IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BARBARA CLUCK : Case No. 2:18-cv-56

7732 County Road 183

Fredericktown, OH 43019, :

Plaintiff, : Judge ________________________

v. :

UNUM LIFE INSURANCE COMPANY : Magistrate Judge________________

 OF AMERICA

c/o Unum Group :

1 Fountain Square

Chattanooga, TN 37402, :

Defendant. :

COMPLAINT

Jury Demand Endorsed Hereon

For her Complaint against the Defendant, The Unum Life Insurance Company of 

America, the Plaintiff, Barbara Cluck, states as follows:

Parties

1. The Plaintiff, Barbara Cluck, a citizen and resident of Ohio, is a former employee 

of The Ohio State University (“OSU”) and is a third-party beneficiary of a group disability 

insurance policy, Policy No. 121156002 (the “Policy”), issued by Unum Life Insurance 

Company of America to OSU.

2. The Defendant, Unum Life Insurance Company of America (“Unum”), is an 

insurance company issued under the laws of this state with its principal place of business in 

Portland, ME and its place of incorporation in a state other than Ohio.

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Jurisdiction and Venue

3. The Plaintiff’s claim arises under the common law of Ohio, the parties are 

diverse, and the amount in controversy exceeds the jurisdictional amount. Jurisdiction is 

predicated on 28 U.S.C. §1332.

4. The Policy was issued by Unum and delivered to OSU in Columbus, Franklin 

County, Ohio. Venue is appropriate in the Eastern Division of the Southern District of Ohio.

Facts Common to All Claims

5. In June 2005, OSU hired Barbara Cluck as a medical assistant, at a wage of $2200 

per month.

6. As an employee of OSU, Cluck was eligible to participate in the disability benefit 

program established under the Policy.

7. In February 2008, Cluck became disabled from working due to severe back pain. 

An MRI of the thoracic spine showed edema at T8 and T9 and a wedge compression fracture at 

T6.

8. Cluck applied for and began receiving short-term disability benefits, also 

provided by Unum under the Policy. Unum ultimately approved and paid Cluck a short-term 

disability benefit to May 17, 2008, when the short-term disability period expired.

9. Near the conclusion of the short-term disability period, Unum reviewed Cluck’s 

medical status to ascertain whether she was eligible for long-term disability benefits.

10. Based on its review, Unum concluded that medical documentation supplied by 

Cluck and her physicians established that Cluck was “unable to stand/walk more than 10 

minutes, cannot bend, lift, push/pull.” Unum’s report continued: “The Claimant has had 

persistent back pain unrelieved by steroid injections and or pain medications.” According to 

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Unum, Cluck’s physician, Dr. Taylor, reported that Cluck “has difficulty getting up on the exam 

table, severe pain with lying down and sitting up.”

11. Unum’s analysis concluded: “Based on the Claimant’s history with DDD, 

fibromyalgia, depression, and noted physical activity limitations, it is likely” that the restrictions 

and limitations imposed by her doctor “are ongoing.” Unum, therefore, concluded that Cluck 

was disabled from performing the essential functions of her own occupation and approved 

Cluck’s long-term disability claim.

12. After two years of disability, the Policy required Cluck to show that she was 

disabled from performing the essential functions of “any” occupation. On May 21, 2009, Unum 

informed Cluck that it had determined that she was disabled from performing the essential 

functions of any occupation and it continued to approve her long-term disability claim.

13. In its May 21, 2009, letter, Unum wrote: “Based on the facts of your claim, as 

well as our clinical review, we do not anticipate a change in your medical status and therefore, 

have made the decision to extend our approval of your benefits, for symptoms related to the 

diagnosis of Degenerative Disc Disease and Fibromyalgia, through December 29, 2023.”

14. Despite its promise to extend benefits through 2023, Unum reviewed Cluck’s 

claim again in 2012. During that review, Unum reported Dr. Taylor had recorded in a December 

2011 note that Cluck “is in obvious distress, cries out in pain with minimal movement and has 

difficulty getting on exam table, climb down or sitting up”; that Cluck experienced numbness in 

her right leg “leading to falls and occasional use of cane”; and that her “prognosis is limited by 

reported lack of insurance therefore declining nerve blocks and ablation surgery.”

15. Unum concluded that it was “reasonable” to conclude that Cluck was not able to 

return to work and it again approved continuing benefits.

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16. Unum reviewed Cluck’s claim again in 2013. In this review, Unum noted that 

“there has been no indication of improvement” in Cluck’s condition and that she was “noted to 

be taking increased [amounts] of Percocet.” Unum concluded that Cluck “would not have 

sustainable predictable capacity at this time” and again approved continuing benefits.

17. Unum reviewed Cluck’s claim again in 2014. Unum observed that Dr. Taylor 

recorded that Cluck suffered from low back pain “that radiates into both legs causing weakness” 

and that some days Cluck “can barely get out of bed.” Unum also noted that Cluck had been 

transitioned “to higher dosage of narcotic medications and has not demonstrated an increase in 

her activities.”

18. Unum concluded: “Given the lack of improvement ... [Cluck] would not have 

sustained, predictable functional capacity.” Unum therefore again continued Cluck’s long-term 

disability benefit.

19. In May 2015, Heather Mercier, a nurse employed by Unum, reviewed Cluck’s file 

and concluded that Cluck had the capacity to engage in full-time sedentary employment. Nurse 

Mercier reached this conclusion in the absence of a personal medical evaluation and in the 

absence of any evidence that Cluck’s medical condition had improved.

20. Based on Nurse Mercier’s opinion, Unum closed Cluck’s claim on June 23, 2015, 

and informed her that it no longer considered her to be disabled.

21. Cluck’s physician, Dr. Taylor, objected to Nurse Mercier’s conclusion and 

reaffirmed her prior statements that Cluck was incapable of engaging in gainful employment.

22. After Dr. Taylor submitted additional evidence in support of Cluck’s claim, two 

additional Unum employees, Dr. Bryan Hauser and Dr. Joseph Sentef, also reviewed Cluck’s file 

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and, based solely on their file reviews, concluded that Cluck was capable of full-time 

employment.

23. Under the terms of the Policy, Unum was entitled to require Cluck to appear for a 

medical evaluation or a functional capacity evaluation for the purpose of assessing her ability to 

work. Unum did not ask Cluck to do so.

24. There is no medical evidence that demonstrates that Cluck’s condition has 

improved since Unum approved her claim in 2008.

25. There is no medical evidence that Cluck’s condition improved after 2014, when 

Unum had concluded that “Given the lack of improvement ... [Cluck] would not have sustained, 

predictable functional capacity.”

26. Although Cluck requested on multiple occasions that Unum reconsider its 

decision, Unum has refused to do so.

Count I – For Breach of Contract

27. The foregoing allegations are incorporated by reference as if fully rewritten 

herein.

28. Cluck brings this claim under the common law of Ohio.

29. Cluck is a third-party beneficiary under the Policy.

30. Cluck remains disabled under the Policy and entitled to a monthly benefit.

31. Unum breached the terms of its Policy by closing Cluck’s claim and terminating 

her monthly benefit.

32. As a direct and proximate cause of Unum’s breach of contract, Cluck has suffered 

damage in the form of lost monthly disability benefits. 

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Count II – For Bad Faith

33. The foregoing allegations are incorporated by reference as if fully rewritten 

herein.

34. Cluck brings this claim under the common law of Ohio.

35. Not only did Unum breach its contract with Cluck, it acted in bad faith in doing 

so. Unum’s actions were in bad faith, inter alia, because:

a. Unum was aware that Cluck was not eligible for Social Security disability 

benefits and that she was not eligible for benefits from the Ohio Public 

Employees Retirement System. Thus, Unum knew that Cluck’s sole source of 

income was her disability benefit payment from Unum.

b. In 2009 Unum informed Cluck that her claim would be approved through 

2023 based on the severity of her condition. In subsequent years, Unum 

reneged on that commitment and ultimately it terminated those benefits. 

c. Unum approved Cluck’s claim year after year based upon reports from 

Cluck’s physician. In 2015, Unum abruptly decided, without notice to Cluck, 

that a report from her physician was no longer sufficient to continue approval 

of her claim.

d. Despite its knowledge that Cluck was dependent upon her disability benefits, 

Unum terminated Cluck’s benefit without first affording her the opportunity to 

provide additional medical evidence.

e. At no time did Unum inform Cluck of the information it required in order to 

reinstate her claim.

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f. Although Unum had the right to require Cluck to be examined by an 

independent physician, Unum did not exercise that right.

g. Unum terminated Cluck’s benefits based solely on the opinions of its own 

employees, none of whom personally examined Cluck.

36. As a direct and proximate cause of Unum’s bad faith, Cluck has suffered harm, 

including impairment of credit due to unpaid bills.

37. Unum’s actions, moreover, were in reckless disregard of Cluck’s rights under the 

terms of the Policy.

WHEREFORE, the Plaintiff, Barbara Cluck, demands judgment in her favor and against 

Unum as follows:

A. For compensatory damages for breach of contract in an amount to be determined at 

trial, but in no event less than $140,000;

B. For compensatory damages for bad faith in an amount to be determined at trial, but in 

no event less than $100,000;

C. For punitive damages in an amount to be determined at trial, but in no event less than 

$100,000;

D. Attorney’s fees and the costs of this action;

E. Pre-judgment and post-judgment interest; and

F. Such other and further relief as the Court determines to be just and equitable.

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Respectfully submitted,

 /s/ Tony C. Merry

Tony C. Merry (0042471)

Trial Attorney

Law Offices of Tony C. Merry, LLC

7100 N. High Street, Suite 302

Worthington, Ohio 43085

(614) 372-7114

(614) 505-6109 [fax]

tmerry@tmerrylaw.com

Attorney for Plaintiff

Jury Demand

Plaintiff demands trial by jury.

_____/s/ Tony C. Merry________

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