Summary
In Thompson the court held that the safe harbor provisions were not satisfied when the employer "was the administrator of the plan, it calculated premiums due from its partners, it negotiated policy terms, and was free to terminate the policy."
Summary of this case from Cardona v. Life Insurance Company of North AmericaOpinion
Civil Action No. 3: 03-CV-0277-B.
March 29, 2005
MEMORANDUM ORDER
Before are (1) the Amended Motion of the Defendants, Unum Life Insurance Company of America ("UNUM") and Provident Life and Accident Insurance Company ("Provident") (collectively, "Defendants") for Partial Summary Judgment, filed December 29, 2003 and (2) the Motion of the Plaintiff, Sami Thompson ("Thompson") to Strike Defendants' Summary Judgment Evidence, filed May 25, 2004. Having reviewed the pleadings and evidence on file, the Court GRANTS the Defendants' motion for the reasons that follow.
I. Factual and Procedural Background
The facts are derived from the parties' pleadings and on the evidence contained in the summary judgment record. Unless characterized as a contention by one of the parties, these facts are undisputed.
Thompson filed this lawsuit against the Defendants on December 9, 2002 in the 192nd Judicial District of Dallas County, Texas. Thompson was employed by the law firm Hughes and Luce ("HL") as a legal secretary for seventeen years. (Petition at 2-3; MSJ Response at 1). As of December 1, 1979, while an HL employee, Thompson became insured under a group long-term disability insurance policy offered by UNUM (the "policy"). ( Id.; MSJ at 2). Some time in 1992, Thompson allegedly developed "bilateral carpal tunnel syndrome," and had surgery on her left hand to treat the condition on July 23, 1992. (Petition at 3; MSJ at 2). She underwent surgery to treat the same condition in her right hand later that year, on December 29, 1992. ( Id.). After resuming her work duties, which included "operation of computer equipment, word processing, transcription, keyboard activities and scheduling meetings and travel," her condition allegedly deteriorated, causing her to need a second surgery in November 1993 for "carpel tunnel release." ( Id.). Following her surgery, Thompson initiated physical therapy, which allegedly "increas[ed] the pain." ( Id.). Thompson avers that her condition further deteriorated and that she was ultimately diagnosed with Reflex Sympathetic dystrophy ("RSD") in March 1994, for which she "underwent median nerve blocks and right stellate ganglion nerve blocks" which were "eventually ineffective."
On March 8, 1994, Thompson filed for long term disability benefits with UNUM, claiming that she was unable to work and "disabled by RSD, carpel tunnel syndrome, wrist pain and numbness, (Petition at 3-4) and her application was approved by UNUM later that month on March 25, 2004.
Almost two months later, on May 18, 1994, UNUM allegedly "requested that Ms. Thompson return to work at a new job which would ultimately result in UNUM avoiding any further liability for future [long term disability] benefits." ( Id. at 4). Thompson claims that she then consulted her physicians, and made the decision to decline to return to work in the positions the insurer suggested because doing so "would only exacerbate her conditions." ( Id.). Dr. Harry Orenstein then performed an "IME" on Thompson on June 29, 2004 and determined that she "was totally disabled and needed further surgical intervention," which she later underwent in October 1994. ( Id.). Thompson alleges that neither the surgery nor the subsequent treatment by her physician, Dr. Reed was successful, and that "in November 1995 she was given a 48% whole body impairment rating," which worsened in 1996 when "she was diagnosed with fibromyalgia." ( Id.).
According to Thompson, UNUM sent an offer of settlement to her on November 7, 1996, offering a one time lump sum payment of $39,357.72, a sum representing "less than a year of benefits." ( Id.). In August of 1997, Thompson claims that UNUM "issued a directive to its adjusters to commence surveillance on Ms. Thompson as well as to commence an exhaustive records search," and additionally hired a private investigator to "verify [her] residence, all phone lines and registered vehicles `as well as any liens or lawsuits pending, corporate affiliations or locate any material assets,'" and hired a company to follow her and videotape her. ( Id.). On February 24, 1998, Thompson alleges that the insurer offered another settlement, for a lump sum of $43,456,86, which Thompson rejected. ( Id.). Thompson maintains that her condition has only worsened, and that she remains "totally disabled," and that, according to her physician, "her condition was incurable." ( Id.).
When Thompson "began a multidisciplinary chronic pain management program" in 2000, she alleges that UNUM hired a company named GENEX to conduct a separate investigation of her, but that report allegedly only supported her claim. ( Id.). When Provident and UNUM requested that Thompson then undergo an "FCE" her "treating physicians advised her against it" unless certain measures were taken and the doctors "informed UNUM that completion of the FCE would cause her to physically deteriorate." ( Id.). When UNUM allegedly refused to comply with the conditions suggested by Thompson's physicians, one of the doctors sent a letter to the company clarifying that her disability was solely caused by chronic pain, not depression, presumably another condition Thompson was suffering from. ( Id.).
On February 23, 2001, Thompson alleges that the Social Security Administration awarded her disability benefits from November 16, 1993 through the present date and, according to Thompson, ruled that she was "totally disabled" as a result of "severe impairment of RSD, CTS, CPS and fibromyalgia." ( Id.).
Thompson appealed the denial of her benefits under the UNUM policy, and her appeal was denied on March 8, 2002. ( Id.) Thompson filed an additional appeal on July 12, 2002, and when Thompson allegedly received no response, she filed this lawsuit on December 9, 2002 in Texas State Court, seeking compensatory damages including "loss of past and future disability benefits, unpaid past and future disability benefits, loss of use of funds, collection harassment, loss of creditworthiness, severe physical, emotional and mental pain, suffering and anguish, court costs, and the attorneys' fees and expenses incurred in the prosecution of this matter and through the appellate process." ( Id. at 13). Specifically, Thompson alleges of violations of the Texas Insurance Code and the Deceptive Trade Practices Act ("DTPA"), negligent misrepresentation, breach of the duty of good faith and fair dealing, negligence and gross negligence. (Petition). To date, Thompson has never asserted any ERISA claims. (Petition).
UNUM removed the case to federal court on February 7, 2003, pleading ERISA preemption as an affirmative defense. (Notice of Removal). In her Response to the Defendants' motion for summary judgment, Thompson argues that an ERISA plan does not exist, or that, alternatively there is a material issue of fact regarding the existence of an ERISA plan. (MSJ Response at 2). Presently before the Court is the Defendants' motion for partial summary judgment and Thompson's motion to strike the Defendants' summary judgment evidence.
ERISA is the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
The Defendants' motion is one for partial summary judgment because they have not sought summary judgment on their counterclaims against Thompson. They have, however, moved for summary judgment on the entirety of Thompson's claims against them.
II. ANALYSIS
A. Legal Standards.1. Summary Judgment Standard.
Summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Only disputes about material facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-movant bears the burden of proof at trial, the summary judgment movant need not support its motion with evidence negating the non-movant's case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.
Once the movant meets its burden, the non-movant must show that summary judgement is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). "This burden is not satisfied with `some metaphysical doubt as to material facts,' . . . by `conclusory allegations,' . . . by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (emphasis in original) (quoting FED. R. CIV. P. 56(e)). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000); Anderson, 477 U.S. at 248.
2. ERISA Preemption.
a. Complete Preemption and Conflict Preemption.
The Fifth Circuit has recognized two types of preemption under ERISA: complete preemption and conflict preemption. McClelland v. Gronwaldt, 155 F.3d 507 (5th Cir. 1998). Complete preemption serves as an exception to the well-pleaded complaint rule in that ERISA may occupy a particular area such that "any civil complaint raising this select group of claims is necessarily federal in character." Giles v. Nylcare Health Plans, Inc., 172 F.3d 332, 336-37 (5th Cir. 1999) (quoting Metro Life, 481 U.S. at 64-65) (internal quotations omitted). ERISA's civil enforcement provisions, 29 U.S.C. § 1132(a), completely preempt any state cause of action seeking the same relief, thus a claim falling within § 1132(a), regardless of how artfully pled as a state claim, will be treated as a federal claim. Id. At 337 n. 7. (citations omitted). Because such a claim raises a federal question, it will provide a basis for the Court's exercise of removal jurisdiction from state court. Id.
On the other hand, conflict preemption, also known as ordinary preemption, arises under U.S.C. 1144(a) and applies to state law claims which fall outside the scope of ERISA's civil enforcement provisions. Copling v. The Container Store, 174 F.3d 594, 595 (5th Cir. 1999). Such claims are governed by the well-pleaded complaint rule and, therefore, conflict preemption, in and of itself, fails to establish federal question jurisdiction over those claims. Id.
The Fifth Circuit has summarized the interplay between the issues of preemption and jurisdiction as follows:
[W]hen a complaint raises state causes of action that are completely preempted, the district court may exercise removal jurisdiction; but when a complaint contains only state causes of action that the defendant argues are merely conflict preempted, the court must remand for want of subject matter jurisdiction. When a complaint raises both completely preempted claims and arguably conflict preempted claims, the district court may exercise removal jurisdiction over the completely preempted claims and supplemental jurisdiction [under 28 U.S.C. § 1367] over the remaining claims.Id.
To determine whether the claim is subject to ordinary preemption under ERISA, the Fifth Circuit uses a two-pronged approach. See McClelland, 155 F.3d at 517. The first step is to determine whether the claim is subject to ordinary preemption under 29 U.S.C. § 1144(a). Id. "Ordinary preemption is a necessary — but obviously not a sufficient — precondition to complete preemption in the context of ERISA." Id. Therefore, a claim that is not subject to ordinary preemption cannot be completely preempted. The second step, then, assuming the claim is subject to ordinary preemption, is to determine whether it is completely preempted; i.e. whether the claim seeks the same relief as provided for in ERISA's civil enforcement provisions in § 1132(a). See id.; see also Giles, 172 F.3d at 337.
b. Ordinary Preemption Under 29 U.S.C. § 1144(a).
As noted, the instant motion raises the issue of ERISA preemption. 29 U.S.C. § 1144(a) states that ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . ." ERISA § 514(a), 29 U.S.C. § 1144(a). The Supreme Court defines the phrase "relate to" very broadly. It is to be "`given its broad common-sense meaning, such that a state law `relates to' a benefit plan, `in the normal sense of the phrase, if it has a connection with or reference to such a plan."' Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985) (citations omitted). If a state law relates to a benefit plan, then ERISA preempts it. Hogan v. Kraft Foods, 969 F.2d 142, 144 (5th Cir. 1992).
ERISA preemption is also governed by 29 U.S.C. §§ 1144(b)(2)(A) and (b)(2)(B), but these provisions are inapplicable to this case.
Two characteristics unify those state law causes of action which have been preempted by ERISA: (1) these claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) they directly affect the association among the traditional ERISA participants — the employer, the plan and its fiduciaries, and the participants and beneficiaries. Mem'l Hosp. Sys. v. Northbrook Life Ins., 904 F.2d 236, 245 (5th Cir. 1990); Smith v. Texas Children's Hosp., 84 F.3d 152, 155 (5th Cir.), reh'g denied, 95 F.3d 56 (5th Cir. 1996).
B. As a Matter of Law, the Policy Constituted an ERISA Plan.
The Defendants contend that Thompson's state law claims against them are preempted by ERISA. See generally MSJ. As discussed previously, all of Thompson's claims against the Defendants arise under state law. See generally (Petition). Thompson argues, however, that an ERISA plan does not exist, or that, in alternatively there is a material issue of fact regarding the existence of an ERISA plan. (MSJ Response at 2).
First, the Court must decide whether HL's "insurance policy constituted an ERISA plan." McNeil v. Time Ins. Co., 205 F.3d 179, 189 (5th Cir. 2000). As explained by the Fifth Circuit in McNeil, "an `employee welfare benefit plan' is defined, in part, as `any plan, fund, or program . . . established or maintained by an employer . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise'" ( Id.) . . . "benefits in the event of sickness, accident [or] disability." 29 U.S.C. § 1002(1).
To determine whether a particular plan qualifies as an ERISA plan, we ask whether the plan (1) exists; (2) falls within the safe harbor exclusion established by the Department of Labor; and (3) meets the ERISA requirement of establishment or maintenance by an employer for the purpose of benefitting the plan participants.McNeil, 205 F.3d at 189 (citing Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir. 1993).
1. An ERISA Plan Exists.
The Defendants assert that, in this case, all of the requisite criteria are met. (MSJ at 3). The Court agrees. There is no requirement of formal documentation designating it as a "plan." Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 241 (5th Cir. Tex. 1990). In this case, "a reasonable person could ascertain the intended benefits, sources of financing, and procedures for receiving benefits," which is the standard for analyzing whether a plan exists. McNeil, 205 F.3d at 189. The Fifth Circuit has routinely found employers' group insurance policies to constitute an employee benefit plan as provided for under ERISA. See, e.g. Id.; Kidder v. HB Marine, Inc., 932 F.2d 347, 353 (5th Cir. 1991); Memorial Hosp. Sys., 904 F.2d at 241. In Gonzales v. Prudential Ins. Co. of Am., 901 F.2d 446, 452 (5th Cir. 1990), the Court specifically rejected an insured's argument that an employer's disability plan funded through an insurance policy was not an "employee welfare benefit plan" under ERISA.
In this case, it is undisputed that HL purchased the policy in question from UNUM and that Thompson seeks to recover benefits under that policy. Moreover, HL distributed policy certificate describes HL as the "Plan Administrator" and specifically sets forth the ERISA rights of the policy participants. (MSJ App. at 63-65). Additionally, HL gave the federal government annual notification via FORM 5500's that it maintained a long-term disability welfare benefit plan under ERISA. ( Id. at 111-12, 231, 241, 251, 263, 273, 283, 294). While Thompson contends that "HL does not contend it created an ERISA plan by applying for UNUM insurance," (MSJ Response at 6; MSJ Response, Exh. C at 64-65; 68-69; 99-100), the deposition testimony Thompson cites in fact reveals no more than that the two HL representatives deposed "did not know" whether HL intended to create an employee welfare benefit plan in purchasing the group policy from UNUM. ( Id.). Thus, for the reasons discussed, the Court finds that the plan in question constitutes and ERISA plan.
2. The Group Policy is Not Within the Safe Harbor Provision.
Notably, Thompson is "not seeking protection under the Safe Harbor provision," but out of an abundance of caution, the Court will address those requirements as well. For Thompson to establish that the group policy is not part of an employee welfare benefit plan, she must demonstrate that (1) HL did not pay any of the policy premiums, (2) that HL employee participation was voluntary, (3) that HL merely collected and remitted the premiums to UNUM, with no other administrative role, and (4) that HL did not receive any profit from the plan. McDonald, 60 F.3d at 236; 29 C.F.R. §§ 2510.3-1(j)(1)-(4) (1992). Thompson must prove each of these prongs, and an examination of the summary judgment evidence reveals that she cannot and that HL controlled the maintenance of the plan. First, HL paid all of the premiums for Thompson and all non-partner employees. (MSJ App. at 17, 53, 63). Second, Thompson's participation in the plan was automatic rather than voluntary. ( Id. at 78, 130, 132). Third, HL was the administrator of the plan, it calculated premiums due from its partners, it negotiated the policy terms, and was free to terminate the policy. ( Id. At 2, 5, 30, 160). Thus, Thompson has failed to satisfy this prong of the safe harbor provision.
(MSJ Response at 14 n. 11).
3. HL Intended the Plan to Benefit its Employees.
Finally, it is evident from HL's role in the plan selection, administration and maintenance that HL established and maintained the plan to benefit its employees. Thompson has not satisfied any of the required elements of the safe harbor provision, and it thus does not apply. As a matter of law, the group policy in question constitutes an ERISA Plan. Next, the Court will address whether ERISA preempts Thompson's state law claims.
C. Thompson's State Law Claims are Preempted by ERISA.
As an ERISA participant, Thompson has the right to: (1) seek recovery of benefits under the plan, (2) enforce her rights as provided by the Plan, or (3) obtain clarification of any possible future benefits to which she may be entitled under the Plan. Id. 29 U.S.C. § 1132(B). The law is clear, however, that "Section 514(a) of ERISA, 29 U.S.C. § 1144(a), expressly `supersedes any and all State laws insofar as they may now or hereafter relate to any employee benefit plan' covered by ERISA." Rozzell v. Security Serv., Inc., 38 F.3d 819, 821 (5th Cir. 1994) (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990) (citations omitted).
More specifically, Courts have held that ERISA completely preempts the specific state law claims Thompson alleges. See, e.g. McNeil, 205 F.3d at 191 (finding ERISA preemption of claims for breach of contract, negligent misrepresentation, waiver, estoppel, ratification, violations of the Texas Insurance Code, and breach of the duty of good faith and fair dealing); Christenson v. Mutual Life Ins. Co. of N.Y., 950 F. Supp. 179, 181-82 (N.D. Tex. 1996) (finding ERISA preemption of claims for breach of contract, violations of article 21.21 of the Texas Insurance Code and the DTPA, breach of the duty of good faith and fair dealing, promissory estoppel, negligent misrepresentation, negligence and gross negligence). In Metropolitan Life Ins. Co. v. Taylor, and 481 U.S. 58, 62-64 (1987), the United States Supreme Court held that ERISA completely preempted certain state law claims, and in that case found that ERISA preempted an employee's common law tort and contract claims when the employee sought benefits under the employer's disability policy. The Fifth Circuit in Anderson v. Elec. Data Sys. Corp., 11 F.3d 1311, 1315 (5th Cir. 1994) applied the reasoning in Taylor to find that a former employee's claims for demotion and wrongful termination were similarly preempted., even though ERISA was only asserted as a defense. Thompson's common law claims for breach of contract and torts of negligent misrepresentation, negligence and gross negligence to recover benefits from her employer's ERISA plan are preempted by ERISA section " 29 U.S.C. § 1132(a)(1)(B) which provides an exclusive federal cause of action for the resolution of such claims," in effect "`recharacterizing'" the claims as federal claims. Degan v. Ford Motor Co., 869 F.2d 889, 893 (5th Cir. 1989) (citations omitted) (specifically referring to breach of contract and negligent misrepresentation claims).
Thompson's claims against UNUM for breach of the duty of good faith and fair dealing and for alleged DTPA violations are likewise preempted. In Ramirez v. Inter-Continental Hotels, 890 F.2d 760, the plaintiff brought suit against his former employer and the employer's insurance carrier, alleging only state law claims for breach of contract, breach of fiduciary duty, negligence, and violations of the DTPA. The Fifth Circuit held that the plaintiff's "efforts to collect his medical benefits" were related to his employer's plan, and thus preempted by ERISA. Id. at 762-63. Furthermore, although ERISA provides a savings clause for statutes which "regulate insurance," the Fifth Circuit in Ramirez joined three other circuits in "holding that ERISA preempts state statutes that provide a private right of action for the improper handling of insurance claims." Id. At 764; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50-57 (1987). Thus, ERISA preempts Thompson's claims for breach of the duty of good faith and fair dealing and for alleged DTPA violations. Id.; see also Pilot Life, 487 U.S. 41 at 56-57; Hansen v. Continental Ins. Co., 940 F.2d 971, 979 (5th Cir. 1991) (holding that claims for misrepresentation, fraud and DTPA violations brought pursuant to section 21.21 of the Texas Insurance Code were barred by ERISA even if the result left the plaintiff with no adequate remedy for fraud under ERISA); Tatum v. Special Ins. Serv., 2003 WL 22922302 (5th Cir., Dec. 10, 2003) (finding that employee insurance policy purchased by employer was a plan governed by ERISA and thus outside the scope of ERISA's safe harbor provision); Erwin v. Tex. Health Choice, L.C., 187 F. Supp.2d 661, 665 (N.D. Tex. 2002) (Lynn, J.) (holding that "Fifth Circuit precedent [had] foreclosed [the] Plaintiff's statutory and common law bad faith claims."). Thus, all of Thompson's state law claims are preempted by ERISA, and the Defendants' motion for summary judgment on those claims is GRANTED.
C. The Court Will Grant Thompson Leave to Amend.
As the Fifth Circuit has held on more than one occasion, "ERISA's preemptive and civil enforcement provisions operate to `recharacterize' such claims into actions arising under federal law." Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 269 (5th Cir. 2004). The Court's decision to grant the Defendants' motion for partial summary judgment, therefore, operates as a decision on the merits as it relates to Thompson's state law claims. Ramirez v. Inter-Continental Hotels, 890 F.2d 760, 763 (5th Cir. 1989). Federal Rule of Civil Procedure 15 states that leave to amend after a responsive pleading is filed should be "freely granted when justice so requires." Id. The Court will therefore grant Thompson leave to amend her complaint to state an ERISA claim if she so chooses. Id.; see also Ellis, 394 F.3d at 269 (finding no abuse of discretion where the district court granted the plaintiff leave to amend her complaint after finding that ERISA preempted her breach of contract claim); Francis v. United Parcel Serv. of Am., Inc., 288 F. Supp.2d 882, 894-95 (S.D. Ohio 2003) (granting leave to amend to employee whose state common law breach of contract claims were removed to federal court where they were found preempted by ERISA).
Because the Court has found that ERISA governs the group policy in question, the Court will decide, as a matter of law, whether UNUM abused its discretion, as "ERISA does not entitle [Thompson] to a jury trial." Calamia v. Spivey, 632 F.2d 1235, 37 (5th Cir. 1980). The Court will instead establish a briefing schedule regarding the issue of whether UNUM abused its discretion in ultimately denying Thompson's claim for long term disability benefits. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213-15 (5th Cir. 1999). Because the Court will be evaluating whether UNUM abused its discretion in making its factual determination regarding Thompson's claim, the Court "may consider only the evidence available to the plan administrator." Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 827 (5th Cir. Tex. 1996). However, this rule rests on the assumption that "both parties were given an opportunity to present facts to the administrator," an issue which has not yet been put before the Court. Meditrust, 168 F.3d at 215. The Court will consider this matter and will set a briefing schedule regarding UNUM's factual determinations after receipt of an Amended Complaint repleading Thompson's claims as claims for ERISA benefits.
D. Motion to Strike.
Thompson has objected to and moved to strike certain evidence relied on by the Defendants in support of their motion for summary judgment. Specifically, Thompson objects to (1) the Declaration of Steven Leask and numerous associated exhibits and also to the admission of an of the form 5500's on the grounds that the affidavit and exhibits contain statements that are hearsay, are made without personal knowledge and lack foundation, as well as the fact that Leask was not identified in the Defendants' initial disclosures.
The Court finds that Thompson's objections are unfounded. For example, the Defendants were not required to designate Leask prior to filing their summary judgment motion. Connecticut Gen. Life Ins. Co. v. Thomas, 910 F.Supp. 297, 202 (S.D. Tex. 1995). Moreover, the Defendants amended their initial disclosures on June 16, 2003, "designating Leask as having knowledge of th matters set forth in the Declaration." (M/Strike Response at 3, Exh. A.). Also, the Affidavit makes clear that as an employee of Unum Life's parent company, and as a custodian of records, Leask had personal knowledge to authenticate the eleven documents from UNUM's file regarding the group disability policy at issue. See, e.g. United States v. Box, 50 F.3d 345, 356 (5th Cir.). Finally, while Thompson characterizes many of the exhibits as hearsay, many are simply used by the Defendants to show [HL]'s involvement in obtaining the coverage and keeping it in force, or, in the case of the Form 5500's to show that, "from 1988 through 1993, [HL] signed these forms under penalty of perjury and filed them with the Federal Government based on its belief that the Group Policy was part of an ERISA plan." (M/Strike Response at 3). Additionally, as business records, the Form 5500's qualify as an exception to the hearsay rule. Accordingly the Court OVERRULES Thompson's objections and DENIES her motion to strike the Leask affidavit and related exhibits.
III. Conclusion
For the reasons set forth in this order, it is ORDERED that the Defendants' Motion for Partial Summary Judgment is hereby GRANTED. Additionally, the Court GRANTS Thompson Leave to Amend her Complaint if she so chooses. Any Amended Complaint should be filed within 20 days of this Order.