UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Louise Polley,

Plaintiff

v. Civil No. 08-cv-392-SM

Opinion No. 2009 DNH 080

Harvard Pilgrim

Health Care, Inc.,

Defendant

O R D E R

Plaintiff, Louise Polley, is suing her former employer,

Harvard Pilgrim Health Care, Inc. (“Harvard Pilgrim”). She seeks

to recover for negligent infliction of emotional distress, and

for Harvard Pilgrim’s alleged failure to provide her in a timely

manner with documents pertaining to a benefit plan subject to the

Employee Retirement Income Security Act of 1974 (“ERISA”). 

Before the court is defendant’s motion for judgment on the

pleadings. For the reasons given, defendant’s motion is granted.

The Legal Standard

“A motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) is treated much like a Rule 12(b)(6)

motion to dismiss.” Estate of Bennett v. Wainwright, 548 F.3d

155, 163 (1st Cir. 2008) (citing Pérez-Acevedo v. Rivero-Cubano,

520 F.3d 26, 29 (1st Cir. 2008)). When ruling on a motion for

judgment on the pleadings under Rule 12(c), the court takes the

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facts in the light most favorable to the plaintiff and “draw[s]

all reasonably supported inferences in [her] favor.” Abraham v.

Woods Hole Ocean. Inst., 553 F.3d 114, 115 (1st Cir. 2009)

(citation omitted). “[T]o survive a Rule 12(b)(6) motion (and,

by extension, a Rule 12(c) motion) a complaint must contain

factual allegations that ‘raise a right to relief above the

speculative level.’” Gray v. Evercore Restructuring L.L.C., 544

F.3d 320, 324 (1st Cir. 2008) (citation omitted). In other

words, a Rule 12(c) motion should be granted “if the complaint

fails to state facts sufficient to establish a ‘claim to relief

that is plausible on its face.’” Id. (quoting Trans-Spec Truck

Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir.

2008)).

Background

With one exception, the following facts are drawn from

Polley’s complaint, and all of the facts described below are

taken in the light most favorable to her.

Polley worked for Harvard Pilgrim until July of 2005, when

she suffered a nervous breakdown due to work-related stress and

took a medical leave of absence. During her leave of absence,

which ended with her discharge in December of 2005, Polley

applied for short-term disability benefits through Harvard

Pilgrim’s employee-benefit program. The program administrator

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1 The settlement agreement is not attached to Polley’s

complaint, but because the complaint expressly refers to “the

terms of the settlement agreement” (Am. Compl. ¶ 18), that

agreement may be considered in its entirety in ruling on Harvard

Pilgrim’s motion. See Trans-Spec, 524 F.3d at 321 (citing

Beddall v. State St. Bank & Trust Co., 137 F. 3d 12, 16-17 (1st

Cir. 1998) (noting that “[w]hen . . . a complaint’s factual

allegations are expressly linked to – and admittedly dependent

upon – a document (the authenticity of which is not challenged),

that document effectively merges into the pleadings and the trial

court can review it in deciding a motion to dismiss under Rule

12(b)(6))”; Clorox Co. P.R. v. Proctor & Gamble Comm. Co., 228

F.3d 24, 32 (1st Cir. 2000) (holding that, in ruling on a Rule

12(b)(6) motion, a district court “may properly consider the

relevant entirety of a document integral to or explicitly relied

upon in the complaint, even though not attached to the

complaint”) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194,

1220 (1st Cir. 1996)).

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told her to apply for workers’ compensation benefits, which she

did. Harvard Pilgrim’s workers’ compensation insurer denied

Polley’s claim. She then had a hearing before the Workers’

Compensation Division of the New Hampshire Department of Labor,

which denied her claim. After Polley filed an appeal of that

decision, Harvard Pilgrim and its workers’ compensation insurer

agreed to pay her $52,000 to settle her claim.

According to the settlement agreement,1 Polley’s workers’

compensation claim was based upon allegations that “she developed

depression and anxiety with severe physical manifestations as a

result of her supervisor’s conduct and retaliatory discharge of

her.” (Def.’s Answer, Ex. A (document no. 16-2), at 1.) Under

the terms of that agreement, Polley released Harvard Pilgrim from

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any and all claims, including tort claims, that in any way arose

out of the allegation quoted above. (See id. at 1-2.) 

During the adjudication of Polley’s workers’ compensation

claim, Harvard Pilgrim “came into possession of medical records,

witness testimony and other information which clearly showed that

the Plaintiff was an extremely sensitive and fragile woman who

was very vulnerable to severe emotional injury that could be

brought upon by stress.” (Am. Compl. ¶ 20.) Notwithstanding

Harvard Pilgrim’s possession of that information, it took more

than three months after the settlement agreement was reached for

Polley to receive the payment to which she was entitled

thereunder. That delay “caused her financial worry, further

shame, distrust, a worsening of her medical condition, and other

damages.” (Id. ¶ 22.) 

During the winter and spring of 2007, while Polley was

attempting to access medical and prescription benefits provided

by Harvard Pilgrim, “she was given erroneous information and

subjected to chronic long delays and lack of response to her

inquiries and was without her prescribed medication and benefits

for her condition.” (Am. Compl. ¶ 25.) The resulting

“[u]ncertainty over her medical and therapy coverage and

prescription drug benefits caused her panic” (id. ¶ 27), and

“[t]he ongoing acts of Harvard Pilgrim caused [her] to suffer a

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relapse of her nervous breakdown, including . . . stomach pains;

hospitalization, severe anxiety and loss of sleep” (id. ¶ 28).

Based upon the foregoing, Polley sued Harvard Pilgrim in

state court for negligent infliction of emotional distress. 

After Harvard Pilgrim removed the case to this court and moved

for judgment on the pleadings, Polley filed an amended complaint

in which she re-asserted her claim for negligent infliction of

emotional distress and made a second claim, asserting an ERISA

violation. Because it was filed before Polley’s amended

complaint, Harvard Pilgrim’s motion for judgment on the pleadings

addresses only the emotional distress claim, which is asserted as

follows:

The Defendant owed the Plaintiff a greater duty of

care to handle the circumstances of Plaintiff’s forced

separation from her employment and their dealings with

her following same, and the payment of her settlement

and other benefits, than otherwise would be owed to a

person not so vulnerable.

That the Defendant negligently and repeatedly

breached its duty, and the Defendant’s breach of duty

proximately caused the Plaintiff’s damages, including

severe emotional distress with physical manifestations,

and financial loss within the jurisdictional limits of

this honorable court.

(Am. Compl. ¶¶ 32-33.)

Count I asserts that Harvard Pilgrim negligently inflicted

emotional distress on Polley by committing a “series of egregious

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2 Whether plaintiff is actually asserting such a claim is

somewhat unclear. The amended complaint refers to defendant’s

“duty of care to handle the circumstances of Plaintiff’s forced

separation from her employment.” (Am. Compl. ¶ 32.) But, in her

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acts” in its handling of: (1) the circumstances surrounding her

separation from employment; (2) the payment she was due under the

settlement of her workers’ compensation claim; and (3) her claims

for medical benefits.

Discussion

In support of its motion for judgment on the pleadings,

defendant advances five arguments: (1) Polley’s claim is barred

by the exclusive-remedy provision of the New Hampshire Workers’

Compensation Law; (2) Polley released all claims against Harvard

Pilgrim in the agreement that settled her workers’ compensation

claim; (3) to the extent her tort claim is based upon an alleged

denial of benefits or a delay in making them available, that

claim is preempted by ERISA; (4) a delay in paying settlement

proceeds or medical benefits is a breach of contract, not a tort;

and (5) Polley’s complaint does not adequately allege physical

impact or injury. Plaintiff disagrees, categorically. 

A. Circumstances Surrounding Polley’s Separation from Employment

To the extent Polley claims that Harvard Pilgrim negligently

caused her emotional distress by its handling of her separation

from employment,2 her claim is barred for two different reasons. 

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objection to defendant’s motion, plaintiff explains that: (1)

this action is based upon acts that occurred “after she left the

employ of the Defendant” (Pl.’s Obj. at 2); (2) her claim “is not

for the injuries that were the subject of the worker’s

compensation claim” (id.), which expressly mentioned her

discharge; and (3) her claim is “for injuries that occurred after

the worker’s compensation claim” (id.).

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First, it is barred by the exclusive-remedy provision of the

Workers’ Compensation Law, which provides that 

if a former employee makes a claim under this chapter

for compensation for injuries allegedly caused by . . . 

wrongful termination or constructive discharge, the

employee shall be deemed to have elected the remedies

of this chapter, and to have waived rights to recover

damages for such wrongful termination or constructive

discharge under common law or other statute.

N.H. REV. STAT. ANN. § 281-A:8, III. Because Polley’s workers’

compensation claim, as characterized in the settlement agreement,

sought recovery for injuries resulting from her discharge, she is

barred from seeking such damages in this action. Moreover, even

if a claim for damages arising from Polley’s separation from

employment were not barred by statute, it would be barred by the

bargained-for release Polley gave Harvard Pilgrim in exchange for

its settlement of her workers’ compensation claim. So, for

either of those two reasons, plaintiff has failed to state a

claim for negligent infliction of emotional distress based upon

the way in which Harvard Pilgrim handled her separation from

employment.

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B. Delay in Making Payment Under the Settlement Agreement

To the extent Polley claims that Harvard Pilgrim negligently

caused her emotional distress by delaying the payment due her

under the settlement agreement, defendant is entitled to

judgment. In New Hampshire, “[s]ettlement agreements are

contractual in nature and, therefore, are generally governed by

principles of contract law.” Poland v. Twomey, 156 N.H. 412, 414

(2007). “A breach of contract standing alone does not give rise

to a tort action.” Bennett v. ITT Hartford Group, Inc., 150 N.H.

753, 757 (2004) (explaining that “allegations of an insurer’s

wrongful refusal to settle or delay in settling a first-party

claim do not state a cause of action in tort”). And, “New

Hampshire does not recognize a cause of action for negligent

performance of a contract.” Wong v. Ekberg, 148 N.H. 369, 375

(2002); cf. Bell v. Liberty Mut. Ins. Co., 146 N.H. 190, 195

(2001) (“We also decline the plaintiff’s invitation to overrule

Lawton v. Great Sw. Fire Ins. Co., 118 N.H. 607 (1978), and

recognize a tort claim for bad faith delay or refusal to settle a

first-party insurance claim.”). Because the contract in this

case did not “involve[ ] a fiduciary duty on the part of [Harvard

Pilgrim],” Wong, 148 N.H. at 375, and “the facts constituting the

breach of contract [do not] also constitute a breach of a duty

owed by the defendant to the plaintiff independent of the

contract,” id., plaintiff has failed to state a claim for

negligent infliction of emotional distress based upon Harvard

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Pilgrim’s alleged failure to pay the settlement amount in a

timely fashion.

C. Provision of Medical Benefits

Finally, to the extent Polley claims that Harvard Pilgrim

negligently caused her emotional distress by the way it handled

her claims for medical and prescription benefits, defendant is

also entitled to dismissal. Plaintiff seeks to recover for a

“series of egregious acts by Harvard Pilgrim” (Am. Compl. ¶ 19),

which she characterizes as follows:

Throughout the Winter and Spring of 2007 . . . 

Plaintiff became embroiled in a lengthy and difficult

process of resolving denials made of her prescription

drug benefits and medical coverage through Harvard

Pilgrim, wherein she was given erroneous information

and subjected to chronic long delays and lack of

response to her inquiries and was without her

prescribed medication and benefits for her condition.

(Id. ¶ 25.) Defendant argues that because plaintiff’s claim

pertains to her receipt of benefits under a plan subject to

ERISA, it is preempted by ERISA. Plaintiff counters that her

claims are not preempted because she “is not claiming loss of

health insurance benefits or a mere delay in processing” (Pl.’s

Mem. of Law at 4), and that “[h]er claim does not require an

analysis of ERISA plan documents, but rather an analysis of the

treatment she received from Defendant’s employees, who knew or

should have know of her particular vulnerability to their acts”

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(id.). In plaintiff’s view, the fact “[t]hat part of her factual

allegations contain reference to health insurance benefits is, at

most, merely incidental to an ERISA plan and not sufficiently

related to an ERISA plan to trigger preemption.” (Id. at 5.)

While the complaint is imprecise, both parties appear to

agree that Polley’s Harvard Pilgrim medical benefits were

provided under an ERISA plan. “ERISA preempts all state laws

that ‘relate to’ employee welfare benefit plans.” Danca v.

Private Health Care Sys., Inc., 185 F.3d 1, 7 (1st Cir. 1999)

(citing 29 U.S.C. § 1144(a)). As the Danca court further

explained: 

To establish complete preemption, defendants must

show that the state cause of action falls within the

scope of ERISA § 502(a). See [Metro. Life Ins. Co. v.]

Taylor, 481 U.S. [58,] 66 [(1987)]. For this to occur,

the state law must be properly characterized as an

“alternative enforcement mechanism” of ERISA § 502(a)

or of the terms of an ERISA plan. See New York State

Conf. of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 658 (1995). ERISA § 502(a)

provides for, inter alia, a cause of action by a

participant or beneficiary “to recover benefits due . .

. under the terms of the plan, to enforce . . . rights

under the terms of the plan, or to clarify . . . rights

to future benefits under the terms of the plan.” 29

U.S.C. § 1132(a)(1)(B). It therefore follows that

state law tort suits that allege the improper

processing of a claim for benefits under an ERISAcovered plan, for example, fall within the scope of §

502(a). See Pilot Life Ins. Co. v. Dedeaux, 481 U.S.

41, 56 (1987).

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3 Plaintiff’s argument that resolution of her emotional

distress claim would not require an analysis of ERISA plan

documents is not persuasive. In order to evaluate Harvard

Pilgrim’s responses to Polley’s claims, it would be necessary to

determine, among other things, any deadlines or other time frames

set out in the plan documents. It would also be necessary, it

would seem, to know the scope of the plan’s coverage, in order to

determine whether Polley’s claims were mainstream or borderline

or meritless, which, presumably, would have a bearing on the time

reasonably necessary for Harvard Pilgrim to approve or reject

them.

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Id. at 5 (footnote and parallel citations omitted). Because that

portion of Count I directed toward the payment of medical and

prescription benefits cannot reasonably be construed as anything

other than a “state law tort suit[ ] that allege[s] the improper

processing of a claim for benefits under an ERISA-covered plan,”

id., it is preempted by ERISA.3 Thus, plaintiff has failed to

state a claim for negligent infliction of emotional distress

based upon the manner in which Harvard Pilgrim addressed her

claims for medical benefits.

Conclusion

For the reasons given, defendant’s motion for judgment on

the pleadings (document no. 7) is granted, and Count I is

dismissed. Accordingly, all that remains of this case is Count

II, plaintiff’s ERISA claim. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 10, 2009

cc: John J. LaRivee, Esq.

Martha Van Oot, Esq.

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