UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIR E

x

ELIZABETH DALY,

CIVIL ACTION NO.: 1 :06-cv-127-J D

Plaintiff,

V.

UNUM LIFE INSURANCE COMPLAINT

COMPANY OF AMERICA,

Defendant.

x

Plaintiff, Elizabeth Daly, by her undersigned attorney, as and for her Complaint against

the defendant, UNUM LIFE INSURANCE COMPANY OF AMERICA (hereinafter, "UNUM"),

alleges as follows:

JURISDICTION AND VENUE

1 . Jurisdiction of the court is based upon 29 U .S.C. §§ 1132(e)(1) and 1132(f) which

give the district courts jurisdiction to hear civil actions brought to recover benefits due under the

terms of an employee benefit plan, which for purposes of the instant case, grants to participants

Long Term Disability ("LTD") Insurance benefits . UNUM insures the benefits provided through

Plaintiffs employer's LTD Plan . In addition, this action may be brought before this court

pursuant to 28 U .S.C. § 1331, which gives the district court jurisdiction over actions that arise

under the laws of the United States.

2. The LTD Plan contains provisions for administrative or internal appeal of a denial

of benefits. Plaintiff has exhausted her remedies under these provisions, has received a final

denial of her claim and, therefore, this matter is properly before this court for de novo review

under Firestone Tire & Rubber Co . v. Bruch, 489 U.S. 101 (1989).

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3. Plaintiff is a resident of Davie, Florida.

4. Venue is proper in this district pursuant to 29 U .S.C. § 1132(e)(2) which allows

an action under Title I of the Employee Retirement Income Security Act of 1974, as amended

("ERISA") to be brought in the district where the plan is administered, where the breach took

place, or where a defendant resides or may be found.

5. With respect to Plaintiffs claim, the Plan was administered in, and the breach

occurred within, the District of New Hampshire .

NATURE OF ACTIO N

6. Plaintiffs claim seeks a declaration that Plaintiff is entitled to LTD benefits

pursuant to an employee benefit plan providing for long term disability benefits, sponsored and

administered by Plaintiffs employer, RMC Research Corporation, and insured by Unum Life

Insurance Company of America ("UNUM") under Group Policy No . 532279. As Plaintiffs claim

arises under an employee benefit plan, established and maintained by an employer for the benefit

of its employees, the Employee Retirement Income Security Act of 1974 ("ERISA")(29 U .S.C.

§ 1001 et seq.) applies to this action . Said benefits were effective at all times relevant hereto.

THE PARTIE S

7 . Plaintiff is a 61 year-old woman who was born in 1944 .

8 . RMC Research Corporation Long-Term Disability Plan, is an Employee Benefit

Plan as defined by ERISA .

9 . Defendant, UNUM, is a wholly owned subsidiary of UNUMProvident

Corporation. UNUM is engaged in the business of insurance, and is licensed and authorized t o

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engage in the business of insurance within the State of New Hampshire .

STATEMENT OF FACTS

10. Prior to, and including February 28, 2002, Plaintiff was employed by The RMC

Research Corporation, as a Support Staff Coordinator.

11 . For a period up to and including February 28, 2002, Plaintiff, together with other

active full time employees, was covered as a participant under the LTD Plan sponsored, funded,

and administered by Plaintiffs employer . The Plan provides for payment of monthly income

benefits to participants who become Disabled. The payments are reduced by certain specified

other sources of income, including Social Security Disability benefits . Payments under the Plan

begin after a claimant has satisfied the 90-day elimination period.

12 . The LTD Plan defines "Disability" as follows:

"You are disabled when it is determined that :

1 . you are limited from performing the material and substantial duties of your

regular occupation due to your sickness or injury ; and

2 . you have a 20% or more loss in your indexed monthly earnings due to the

same injury or sickness.

After 24 months of disability payments, you are disabled when you are unable to

perform the duties of any gainful occupation for which you are reasonably fitted

by education, training or experience .

13 . The Plan also provides for a maximum LTD benefit period to the participant's age

65 when she becomes disabled prior to reaching age 60 .

14. Plaintiff ceased work on February 28, 2002, as a result of multiple physical

symptoms she experienced which prevented her from performing each of the material duties of

her occupation. Plaintiff has been diagnosed with Fibromyalgia, depression and anxiety .

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15 . Subsequent to her onset of disability, Plaintiff applied for long term disability

benefits under the LTD Plan by submitting a completed claim, including her Attending

Physician's Statement, to Defendant, UNUM.

16. From February 28, 2002, through the present, Plaintiff has satisfied the LTD Plan's

definition of disability : due to her medical condition, she has been precluded from performing

each of the material duties of her occupation .

17 . By letter dated October 7, 2002, defendant, UNUM, informed Plaintiff that her

claim for LTD benefits was denied . The letter indicated, in part : "UNUM will look at your

occupation as it is normally performed in the national economy, instead of how the work tasks are

performed for a specific employer at a specific location" and concluded, "[t]here is lack of

documentation to support the diagnosis of fibromyalgia . "

18 . After Plaintiff received the denial notification, she requested a review of that

determination, as provided for by ERISA . In this connection, Plaintiff forwarded a letter dated

April 1, 2003, to defendant, UNUM, together with additional medical evidence in support of her

claim .

19 . By letter dated April 8, 2003, UNUM acknowledged receipt of Plaintiffs request

for review of the LTD claim denial under the terms of the LTD Plan and indicated that the file

would be forwarded for further review.

20. By letter dated June 20, 2003, UNUM upheld its previous denial with respect t o

Plaintiffs claim for LTD benefits under the LTD Plan.

21 . To date, UNUM has continued to uphold its previous denial of Plaintiffs LTD

claim .

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AS AND FOR PLAINTIFF 'S CLAIM:

FOR LONG TERM DISABILITY BENEFITS AS AGAINST

DEFENDANT, UNUM

22 . Plaintiff hereby incorporates by reference the allegations of paragraphs 1 - 21,

supra, as if fully set forth at length.

23 . ERISA mandates, in relevant part :

[E]very employee benefit plan shall-

(2) afford a reasonable opportunity to any participant whose claim for

benefits has been denied for a full and fair review by the

appropriate named fiduciary of the decision denying the claim.

ERISA § 503(2); 29 U.S.C. § 1133(2).

24. In administering various employee benefit plans and in processing claims

thereunder, UNUM has the responsibility of determining whether claimants are disabled within

the definitions of the applicable plans and policies so as to be entitled to benefits . Crucial to those

determinations is an understanding of the claimant's medical conditions and their effects on the

claimant's abilities.

25 . Fiduciaries have a statutory obligation , in performing their duties, to act prudently

and solely in the interest of plan participants and beneficiaries .

26. Plaintiff has not been provided with a full and fair review of her claim for benefits

under the terms and conditions of the LTD Plan, and in accordance with the provisions of ERISA .

27 . The Long Term Disability claim decisions rendered in the instant action have been

made by UNUM, who insures the defendant LTD Plan, and as such, cannot render independent o r

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fair decisions because it has a pecuniary interest in the final determination, and thus acts under a

conflict of interest.

28 . Fiduciaries also have a statutory duty to fairly interpret and construe the terms of

the Plan and thereby make decisions in accordance with Plan language .

29 . Defendant's decisions were not supported by the medical evidence and moreover,

did not correctly apply the language of the LTD Plan .

30. Defendant's decisions in the instant claim were unreasonable, arbitrary and

capricious and not supported by the evidence submitted with Plaintiffs claim, or the evidence

submitted during the review stages of Plaintiffs claim .

31 . Plaintiff is disabled within the terms of the LTD Plan maintained for the benefit of

the employees of RMC Research Corporation . Plaintiff is entitled to the receipt of monthly Long

Term Disability benefits pertaining to her disability from (and including) February 28, 2002, and

continuing for the time allowed under the LTD Plan .

WHEREFORE, Plaintiff prays for the following relief :

A . That the Court determine and then declare that under the terms of the LTD Plan,

that the Plaintiffs total disability continued from (and included) February 28,

2002, within the term of coverage, and that she was and continues to be disabled

within the Plan's provisions.

B . That after making such a determination, the Court ORDER the Defendants, to

provide all disability benefits to which Plaintiff is entitled under the terms and

provisions of said LTD Plan, from February 28, 2002, to the present.

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C. That, if necessary, the Court ORDER the matter remanded to the Plan's

administrator for such further and additional findings as may be reasonably

necessary.

D . That the Court award Plaintiff her attorney's fees pursuant to 29 U .S .C. § 1132(g),

as well as interest, costs, and disbursements.

E. That the Court award Plaintiff such further, necessary, or proper relief as it deems

just and equitable in the circumstances.

Dated: March 17, 2006

PLAINTIFF

By her attorney,

PHILIP A . PARRY, P.C.

By: /s/Thomas C. Tretter

Thomas C. Tretter, NH Bar No. 12544

4 Merrimac Squar e

P.O. Box 261

Merrimac , MA 01860

(978) 346-0005

OF COUNSEL:

STEPHEN L. RAYMOND, ESQ.

3 Washington Square, Ste. 206

Haverhill, MA 0183 0

(978) 372-6590

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