Law Offices Of P. Randall Noah

P. Randall Noah, SBN 136452

21 Orinda Way, Suite C, #316

Orinda, CA 94563

Tel. (925) 253-5540

Fac. (925) 253-5542

Email: pnoah@ix.netcom.com

Attorney for Plaintiff,

David Tippitt

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF CALIFORNIA

DAVID TIPPITT, CASE NO. 

Plaintiff, COMPLAINT 

29 USC §1132(a)(1)(B)

vs.

LIFE INSURANCE COMPANY OF

NORTH AMERICA,

Defendant.

_______________________________/

PLAINTIFF, DAVID TIPPITT, ALLEGES AS FOLLOWS:

JURISDICTION

1. This action arises under the Employee Retirement 

Income Security Act of 1974, 29 USC §§1001 et seq., and 

more particularly 29 USC §1132(a)(1)(B) thereof. This 

court has jurisdiction under 29 USC §1132(f), which grants 

to the federal courts concurrent jurisdiction to determine 

claims under 29 USC §§1001 et seq.

2. Venue is proper under 29 USC §1132(g) in that the 

defendant, Life Insurance Company Of North America

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(“LINA”), does business within the jurisdiction of the 

United States District Court, Northern District Of 

California.

3. Plaintiff is a resident of Brentwood, California.

4. Plaintiff is informed and believes that Defendant, 

Life Insurance Company of North America (hereinafter 

“LINA”), was and is a Pennsylvania corporation, with its 

principal place of business in Philadelphia, Pennsylvania.

ALLEGATIONS CONCERNING RELIEF SOUGHT

5. By February, 2013, Mr. David Tippitt (age 61 now), 

was experiencing such fatigue, pain and effects from 

cirrhosis, hepatocellular carcinoma, hepatitis C, renal 

cancer, chronic kidney disease stage III, diabetes, kidney 

cancer and a prior unilateral nephrectomy, esophageal 

varices, hyperlipidimeia, hypertension, cardiac 

catheterization, anemia, gastritis, partial hepatectomy, 

right nephrectomy for renal cell carcinoma and lobectomies 

for hepatocellular carcinoma (and the effect of the large 

number of medications required to stabilize his condition) 

that he could no longer continue in his occupation as a 

Process Operations Shift Supervisor at Tesoro Corporation 

(an oil refinery) in Martinez, California, as confirmed by 

his treating physicians. No return to work date has ever 

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been determined by any treating doctor due to a required 

liver transplant, performed at UCSF at the end of 2014. 

Mr. Tippitt’s liver no longer functioned to a degree that 

would sustain life. He required a liver transplant, which 

was done. The liver cancer and liver disease stems from 

Hepatitis C, which was contracted while serving as a medic 

in the U.S. Army. Extreme fatigue and weakness are welldocumented side effects and symptoms of liver 

disease/failure, exactly as happened to Mr. Tippitt. The 

liver transplant does not alleviate all symptoms. While 

the liver transplant has not been rejected, all other 

conditions, including the neuropathy and fatigue continue. 

His doctors will not release him to work. The Soc. Sec. 

Admin. continues to confirm Mr. Tippitt cannot work in any 

occupation, just as defendant had found for three years 

under the own occupation definition of disability. Now 

LINA claims Mr. Tippitt can be employed full time as a 

superintendent of a generating plant or a superintendent of 

measurement, and accordingly terminated his disability 

insurance benefits. Mr. Tippitt appealed the denial of 

benefits and that appeal has been effectively denied by 

defendant’s failure to make a determination on the appeal 

in a timely manner. 

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6. When plaintiff was found disabled from his 

employment at Tesoro by his doctors, there was in existence 

for all Tesoro employees, including the plaintiff, a long 

term disability insurance plan through LINA, and 

administered by LINA.

7. The long-term disability insurance plan was to 

provide disability payments to any employee covered by the 

plan, including plaintiff, who suffered a total disability, 

as defined by the plan.

8. Plaintiff’s liver failure and other conditions 

stated above led to a total disability from his occupation 

as an oil refinery Operations Supervisor, as determined by 

his medical doctors, and he applied for benefits under the 

long term disability insurance plan administered by 

defendant. Plaintiff’s application for benefits was based 

on the opinion of plaintiff’s treating physician that he 

could not return to work in his former occupation, and 

subsequently, any occupation, due to severe limitations, 

fatigue and pain associated with his many medical 

conditions listed above, as found by the Social Security 

Administration.

9. Plaintiff’s personal physician believed that 

plaintiff was in fact disabled from returning to work as an 

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Operations Supervisor and any other job which would require 

physical activity with long periods of standing, computer 

and keyboard work, high cognitive functioning, and nearly 

any physical activity without frequent rest. 

10. Plaintiff accordingly applied for benefits under 

defendant’s long term disability plan. Long-term 

disability benefits were granted for three years, and then 

denied due to defendant’s opinion that the plaintiff’s 

medical conditions, pain, symptoms, fatigue and effect of 

medications were not severe enough to prevent plaintiff 

from returning to full time work. Plaintiff appealed 

defendant’s decision in accord with the requirements of his 

policy. The appeal was denied by defendant through their 

failure to make any determination on the appeal. The 

administrative appeals have been exhausted. 

11. The relevant portions of the LINA long-term 

disability insurance policy read as follows:

“The Employee is considered Disabled if, solely because of 

Injury or Sickness, he or she is 1. unable to perform the 

material duties of his or her Regular Occupation; and 2. 

unable to earn 80% or more of his or her Indexed Earnings 

from working in his or her Regular Occupation. After 

Disability Benefits have been payable for 36 months, the 

Employee is considered Disabled if, solely due to Injury or 

Sickness, he or she is: 1. unable to perform the material 

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duties of any occupation for which he or she is, or may 

reasonably become, qualified based on education, training 

or experience; and 2. unable to earn 80% or more of his or 

her Indexed Earnings.”

12. Defendant breached its obligation under the longterm disability plan by denying plaintiff’s disability

payments when plaintiff met all of the above criteria, 

which set forth eligibility. Defendant arbitrarily and 

unreasonably relied on retained consultants’ opinions as 

opposed to plaintiff’s own statements and treating doctors’ 

opinions.

13. Plaintiff at all times herein mentioned has 

performed all the terms and conditions of the LINA’s long 

term disability plan on his part to be performed.

14. As a proximate result of defendant’s failure and 

refusal to perform its obligations under the long term 

disability plan, plaintiff has been compelled to retain 

counsel to protect his rights under the plan, incurring 

legal fees and costs that are recoverable pursuant to 29 

USC

§1145.

WHEREFORE, plaintiff prays judgment against defendant 

as follows:

1. For compensatory damages;

2. For costs of suit herein;

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3. For reasonable attorney fees paid by plaintiff 

pursuant to 29 USC §1145;

4. For prejudgment interest on all back benefits;

5. For such other and further relief as the court may 

deem proper.

DATED: January 10, 2017 Law Offices Of P. Randall Noah

By: /s/ P. Randall Noah

P. Randall Noah

Attorney for Plaintiff, David Tippitt

 

 

 

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