IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT EVERTS : Case No. 2:18-cv-690

1920 Rathmell Road

Columbus, OH 43207 :

Plaintiff, : Judge ________________________

v. :

THE LINCOLN NATIONAL LIFE INSURANCE : Magistrate Judge_______________

COMPANY

1300 S. Clinton Street :

Fort Wayne, IN 46802-3506

:

Defendant.

:

COMPLAINT

Jury Demand Endorsed Hereon

For his Complaint against the Defendant, The Lincoln National Life Insurance Company, 

the Plaintiff, Robert Everts, states:

Parties

1. The Plaintiff, Robert Everts, a citizen and resident of Ohio, is a former employee 

of the Catholic Diocese of Columbus, Ohio (the “Diocese”), and is a third-party beneficiary of a 

group disability insurance policy, Policy No. 00001013389100000 (the “Policy”), issued to the 

Diocese by The Lincoln National Life Insurance Company.

2. The Defendant, The Lincoln National Life Insurance Company (“Lincoln”), is an 

insurance company organized under the laws of a state other than Ohio, with its principal place 

of business in a state other than Ohio.

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Jurisdiction and Venue

3. The Plaintiff’s claims arise under the common law of Ohio, the parties are 

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

upon diversity of citizenship, 28 U.S.C. § 1332(a).

4. The Policy was issued by Lincoln and delivered to the Diocese 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 May 1980, the Diocese hired Robert Everts as a groundskeeper.

6. Over the years of his employment, Everts was promoted to the Head of 

Maintenance, which required him to perform building maintenance, grounds keeping, and 

vehicle and equipment maintenance.

7. As an employee of the Diocese, a church employer, Everts was eligible for 

benefits under the Policy. 

8. The Policy provides, inter alia, long-term disability income benefits for persons 

who are disabled and unable to work.

9. The Policy provides disability benefits for two years if a claimant is disabled from 

his “own occupation.” After two years, the Policy pays benefits only to individuals who are 

disabled from performing the essential functions of “any occupation,” as that term is defined in 

the Policy. 

10. Everts had worked for the Diocese for 35 years when he became disabled from 

working due to multilevel foraminal stenosis L3-S1, severe foraminal stenosis at L5-S1 on the 

right side, and a right-sided herniation at L3-4 creating moderate to severe stenosis on that side.

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11. Everts was treated surgically with lumbar decompression/spinal fusion surgery in 

June 2015, but even after surgery he continued to be unable to perform the essential functions of 

his own occupation.

12. Everts applied for, and received, the maximum short-term disability benefits 

available from Lincoln.

13. In September 2015, Everts timely applied for long-term disability benefits under 

the Policy. Lincoln approved Evert’s application and eventually paid Everts a monthly longterm disability benefit from September 6, 2015 through September 6, 2017, the end of Everts’s

“own occupation” period under the Policy.

14. In May 2017, Lincoln informed Everts that it had concluded that he was not 

disabled from “any occupation” and that his benefits would terminate on September 6, 2017.

15. Everts appealed Lincoln’s decision. His appeal was supported by his treating 

physician, Dr. Charles Kistler, who is certified by the American Orthopedic Board of Family 

Physicians.

16. Dr. Kistler informed Lincoln that Everts was physically incapable of gainful 

employment because, inter alia, he could not sit for more than one-third of a day.

17. Disregarding Dr. Kistler’s judgment and without offering a basis for doing so, 

Lincoln rejected Everts’s appeal.

18. Everts appealed again. In response, Lincoln arranged for Everts to be examined 

by Dr. Kevin Trangle.

19. Dr. Trangle is neither an orthopedic surgeon nor a rheumatologist.

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20. Everts presented himself for the examination on March 15, 2018. Dr. Trangle 

informed Everts at the outset that he (Dr. Trangle) “already had his report mostly finished,” and 

he “just needed to do his exam.”

21. On March 22, 2018, Dr. Trangle submitted a report to Lincoln. In his report, Dr. 

Trangle summarized the medical evidence of Everts’s numerous injuries and illnesses, including 

among other conditions, rheumatoid arthritis, polyarthropy, degenerative and arthritic changes in 

several of his joints including his spine; shoulder issues including a full thickness tear of two 

tendons, degenerative changes, AC compression, and impingement all of which required surgery 

in April 2017; and degenerative undersurface tearing and changes of the medial meniscus, 

cartilage degeneration and loose bodies in both knees, cervical degenerative changes, and 

bilateral carpal tunnel syndrome.

22. Despite Everts’s extensive impairments, Dr. Trangle concluded in his report that 

Everts was capable of light strength work capacity.

23. Despite Lincoln’s specific instruction that he do so, Dr. Trangle did not answer 

responsively the question which Lincoln posed to him: “whether the restrictions and limitations 

of the treating physicians were ‘reasonable.’”

24. Lincoln provided a copy of Dr. Trangle’s report to Dr. Kistler. After again 

examining Everts in April 2018, on April 24, 2018, Dr. Kistler disputed Dr. Trangle’s conclusion 

that Everts could work and reiterated his own opinion that Everts was unable to sit for more than 

one-third of a day.

25. On November 29, 2017, after Lincoln had terminated Everts’s long-term 

disability benefits, and while Everts’s appeal was pending, Lincoln informed Everts that Lincoln 

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believed that he was not only eligible for, but a “good candidate” to receive Social Security 

disability benefits (“SSDI”).

26. Lincoln then required Everts to apply for SSDI benefits and offered to provide 

him with assistance in doing so.

27. SSDI benefits are awarded only if an applicant establishes that he is disabled from 

engaging in any gainful employment, a definition of “total disability” that is more stringent than 

Lincoln’s “any occupation” definition of disability.

28. Everts applied for SSDI. On May 27, 2018, Everts’s SSDI application was 

approved, with a disability date of February 9, 2017. Everts was awarded SSDI benefits 

retroactive to August 2017.

29. On May 31, 2018, despite the SSDI determination that Everts was totally disabled 

from engaging in any gainful employment, Lincoln upheld its termination of his long-term 

disability benefits.

30. Despite its denial of Everts’s continuing claim, Lincoln asserted a right to recover

as an “overpayment” the full amount of Everts’s SSDI back benefits award.

Count I – Breach of Contract

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

herein.

32. Everts brings this claim under the common law of Ohio.

33. Everts is a third-party beneficiary under the Policy.

34. Everts remains disabled under the Policy and entitled to a monthly benefit.

35. Lincoln breached the terms of its Policy by closing Everts’s long-term disability 

benefits claim and terminating his monthly benefit while he remained disabled.

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36. As a direct and proximate cause of Lincoln’s breach of contract, Everts suffered 

damage in the form of lost monthly disability benefits. 

Count II – Insurance Bad Faith

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

herein.

38. Everts brings this claim under the common law of Ohio.

39. Not only did Lincoln breach its contract with Everts, it also acted in bad faith in 

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

a. Lincoln was aware that Everts was eligible for, and was a “good candidate” 

for, Social Security disability insurance benefits, yet it denied his “any 

occupation” disability claim.

b. Lincoln required Everts to apply for SSDI benefits, yet it disregarded the 

SSDI decision awarding Everts benefits. 

c. Lincoln contacted Everts by phone and letter numerous times directly, to 

address his SSDI benefits and Lincoln’s desire to recoup its alleged 

overpayment of his long-term disability, knowing that he was represented by 

counsel in relation to his long-term disability benefits.

d. Lincoln took unreasonable actions to justify its decision to terminate Everts’s

benefits, such as relying upon the report of one brief examination by its own

consulting physician while ignoring a large quantity of other medical evidence 

to the contrary.

e. Lincoln unreasonably and selectively reviewed Everts’s claim and appeal.

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f. Despite its knowledge that Everts had not worked in years and was dependent 

upon his long-term disability benefits, Lincoln terminated Everts’s benefits

without first affording him the opportunity to provide additional medical 

evidence.

g. Lincoln unreasonably terminated Everts’s benefits relying solely on the 

opinions of its own employees and paid consultants.

h. Lincoln unreasonably relied upon the examination of a medical doctor who 

was neither an orthopedic surgeon nor a rheumatologist in deciding Everts’s

appeal.

i. Lincoln unreasonably ignored the decision of the Social Security 

Administration that Everts is totally disabled in deciding to uphold its own 

termination of benefits.

j. Lincoln unreasonably ignored Everts’s treating physician’s determinations 

and medical evidence in deciding to uphold its termination of benefits.

k. Lincoln unreasonably sought to recoup the full amount of Everts’s SSDI back 

benefits award as an alleged “overpayment” of long-term disability benefits 

that Lincoln paid to Everts for a different time period than that which the SSA 

awarded him SSDI benefits.

40. Lincoln’s handling and processing of Everts’s long-term disability claim was not 

reasonably justified, and as such, constituted bad faith.

41. Lincoln’s conduct in handling and processing Everts’s long-term disability claim 

was oppressive, and was undertaken knowingly, intentionally, willfully with malice, and in 

disregard of Everts’s rights.

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42. Lincoln’s denial of Everts’s claim for long-term disability is not predicated upon 

circumstances that furnish a reasonable justification therefore.

43. As a direct and proximate cause of Lincoln’s bad faith, Everts suffered harm, 

including impairment of credit due to unpaid bills.

44. As a direct and proximate cause of Lincoln’s bad faith, Everts suffered harm 

including loss of his group health insurance coverage as of January 1, 2018.

45. Due to this loss of health insurance, Everts has been unable to obtain the surgery 

that he needs on his right knee, continues to suffer intense, throbbing, daily pain and continues to 

walk with a severe limp.

46. Lincoln’s actions, moreover, were in reckless disregard of Everts’s rights under 

the terms of the Policy.

WHEREFORE, the Plaintiff, Robert Everts demands judgment in his favor and against

Lincoln as follows:

A. For compensatory damages for breach of contract and bad faith in an amount to 

be determined at trial but in no event less than $100,000;

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

than $100,000;

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

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

E. 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)

Lesley H. Kuhl (0067177)

Trial Attorneys

Law Offices of Tony C. Merry, LLC

7100 N. High Street, Suite 302

Worthington, Ohio 43085

Phone (614) 372-7114

Fax (614) 505-6109

tmerry@tmerrylaw.com

lkuhl@tmerrylaw.com

Attorneys for Plaintiff

Jury Demand

The Plaintiff demands trial by jury.

 _____/s/ Tony C. Merry_______

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