Opinion
Case No. 1:97cccv406-D-A.
Filed Date: January 26, 1999.
OPINION
Presently before the court are cross motions for summary judgment. Upon due consideration of the aforesaid motions, the court finds that the defendants' motion should be denied and that the plaintiff's motion should be denied in part and granted in part.
I. Factual Background
The plaintiff, Donna Walley, is employed at Alexander's Home Health, a subsidiary of Interhealth, Inc., which carries a Benefit Plan sponsored by Interhealth, Inc. On March 1, 1996, the plaintiff submitted her application for coverage under the Benefit Plan and a Statement of Lost Group Major Coverage regarding her health insurance policy with State Farm. The plaintiff was subsequently informed that her participation in the Benefit Plan was effective April 1, 1996. On April 18, 1996, the plaintiff was treated for medical conditions diagnosed as ischemic transient attacks and carotid artery disease. The plaintiff received subsequent treatments during May and June of 1996. Interhealth denied benefits to the plaintiff on the basis that her medical conditions were excluded under the Benefit Plan as "pre-existing medical conditions." The defendants asserted that the plaintiff's medical treatment in May 1995 was for the same condition and was therefore a pre-existing condition on April 1, 1996, the effective date of coverage. In addition, Interhealth rescinded the plaintiff's coverage asserting that the plaintiff's completion of the Statement of Lost Group Major Coverage was a submission of erroneous information. The plaintiff brought this cause of action against the defendants for the denial and rescission of coverage.
II. Standard of Review for Motions for Summary Judgment
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 91 L. Ed. 2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 91 L. Ed. 2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 552 (1986).
The defendants' motion for summary judgment requests the following relief:
(1) denial of the plaintiff's request for a declaratory judgment that the pre-existing condition definition set forth in the Benefit Plan is void and unenforceable;
denial of the plaintiff's request for a judgment in the amount of $27,500 representing the amount of claims which were denied on the basis of pre-existing condition;
denial of the plaintiff's request for an award of attorney's fees and costs;
denial of the plaintiff's request for civil penalty;
denial of the plaintiff's request for declaratory or injunctive relief premised upon the argument that she did not suffer from a pre-existing condition; and
denial of the plaintiff's request for declaratory or injunctive relief for future or additional treatment for failure to exhaust her administrative remedies.
See Memorandum in Support of Defendants' Motion for Summary Judgment, pp. 22-23. The plaintiff's motion for summary judgment requests summary judgment on the following issues:
the standard of judicial review of the Plan Administrator's decision in this case denying benefits should be less deferential than abuse of discretion, permitting evidence to be considered outside of the material reviewed by the Plan Administrator; and
the legal interpretation by the Plan Administrator of the terms of the Benefit Plan related to denial of medical benefits in this case for the alleged pre-existing condition was . . . contrary [to] law and should be reversed.
See Plaintiff's Motion for Summary Judgment, p. 2.
III. Discussion
A. What Law Applies
The plaintiff's coverage under the Benefit Plan is governed by the Employment Retirement Income Security Program. The plaintiff asserts that coverage is also governed by Miss. Code Ann. § 83-9-49. However, the court is of the opinion that the defendants' Benefit Plan is preempted by ERISA, 29 U.S.C. § 1144, and does not come within the savings clause of ERISA, 29 U.S.C. § 1144(b)(2)(A).
B. Standard of Review
In Firestone Tire Rubber Co. v. Bruch, the United States Supreme Court held that ERISA denial decisions are subject to de novo judicial review "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." 489 U.S. 101, 115, 109 S. Ct. 948, 156, 103 L. Ed. 2d 80 (1989). If the plan does vest such discretionary authority in its administrator, then benefit decisions should be reviewed under the more deferential arbitrary and capricious standard. Firestone, 489 U.S. at 115. The United States Court of Appeals for the Fifth Circuit uses "abuse of discretion" synonymously with "arbitrary and capricious" to describe the deferential alternative to de novo review. Haubold v. Intermedics, Inc., 11 F.3d 1333, 1337 (5th Cir. 1994).
In this case, the Benefit Plan states that "[t]he final authority and responsibility for administration of the group employee benefit plan rests with Interhealth, Inc. Interhealth, Inc., is the `named fiduciary' and `Plan Administrator' for the purposes of ERISA." See Defendants' Motion for Summary Judgment, Exhibit A-1, Interhealth, Inc., Group Employee Benefit Plan, p. 29. The court notes that this designation of power in the Benefit Plan does not include the word "discretion." However, "the Supreme Court surely did not suggest [in Firestone] that `discretionary authority' hinges on incantation of the word `discretion' or any other `magic word.' Rather, the Supreme Court directed lower courts to focus on the breadth of the administrators' power — their `authority to determine eligibility for benefits or to construe the terms of the plan'. . ." Chevron Chemical Co. v. Oil, Chemical, Atomic Workers Local Union 4-447, 47 F.3d 139, 142 (5 th Cir. 1995) (citations omitted). By granting the Plan Administrator "[t]he final authority and responsibility for administration of the group employee benefit plan," this court finds that the power of the Plan Administrator includes the discretionary authority required to trigger the "abuse of discretion" standard of review.
The plaintiff asserts that a conflict of interest existed since the Plan Administrator, Interhealth is also the funding principal of the Benefit Plan, and that a less deferential standard of review or a de novo review should be employed by the court due to this alleged conflict of interest. See Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment, unnumbered p. 6. At this juncture, the court will not address whether a conflict of interest existed. However, a conflict of interest does not affect the standard of review, but rather is a factor to be considered in evaluating whether the Plan Administrator abused its discretion. See, e.g., Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 599 (5 th Cir. 1994) ("[A] conflict of interest does not change the standard of review. . . Instead, the district court should weigh any potential conflict of interest in its determination of whether the Plan Administrator abused its discretion.") (citations omitted); Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1014 (5 th Cir. 1992) ("[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.") (citations omitted).
For the foregoing reasons, this court shall apply the "abuse of discretion" standard of review and, consequently, deny the first relief request of plaintiff's motion for summary judgment.
C. The Plan Administrator's Interpretation of the Benefit Plan
Where the abuse of discretion standard applies, the court must implement a two step review of the Plan Administrator's decision. First, the court must determine whether the Plan Administrator's interpretation was legally correct. Kennedy v. Electricians Pension Plan IBEW No. 995, 954 F.2d 1116, 1124 (5 th Cir. 1992). If the court determines that the interpretation was not legally correct, it must consider whether that interpretation constituted an abuse of discretion. Wildbur v. ARCO Chemical Co., 974 F.2d 631, 638 (5 th Cir. 1992). Although the proper standard of review is whether there was an abuse of discretion, the court will consider all evidence that is relevant even if the evidence was not part of the administrative record. Wildbur, 974 F.2d at 642.
1. Whether the Interpretation Was Legally Correct
The parties dispute the meaning of "pre-existing condition." The plaintiff asserts that the Plan Administrator's interpretation of "pre-existing condition" was contrary to law. The defendants argue that the Plan Administrator's interpretation was legally correct; nevertheless, if it was not legally correct, it still was not an abuse of discretion. In determining the legally correct interpretation of the benefit plan, the court should consider (1) whether the interpretation is consistent with a fair reading of the plan, (2) whether there has been uniformity in construction of the plan, and (3) whether the interpretation results in any unanticipated costs to the benefit plan. Kennedy, 954 F.2d at 1121.
To determine whether the interpretation was consistent with a fair reading of the plan, the court must first review the plan's definition of a pre-existing condition. The Benefit Plan defines Pre-Existing Condition as the following:
Pre-Existing Condition: Is any injury, illness, pregnancy, or medical condition which existed on member's effective date; or
Any sickness or injury for which, in the three months before the effective date, a covered person: (a) sees a doctor; (b) takes prescribed drugs; or (c) receives other medical care or treatment.
Charges will be excluded for pre-existing conditions until three consecutive months have passed during which the covered person: (a) is covered, and (b) receives no medical care or treatment. If treatment is continual, we exclude these conditions until the covered person has been covered for twelve consecutive months.
Pre-existing condition exclusions do not apply to birth defects of a dependent child who was covered at birth.
See Defendants' Motion for Summary Judgment, Exhibit A-1, Interhealth, Inc. Group Employee Benefit Plan, pp. 8-9.
The plaintiff's alleged "pre-existing medical condition" at issue is carotid artery disease and transient ischemic attacks. The Plan Administrator stated that its affirmation of the benefit service manager's decision to deny the plaintiff benefits was based on a physician's opinion that the plaintiff's medical condition existed on the effective date of coverage. See Defendants' Motion for Summary Judgment, Exhibit A-9. The physician, Stanley W. Chapman, M.D., was employed by Hughes Associates, a health care review and consultant company. Dr. Chapman's opinion based on his review of the plaintiff's medical files stated that "Ms. Walley was symptomatic with lower extremity claudications during 1994. However, it was not until May 22, 1995 that reference is made to peripheral arterial insufficiency involving the lower extremities. Symptoms of transient ischemic attacks and disease of the left internal carotid artery was not noted until April 17, 1996." See Defendants' Motion for Summary Judgment, Exhibit A-5. A subsequent report by Dr. Chapman stated that "[a]lthough [sic] Mrs. Walley's hypercholesterolemia most likely pre-existed her diagnosis of the left internal carotid artery stenosis, the medical records submitted indicate that she was totally asymptomatic with respect to her carotid artery disease." Defendants' Motion for Summary Judgment, Exhibit A-7. It appears that in Dr. Chapman's opinion there were no pre-existing medical conditions of carotid artery disease and transient ischemic attacks. Moreover, the doctor opined that there were not even symptoms of these conditions in the plaintiff's medical records. Assuming that the Plan Administrator's denial of benefits was based on Dr. Chapman's opinion as stated in the December 19, 1996, letter to the plaintiff, this court finds that the Plan Administrator's interpretation was not consistent with a fair reading of the plan.
The "effective date" to which the court refers is April 1, 1996. However, the defendants assert in their final brief that benefits were also denied due to the plaintiff's ineligibility for the accelerated coverage provision of the plan thereby making her without coverage at the time of the "effective date." The court addresses this issue infra.
The uniformity in the construction of the plan is difficult to judge because the record does not include any claim other than the plaintiff's claim. However, the claims review procedure was properly followed.
The third factor in determining whether the Plan Administrator's interpretation of the plan was legally correct is whether the interpretation results in any unanticipated costs to the plan. The court must determine whether either of the interpretations would give rise to substantial unanticipated costs to the Plan. Batchelor v. International Brotherhood of Electrical Workers Local 861 Pension Retirement Fund, 877 F.2d 441, 444 (5 th Cir. 1989). If a given interpretation would result in such costs, that interpretation is less likely to be legally correct. Batchelor, 877 F.2d at 444. The defendants argue that "forcing the Benefit Plan to pay benefits for conditions that pre-existed enrollment, but were allegedly unknown to the participant (whether on account of misdiagnosis or lack of treatment), results in increased costs." See Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and Supplemental Memorandum in Support of Defendant's Motion for Summary Judgment, p. 12. However, as stated supra, the third-party medical review by Dr. Chapman indicated that there was no pre-existing condition. Therefore, the cost of the plaintiff's medical expenses should not have been unanticipated. For the foregoing reasons, the court finds that the Plan Administrator's interpretation of the term "pre-existing medical condition" was legally incorrect.
2. Whether the Interpretation Was an Abuse of Discretion
The plaintiff argues that the benefit plan terms "pre-existing" and "medical condition" are ambiguous and, accordingly, under the doctrine of contra proferentum should be interpreted in the plaintiff's favor. The court disagrees. Ambiguous or not, under the abuse of discretion standard this court is bound by the administrator's interpretation of the benefit plan terms as long as that interpretation is reasonable. James v. Louisiana Laborers Health Welfare Fund, 29 F.3d 1029, 1033 (5th Cir. 1995); Hilliard v Bellsouth Medical Assist. Plan, 918 F. Supp. 1016, 1024 (S.D. Miss. 1995).
If the court concludes that the administrator's interpretation is incorrect, the court must then determine whether the administrator abused his discretion. Three factors are important in this analysis: (1) the internal consistency of the plan under the administrator's interpretation; (2) any relevant regulations formulated by the appropriate administrative agencies, and (3) the factual background of the determination and any inferences of good faith. Wildbur, 974 F.2d at 638 (citations omitted).
The court must also consider whether the Plan Administrator was operating under a conflict of interest; if so, that conflict must be weighed as a factor in determining whether there was an abuse of discretion. Firestone, 489 U.S. at 115. When an insurer is vested with sole and complete discretion to decide whether it will pay a claim, it necessarily operates under a conflict of interest. Vega v. National Life Ins. Serv., 145 F.3d 673, 678 (5 th Cir. 1998). In this case, the Plan granted the Plan Administrator with [t]he final authority and responsibility for administration of the group employee benefit plan." See Defendants' Motion for Summary Judgment, Exhibit A-1, Interhealth, Inc., Group Employee Benefit Plan, p. 29. The Plan Sponsor is Interhealth, Inc.; the Plan Administrator is Interhealth, Inc.; the Plan Benefits are provided by Interhealth, Inc. See Defendants' Motion for Summary Judgment, Exhibit A-1, p. 31. Moreover, the Plan Costs are financed by a fund generated by employee and employer contributions, and the employer in this case is Alexander's Home Health which is a subsidiary of Interhealth, Inc. See id.; see also Defendants' Motion for Summary Judgment, p. 5. The defendants assert that there was no conflict of interest since Interhealth carried an Excess Loss Indemnity Policy with AIG Life Insurance Company. See Defendants' Motion for Summary Judgment, p. 5; see also Defendants' Motion for Summary Judgment, Exhibit A-10. This policy is for claims of any particular employee that exceeds $60,000 within a year. This excess coverage does not affect the fact that Interhealth was both the Plan Administrator that had final authority to deny the plaintiff's benefits and the main funding source of the benefit plan. Consequently, the court finds that a conflict of interest did exist, and the court will consider that conflict in determining whether there was an abuse of discretion by the Plan Administrator in denying the plaintiff's benefits.
Under the abuse of discretion standard, the court must first determine if there was internal consistency in the plan under the Plan Administrator's interpretation of the terms "pre-existing" and "medical condition." From the record it appears that Bruce Hanson, who is not a medical doctor, was the Interhealth employee who decided whether claims were covered. See Defendants' Motion for Summary Judgment, Exhibit A, p. 2. In Mr. Hanson's affidavit he stated the following:
Based upon a review of the medical records, it seemed clear to me that Ms. Walley received evaluation and treatment in April-June of 1996 for a medical condition which existed on April 1, 1996, and therefore, a condition which was "pre-existing" under the Benefit Plan. More particularly, she was being treated in April-June of 1996 for an acute carotid artery occlusion or, in laymen's terms, blocked arteries. The medical records reflected diagnosis of the same problems in May of 1995, eleven (11) months before Ms. Walley's effective date of coverage under the Benefit Plan.
See id., p. 4. On the other hand, the plaintiff's treating doctor, J.W. Williamson, M.D., stated that "[t]o the best of my knowledge and experience, and to a reasonable degree of medical certainty based on the above information, it is my opinion that Donna Walley's acute emboli from her internal carotid artery did not exist on April 1, 1996, or at any time prior to its onset on April 17, 1996." See Plaintiff's Motion for Summary Judgment, Exhibit C, pp. 2-3. The plaintiff's treating nurse also opined that the 1995 treatment and the 1996 treatment were "separate and distinct medical conditions." See Plaintiff's Motion for Summary Judgment, Exhibit B, p. 3. Finally, and most persuasive, was that Interhealth's health care consultant, Dr. Chapman, confirmed that there were no symptoms of the transient ischemic attacks and disease of the left internal carotid artery until April 17, 1996.
The Plan Administrator's interpretation of the plan terms was not consistent with the group health plan. It appears that the Plan Administrator attempted to link two separate medical conditions merely because they were similar. The defendants' broad reading of a "pre-existing medical condition" transforms the benefit plan into one which insures only accidents; such a reading is contrary to the internal consistency of the benefit plan. Cf. Carpenter v. Bauhaus U.S.A., Inc., 4 F. Supp.2d 615, 617 (N.D.Miss. 1998) (holding that although coronary artery disease was a long term developing condition, it was not a "pre-existing condition" under the plan since the plaintiff had no symptoms, treatment, or diagnosis prior to effective date of coverage).
The second factor the court considers in the abuse of discretion analysis is any relevant regulations formulated by the appropriate administrative agencies; however, no relevant regulations have been presented to the court. Under ERISA, the court considers only the benefit plan and the applicable ERISA statutes. At this juncture, no additional analysis of ERISA or the benefit plan is needed.
Finally, the court considers the factual background of the determination and any inferences of good faith. This consideration includes the existence of the conflict of interest discussed supra. The facts relevant to the Plan Administrator's determination that the plaintiff had a "pre-existing medical condition" are as follows:
(1) On May 22, 1995, the plaintiff visited the Houston Family Medical Clinic in Houston, Mississippi, for a routine physical. She was examined by Jeanne Crockford, FNP, who made no diagnosis of any condition, but gave an impression that the plaintiff had probable peripheral arterial insufficiency. Nurse Crockford gave the plaintiff trial samples of Trental as a diagnostic aid; however, there was no follow-up diagnosis. See Plaintiff's Motion for Summary Judgment, Exhibit B, pp. 1-2. See also Defendants' Motion for Summary Judgment, Exhibit A-15, bates # 000055-000056.
(2) The plaintiff's effective date of coverage for the Benefit Plan was April 1, 1996. See Defendants' Motion for Summary Judgment, p. 3. See also supra, note 1.
(3) On April 18, 1996, the plaintiff was diagnosed as having suffered from an acute emboli from her internal carotid artery. See Plaintiff's Motion for Summary Judgment, Exhibit C, p. 2.
(4) On September 9, 1996, the plaintiff's attorney corresponded with the Benefits Coordinator at Alexander's Home Health, notifying the defendants of the plaintiff's objection to the defendants' denial of benefits. See Defendants' Motion for Summary Judgment, Exhibit A-3.
(5) On September 15, 1996, the defendant Alexander's Home Health responded, explaining that the September 9 th letter would be treated as a written request for review by the Plan Administrator. See Defendants' Motion for Summary Judgment, Exhibit A-4.
(6) On October 29, 1996, the medical review consultant, Dr. Chapman, opined that "Ms. Walley was symptomatic with lower extremity claudications during 1994. However, it was not until May 22, 1995 that reference is made to peripheral arterial insufficiency involving the lower extremities. Symptoms of transient ischemic attacks and disease of the left internal carotid artery was not noted until April 17, 1996." See Defendants' Motion for Summary Judgment, Exhibit A-5.
(7) On November 11, 1996, the Director of Risk Management for Interhealth wrote Dr. Chapman requesting a "more specific opinion regarding Ms. Walley's medical condition described as hypercholesterolemia and diagnosed as stenosis of the left internal carotid artery, which ultimately resulted in an endarterectomy of the left carotid artery." See Defendants' Motion for Summary Judgment, Exhibit A-6.
(8) On November 19, 1996, Dr. Chapman responded to the above stated request by stating that "[a]lthough the Mrs. Walley's hypercholesterolemia most likely pre-existed her diagnosis of the left internal carotid artery stenosis, the medical records submitted indicate that she was totally asymptomatic with respect to her carotid artery disease." Defendants' Motion for Summary Judgment, Exhibit A-7.
Based on this sequence of events, the court finds that the factual background of this case is indicative of the Plan Administrator's abuse of discretion. The opinions of the doctors and nurse indicate that the condition that was treated in April 1996 was not a pre-existing condition and that there is no evidence in the medical history that indicates that the ischemic transient attacks or the carotid artery disease existed on April 1, 1996. Although the plaintiff had hypercholesterolemia and peripheral arterial insufficiency in May of 1995, these conditions cannot be considered the same medical condition that existed in April, 1996. For the foregoing reasons, this court is of the opinion no reasonable fact-finder could conclude that the medical condition that was treated in April 1996 existed on April 1, 1996. As a matter of law, the Plan Administrator's interpretation of the Benefit Plan so as to deny the plaintiff benefits was an abuse of discretion.
D. Whether the Plaintiff Was Covered Under the Benefit Plan
Neither party's motion for summary judgment requests a ruling on whether or not the plaintiff was actually covered under the Benefit Plan on April 1, 1996. However, in the defendants' final brief, they assert that lack of coverage was a reason for the Plan Administrator's denial of benefits. See Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and Supplemental Memorandum in Support of Defendants' Motion for Summary Judgment, pp. 5-10. The plaintiff was considered to be a "late enrollee" under the Benefit Plan. The Benefit Plan states that "[l]ate enrollees will be effective on the first day of the month after the ninetieth (90 th) day after the application is received unless the employee lost coverage elsewhere for an acceptable reason (i.e., spouse changed jobs and new employer does not have a group plan; spouse's employer discontinued group plan)." See Defendants' Motion for Summary Judgment, Exhibit A-1, p. 21. If the employee "lost coverage elsewhere" as stated in the plan, the late enrollee may obtain coverage under the Benefit Plan within 30 days. See Defendants' Motion for Summary Judgment, Exhibit A. The plaintiff completed a "Statement of Lost Group Major Coverage" that was sent to her with an application for the Benefit Plan. See Plaintiff's Motion for Summary Judgment, Exhibit A, p. 2; see also Defendants' Motion for Summary Judgment, Exhibit A-2.
In a December 19, 1996, letter to the plaintiff, the Plan Administrator's affirmed the denial of benefits to the plaintiff on the basis of her "pre-existing conditions." However, the issue of coverage was addressed in the following manner:
During our review of this request, it came to our attention that in completing your application, you indicated that you "involuntarily" lost your previous insurance coverage, which necessitated your request to enter our health insurance program outside of the normal enrollment time. We contacted your former insurance carrier, State Farm, regarding the circumstances and the timing of your loss of coverage with them. We received a letter from State Farm stating that you voluntarily canceled coverage after the April 1, 1996, effective date of your coverage with our insurance. Therefore, you did not meet the criteria as indicated in your application of having involuntarily lost your coverage prior to your request for coverage under our program. By signing this application and indicating that you had lost your coverage involuntarily, the decision to admit you to the program was based upon erroneous information, and you did not qualify for coverage at that time. We are, therefore, taking the position that your coverage should be canceled at this time, and you can re-apply for participation in the program at the next annual enrollment date.
See Defendants' Motion for Summary Judgment, Exhibit A-9, pp. 1-2. Based upon this letter, the court is of the opinion that lack of coverage was not a basis upon which the Plan Administrator denied benefits. Rather, it was a ground for rescission. Therefore, the court will not analyze this issue under the abuse of discretion standard as asserted in the defendants' final memorandum. However, as to whether the defendants are now estopped from asserting this defense for denying coverage and whether the plaintiff's coverage was improperly rescinded so as to deny her from future benefits, the court is of the opinion that genuine issues of material fact exist.
A separate order in accordance with this opinion shall issue this day.
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED that
Defendants' Motion for Summary Judgment is DENIED;
Plaintiff's Motions for Summary Judgment is GRANTED IN PART and DENIED IN PART; and
the issues of coverage and damages will be determined at a bench trial presently set for March 1, 1999, before this court.
All memoranda, depositions, declarations, and other materials considered by the court in ruling on these motions are hereby incorporated into and made a part of the record in this action.
SO ORDERED.