RIEMER & ASSOCIATES LLC

Attorneys for Plaintiff 

Office and Post Office Address 

60 East 42nd Street, Suite 2430 

New York, New York 10165 

(212) 297-0700 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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CRAIG FASHBAUGH, 07 CV 5791 

 Plaintiff, COMPLAINT

 -againstCONTINENTAL ASSURANCE COMPANY and 

HARTFORD LIFE AND ACCIDENT INSURANCE 

COMPANY, 

 Defendants. 

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 Plaintiff, Craig Fashbaugh, by his attorneys, Riemer & Associates LLC, 

complaining of defendants alleges: 

1. This is an action arising under the Employee Retirement Income Security 

Act of 1974, as amended ("ERISA"), 29 U.S.C. §1001, et. seq., to recover benefits due under an 

employee benefit plan, to clarify the rights of plaintiff to future benefits under such plan, and to 

recover attorney fees and costs. 

2. This Court has subject matter jurisdiction pursuant to Section 502(e)(1) of 

ERISA, 29 U.S.C. §1132(e)(1) and 28 U.S.C. §1331. Under Section 502(f) of ERISA, 29 U.S.C. 

§1132(f), this Court has jurisdiction without respect to the amount in controversy or the 

citizenship of the parties. 

Case 1:07-cv-05791-CM Document 1 Filed 06/19/2007 Page 1 of 4
3. Venue is properly in this district pursuant to Section 502(e)(2) of ERISA, 

29 U.S.C. §1132(e)(2), in that the Plan as hereinafter defined is administered in this district and 

the defendants reside or may be found in this district. 

4. At all relevant times, plaintiff was and is a participant within the meaning 

of Section 3(7) of ERISA, 29 U.S.C. §1002(7), in the Continental Assurance Company’s Long 

Term Disability Plan (the "Plan"). 

5. At all relevant times, the Plan is and has been an "employee welfare 

benefit plan" within the meaning of Section 3(1) of ERISA, 29 U.S.C. §1002(1). 

6. At all relevant times, Continental Assurance Company ("CNA") and 

Hartford Life and Accident Insurance Company (“Hartford”) have been the claims 

administrators of the Plan within the meaning of ERISA §3(16)(A), 29 U.S.C §1002(16)(A); and 

have been fiduciaries under the Plan within the meaning of ERISA §3(21)(A), 29 U.S.C 

§1002(21)(A). 

7. The benefits under the Plan are funded by Group Policy No. L10015 

issued by CNA. 

8. Plaintiff was employed as a Project Manager at Continental Insurance 

Company. 

9. As an employee of Continental Insurance Company, plaintiff was 

provided with long term disability insurance coverage under the Plan. 

10. On June 16, 1996, plaintiff was rendered totally disabled within the 

meaning of the Plan as a result of his HIV disease. 

11. Benefits were paid under the Plan from June 11, 1997 through November 

20, 2006, but then benefits were discontinued by CNA and Hartford. 

Case 1:07-cv-05791-CM Document 1 Filed 06/19/2007 Page 2 of 4
12. Plaintiff appealed CNA and Hartford's discontinuation. 

13. By letter dated August 11, 2006, CNA and Hartford denied plaintiff's final 

appeal. 

14. Plaintiff has complied with and exhausted all administrative appeals under 

the Plan. 

COUNT I

15. Under the terms of the Plan, a disabled participant is entitled to a monthly 

benefit equal to 66 2/3% of pre-disability earnings. 

16. From June 16, 1996, plaintiff has been totally disabled within the meaning 

of the Plan. 

17. From June 16, 2006, plaintiff has not worked and has had no earnings. 

18. CNA and Hartford's determination that plaintiff is not totally disabled 

within the meaning of the Plan is contrary to the terms of the Plan, contrary to the medical 

evidence, unreasonable, and arbitrary and capricious. 

19. Upon information and belief, CNA and Hartford have a conflict of 

interest. 

20. Upon information and belief, CNA and Hartford's determination of 

plaintiff's claim for benefits was affected by their conflict of interest. 

21. Under Section 502(a)(1)(B) of ERISA, 29 U.S.C. §1132(a)(1)(B), plaintiff 

is entitled to recover disability benefits under the Plan that have not been paid to date and those 

that will become due in the future. 

Case 1:07-cv-05791-CM Document 1 Filed 06/19/2007 Page 3 of 4
COUNT II

22. Plaintiff repeats and realleges the allegations of paragraphs 1 through 21 

above. 

23. By reason of CNA and Hartford's failure to pay plaintiff long term 

disability benefits as due under the terms of the Plan, plaintiff has been forced to retain attorneys 

to recover such benefits, for which plaintiff has and will continue to incur attorney's fees. 

Plaintiff is entitled to recover reasonable attorney's fees and the costs of this action, pursuant to 

Section 502(g)(1) of ERISA, 29 U.S.C. §1132(g)(1). 

 WHEREFORE, plaintiff demands judgment against CNA and Hartford: 

A. For the amount of all long term disability benefits due under the terms of 

the Plan that have not been paid, together with interest thereon; 

B. Clarifying and declaring that the Plan is obligated to pay plaintiff long 

term disability benefits in the future as required by the Plan; 

C. For the costs of this action and plaintiff's attorney's fees, pursuant to 

Section 502(g) of ERISA, 29 U.S.C. §1132(g); and 

D. For such other and further relief as may be deemed just and proper by the 

Court. 

Dated: New York, New York 

 June 18, 2007 

 RIEMER & ASSOCIATES LLC

 Attorneys for Plaintiff 

 60 East 42nd Street, Suite 2430 

 New York, New York 10165 

 (212) 297-0700 

 By:__________________________ 

 Scott M. Riemer (SR5005) 

Case 1:07-cv-05791-CM Document 1 Filed 06/19/2007 Page 4 of 4