguous, this language lends further credence to the view that plaintiff is alleging breach of contract. Thus, liberally construing this pro se litigant's papers, the court interprets the same as alleging the following: (1) breach of contract; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; (4) a cause of action based on section 5106 of the New York Insurance Law; and (5) bad faith.
Discussion
I. Summary Judgment Standard
"The standards for summary judgment motion[s] are well established and there is no need to repeat the same herein."Cade Saunders, P.C. v. Chicago Ins. Co., 307 F. Supp.2d 442, 446 (N.D.N.Y. 2004) (citing, inter alia, Fed.R.Civ.P. 56 (c)). It does bear repeating, however, that "[s]ummary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact." Lajeunesse v. Great Atlantic Pacific Tea Company, Inc., 160 F. Supp.2d 324, 329 (D.Conn. 2001) (emphasis in original). "Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. (emphasis in original). As will be seen, because there are no genuine issues of material fact here, this case is ripe for summary judgment.
II. Breach of Contract
Putting aside ERISA preemption for the moment, the court will first examine the merits of plaintiff's breach of contract claim. The "contract" under which plaintiff is seeking damages is the managed care contract between Lockheed Martin, as plaintiff's employer, and Plan beneficiaries, such as plaintiff. Obviously, CIGNA is not a party to that contract.
CIGNA is a party, however, to an "Agreement for Administration Services" with Lockheed Martin ("the CIGNA Agreement"). See Horbatiuk Aff., exh. B thereto. In arguing that it has no liability to plaintiff thereunder, CIGNA relies upon the following provision: "With respect to the outcome of . . . litigation ["for benefits under the Plan resulting from a final denial of benefits by CIGNA[,"] [Lockheed Martin] is liable for the full amount of any Plan benefits paid as a result of the litigation[.]" Id., exh. B thereto at ¶ 8(b)(v). However, there is even more compelling language, which CIGNA overlooked, to support a finding that plaintiff is not entitled to any relief under the CIGNA Agreement. That Agreement unequivocally states that it "is for the benefit of [Lockheed Martin] and CIGNA . . . and not for any other person." Id., exh. B thereto at ¶ 15 (emphasis added). Thus, by its terms plaintiff is not a party to the CIGNA Agreement and indeed is specifically excluded from claiming an entitlement to benefits thereunder.
In addition to the just quoted provisions, there are several factors which provide further support for a finding that plaintiff is not a party to the CIGNA Agreement. That agreement clearly and unambiguously states that it "is by and between Lockheed Martin . . . and CIGNA . . ., for itself and its subsidiaries and affiliated companies providing services to [Lockheed Martin's] plan under this Agreement." Id., exh. B thereto (emphasis). Furthermore, there is nothing before the court even tending to show that in that Agreement either CIGNA or Lockheed intended to bind employees such as plaintiff.
It is axiomatic that one who is not a party to a contract cannot be held liable thereunder. Therefore, to the extent plaintiff is asserting a claim for breach of contract under the CIGNA agreement, such claim is without merit. The contractual relationship, if any, of which plaintiff complains is the one between he and Lockheed. Accordingly, CIGNA is entitled to summary judgment on this contract claim.
Even if this alleged contract claim had merit, CIGNA still would be entitled to summary judgment on same. That is so because to the extent plaintiff is claiming a breach of contract, ERISA preempts it.
ERISA preemption is expansive, to say the least. See Aetna Health Inc. v. Davila, 124 S.Ct. 2488, 2503 (2004) (citation and internal quotation marks omitted) (emphasis added) ("[V]irtually all state law remedies are preempted but very few federal substitutes are provided.") Indeed, "ERISA supersedes 'any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.'" Denniston v. Taylor, 98 Civ. 3579, 2004 WL 226147, at *6 (S.D.N.Y. Feb. 4, 2004) (quoting 29 U.S.C. § 1144(a) (West 1999)) (emphasis added). "The phrase 'relate to' in section 1144(a) is interpreted in its broadest sense, reaching any state laws that have any connection or reference to a particular employee benefit plan." Id. (citing, inter alia, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48 (1987)). "A law 'relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983)).
Here, there is no doubt that the Lockheed Plan is an employee benefit plan governed by ERISA, and likewise that the CIGNA agreement also comes within the ambit of ERISA. See Aetna Health Inc. v. Davila, 124 S.Ct. 2488, 2493 (2004) (plan participant and plan beneficiary sued plan administrators alleging that they sustained injuries when those administrators decided not to provide coverage recommended by treating physicians). Nor can there be any doubt that plaintiff's contract claim arises from the administration of an employee benefit plan in that he is alleging a "breach of the terms and provisions of subject policy coverage." Horabituk Aff., exh. C thereto at ¶ 23. As such, ERISA preempts this state common law breach of contract claim. See Met Life Ins. Co. v. Taylor, 481 U.S. at 62 (ERISA preempted state law breach of contract action by employee seeking to recover benefits under a disability insurance policy); see also Diduck v. Kaszycki Sons Contractors, Inc., 974 F.2d 270, 288 (2d Cir. 1992) (ERISA preempts "[a] state common law action which merely amounts to an alternative theory of recovery for conduct actionable under" that statute.)
III. Emotional Distress
The parties do not distinguish between negligent and intentional emotional distress. However, because plaintiff's papers can be read as alleging both, the court will separately address each of these claims. Although CIGNA claims that ERISA preempts claims for emotional distress, the only case which it cites for this proposition is Pilot Life, 481 U.S. 41. Pilot Life did not so hold. Regardless, as set forth below, CIGNA is entitled to summary judgment dismissing plaintiff's emotional distress claims.
A. Intentional Infliction of Emotional Distress
"Under New York law, a party claiming intentional infliction of emotional distress must prove four elements: 1) conduct that goes beyond 'all possible bounds of decency;' 2) intention to cause distress, or knowledge that defendant's conduct would result in emotional distress; 3) severe emotional distress; and 4) a causal link between the defendant's conduct and plaintiff's distress." Gay v. Carlson, 60 F.3d 83, 89 (2d Cir. 1995) (citing Richard L. v. Armon, 536 N.Y.S.2d 1014, 1015 (2d Dep't 1989)). "New York courts have been very strict in applying these elements." Id. (internal quotation marks and citation omitted) (emphasis added).
Plaintiff's complaint, let alone his opposition papers, is wholly lacking when viewed against this standard. "The court may determine, as a threshold matter, that the conduct in question was not sufficiently outrageous to satisfy the first element of this standard." Fraad-Wolff v. Vassar College, 932 F. Supp. 88, 93 (S.D.N.Y. 1996) (citing, inter alia, Kalika v. Stern, 911 F. Supp. 594, 604-05 (E.D.N.Y. 1995) (granting summary judgment dismissing claim)). The court can easily do that here. "There [are] no allegation[s,] and [the court] ha[s] no basis for concluding, that the behavior alleged here goes beyond all possible bounds of decency." Id. (internal quotation marks omitted). Although plaintiff does allege that CIGNA acted intentionally, he has come forth with nothing on this motion to substantiate that allegation. Thus, even reading the facts in the light most favorable to plaintiff and drawing all reasonable inferences in his favor, no reasonable jury could find that CIGNA's conduct here was "beyond all possible bounds of decency." CIGNA was simply exercising its discretion under the Agreement with Lockheed to deny coverage for matters which it deemed medically unnecessary. Moreover, the record amply supports CIGNA's decision.
Even if there was some possible way which plaintiff could survive CIGNA's summary judgment on the merits, CIGNA would still prevail. "[S]tate law claims of . . . intentional infliction of emotional distress, . . . are clearly preempted by ERISA as a matter of law." Todd v. Aetna Health Plans, 62 F. Supp.2d 909, 915 (E.D.N.Y. 1999) (and cases cited therein), aff'd unpub'd decision, 31 Fed.Appx. 13 (2d Cir. Feb. 21, 2002) Thus, whether on the merits or due to ERISA preemption, CIGNA is entitled to summary judgment dismissing plaintiff's claim for intentional infliction of emotional distress.
2. Negligent Infliction of Emotional Distress
"To sustain . . . a [negligent infliction of emotional distress] claim, plaintiff must allege injuries, physical or mental, incurred by fright negligently induced." Geiger v. E.I. Dupont Nemours Co., Inc., No. 96 CIV. 2757, 1997 WL 83291, at *12 (S.D.N.Y. Feb. 27, 1997) (internal quotation marks and citations omitted). "Thus, although an allegation of physical injury is not a prerequisite, such a cause of action must generally be premised upon conduct that unreasonably endangers plaintiff's physical safety." Id. (internal quotation marks and citations omitted). Obviously the record here is conspicuously void of any such conduct. Consequently, CIGNA is also entitled to summary judgment dismissing this claim for negligent infliction of emotional distress.
IV. New York Insurance Law § 5106
Section 5106 of New York's Insurance Law governs claims for no-fault personal injury benefits. The court therefore agrees with CIGNA that on its face this statute has no applicability to this action. So CIGNA is entitled to summary judgment dismissing this cause of action as well.
V. Bad Faith
There are no bad faith allegations in plaintiff's complaint, as previously mentioned. Broadly reading his opposition papers, however, it is possible to conclude that plaintiff is making such a claim now. There appear to be two aspects to this bad faith claim. First of all, evidently plaintiff asserts that CIGNA acted in bad faith by refusing coverage for his additional in-patient stay. As the court reads it, part of this alleged bad faith also pertains to CIGNA's handling of the appeal process in connection with plaintiff's request for coverage. Second, it seems that plaintiff is alleging "bad faith dealings" arising from CIGNA's purported failure to turn over the CIGNA Agreement during discovery. See Zebrowski Aff. at ¶ III(10).
Irrespective of the nature of plaintiff's bad faith claim, because clearly it is nothing more than a state common law cause of action based, for the most part, on CIGNA's alleged improper processing of his claim, ERISA preempts it too. See Pilot Life, 107 S.Ct. 1549 (state law bad faith claim asserting improper processing of a benefits claim was grounded in general principles of tort and contract law and thus preempted by ERISA). To the extent this claim can be read as asserting bad faith in CIGNA's denial of coverage, ERISA preempts it as well. See also Owens v. Metropolitan Life Ins. Co., 865 F. Supp. 100, 103 (N.D.N.Y. 1994) (ERISA preempted insured's claim that disability benefits were denied in bad faith).
As to CIGNA's alleged failure to provide discovery in this action, the record does not support this allegation at all. Magistrate Judge DiBianco ably handled the discovery phase of this litigation, and there is simply no basis for concluding that CIGNA did not fully comply with its obligations in connection therewith. Moreover, not only has plaintiff failed to meet his burden of "com[ing] forward with specific facts showing . . . a genuine issue for trial[,]" but he has failed to come forth with any facts to support his bad faith claim. See Lajeunesse, 160 F. Supp.2d at 330 (internal quotation marks and citation omitted) (emphasis added). Thus once again CIGNA is entitled to summary judgment — this time on plaintiff's bad faith claim.
VI. Arbitrary and Capricious
The final reason which CIGNA offers as a basis for its summary judgment motion is that its decision to deny coverage for plaintiff's stay at Community after December 3, 1998 can, "by no stretch of the imagination . . . can be considered arbitrary and capricious." CIGNA Memo. at 10. Given that unfettered delegation, CIGNA is correct that the standard of review here is arbitrary and capricious. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (default standard of review under ERISA is de novo, but it is the "more deferential arbitrary and capricious" standard which applies when the plan delegates authority to the plan administrator). Plaintiff does not contend otherwise.
CIGNA also is correct that the scope of review in this case is limited to the administrative record. See Krizek v. CIGNA Group Ins., 345 F.3d 91, 97 (2d Cir. 2003) (absent a finding of "good cause" warranting the introduction of additional evidence, court's review of ERISA plan administrator's decision as to eligibility benefits is confined to the administrative record). Plaintiff does not challenge the scope of review here. In fact, plaintiff did not address CIGNA's arbitrary and capricious argument at all. The court will touch upon it briefly.
Arbitrary and capricious means that a court may reverse only if the decision was "without reason, unsupported by substantial evidence or erroneous as a matter of law." Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir. 1995). It is self-evident from a careful review of the administrative record that CIGNA's decision to decline plaintiff coverage for an additional week of inpatient care at Community does not run afoul of that highly deferential standard. That decision was not "without reason." Nor was CIGNA's decision "unsupported by substantial evidence, or erroneous as a matter of law." It necessarily follows that CIGNA's decision was not arbitrary or capricious.
As should be readily apparent by now, plaintiff, as the non-moving party has not met his burden in any respect of coming forth with specific facts showing that there is a genuine issue of fact for trial. In this regard it should be noted that unsupported allegations, of which there are many here, "'do not create a material issue of fact." Lajeunesse, 160 F. Supp.2d at 330 (quoting Weinstock v. Columbia Univ., 131 F.3d 305, 41 (2d Cir. 2000)). Thus, summary judgment should be granted to CIGNA in all respects. See id. "The question then becomes: is there sufficient evidence to reasonably expect that a jury could return a verdict in favor of the nonmoving party." Id. (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In this case, the answer is emphatically no.
Even though CIGNA has prevailed on this motion, in its discretion, the court declines to grant CIGNA its attorneys' fees, costs and disbursements.
For all of these reasons, the court finds that defendant CIGNA BEHAVIORAL HEALTH INC. is entitled to summary judgment pursuant to Fed.R.Civ.P. 56 dismissing this action in its entirety. The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.