B. Issue new Orders of Notice reflecting the proper legal name of the Respondent,
and,
C. Grant such other relief as justice and equity require.
Respectfully submitted,

Belinda Curtis, Petitioner

By her Attorneys,
BRENNAN CARON LENEHAN &

ows 2608 (Me uae

William J. Quinn, ESq’

85 Brook Stréet

Manchester, New Hampshire 03104
Telephone: (603) 668-8300

FAX: (603) 668-1029

U\vinCotigPrendings & Court corespondentelMationAmend doe


THE STATE OF NEW HAMPSHIRE

STRAFFORD, SS SUPERIOR COURT

BELINDA CURTIS
Vv.
LIBERTY MUTUAL GROUP INSURANCE COMPANY
? PETITION FOR DECLARATORY JUDGMENT.

NOW COMES the Petitioner in the above-captioned matter, Belinda Curtis, of 14 Ross
Road, Durham, in the County of Strafford and State of New Hampshire, and complains against
Respondent, Liberty Mutual Insurance Company, of 175 Berkeley Street, Boston, in the State of
Massachusetts, stating the following:

I. - INTRODUCTION

1. This action arises out of Respondent’s denial of insurance coverage to Petitioner
pursuant to a certain policy of insurance provided by her Employer at the Petitioner’s expense,
entitled and identified as “ Liberty Mutual Group, Inc.’s Short Term Disability Policy” (the
“Policy”).

2. The Policy became effective on the Petitioner’s first day of work on January 2,
2007.

3. The Petitioner underwent cochlear implant surgery on or about May 23, 2007.

4, As a result of complications of the surgery and the Petitioner’s rehabilitation, the
Petitioner filed for Short Term Disability pursuant to the policy.

5. Respondent declared its denial of a defense and indemnity of Petitioner by letter
dated June 6, 2007.

6. The Petitioner appealed the denial to her request on or about September 18, 2007.

UwinCurstdeearaory judgment peition3. doe


Ross v. Home Ins. Co., 146 N.H. 468, 471 (2001)). “Absent a statutory provision or public
policy to the contrary, an insurance company is free to limit its liability through an exclusion
written in clear and unambiguous policy language.” Id. (citing, Wegner v. Prudential Prop. &
Cas, Ins., 148 N.H. 107, 109 (2002)). “For exclusionary language to be considered clear and
unambiguous, two parties cannot reasonably disagree about its meaning.” Id.; M. Mooney Corp.

v. U.S. Fidelity & Guaranty Co., 136 N.H. 463, 470 (1992).

33. Respondent interprets the treatment that the Petitioner received from an
audiologist in 2006 as evidence of treatment of the same condition for which she now seeks
disability. In fact, the Petitioner was fitted with a new hearing aid, to replace an older one, in
order to attempt to maximize her ability to hear. The audiologist was not in a position to assess
whether the Petitioner was a candidate for cochlear implant surgery. During the process of being
fitted with hearing aids the Audiologist did suggest that the Petitioner should look into whether
she would be a surgical candidate for cochlear implants. The treatment she received in 2006 was
not related to the cochlear implant surgery, or her recovery and rehabilitation afterwards.

34. Additionally, the Respondent found that the complications that Petitioner claimed
were “not independent of the cochlear implant procedure, as they would not have resulted had
you not undergone the surgery.” Again, the Petitioner’s reason for seeking short term disability
was for her cochlear implant surgery and the complications, which the Respondent
acknowledges, would not have occurred had she not undergone surgery

35. It appears that the Respondent has suggested that the Petitioner would not be
eligible for short term disability for any illness, disability or period of incapacity for any hearing
related issue because she was diagnosed with hearing loss prior to becoming employed by

Liberty Mutual.

awinCunlstdetarstory judgment patil doe 6


15, Incident to her divorce from her husband, Petitioner was faced with the prospect
of economic independence. She became successfully employed and rose through the ranks over
time in spite of her hearing loss.

16. Petitioner has worn hearing aids throughout her lifetime. Prior to accepting
employment with Liberty Mutual in January, 2007, Petitioner worked with an audiologist to
possibly upgrade or be fitted with a new hearing aid. During her meetings with this particular
audiologist, Petitioner was made aware of the possibility of cochlear implant surgery. For the
first time in her life, the Petitioner was encouraged that there might be a means by which she
could recover her ability to hear. Prior to the suggestion of the Audiologist that she should look
into whether she would be a candidate for cochlear implants, the Petitioner was unaware that a
possibility of regaining her hearing was even a possibility.

17. _ Petitioner began work with Liberty Mutual in January 2007. On February 1, 2007
she began to explore the possibility of whether she was a candidate for cochlear implant surgery.
She learned that she was a candidate for the surgery on March 7, 2007.

18. Petitioner informed her initial supervisor of her desire to pursue the cochlear
implant surgery in an effort to regain some of her hearing which, in turn, should make her more
productive in the work force. Petitioner’s supervisors were supportive

19. Petitioner underwent cochlear implant surgery on May 23, 2007. Within one day
of the surgery, Petitioner began to experience complications. Five or six weeks following the
initial surgery, Petitioner was fitted with the external sound processor. This part of the treatment

led to an additional complication.

‘UswinCumisteetaratory judgment petitions doe 3


MAK=11-ZUUB -1¥tDD BULL 6US boy 1UZY P.U0d

7, Respondent denied the appeal on or about October 24, 2007.
U. - PARTIES

8 Petitioner is an individual who resides at 14 Ross Road, Durham, in the County of
Strafford and State of New Hampshire.

9. Respondent is a Massachusetts Insurance corporation (i) with a principal place of
business and office located at 172 Berkeley Street, in the City of Boston and Commonwealth of
Massachusetts, (ii) a registered to do business with in the State of New Hampshire through the
New Hampshire Insurance Commission located at 21 South Fruit Strect, Suite 14, City of
Concord and State of New Hampshire, and (iii) a registered agent declared to be the New
Hampshire Insurance Commissioner.

IM, - JURISDICTION and VENUE

10. This Court has jurisdiction over the subject matter of this action pursuant to NH
RSA 491:7,

11. Venue is proper before this Count in that Petitioner resides in Durham, Strafford
County, New Hampshire. N.H. RSA 507:9,

Iv. - FACTUAL BACKGROUND

2. Respondent re-alleges and makes part hereof those allegations contained in the
foregoing Paragraphs,

13. At all times relevant to this action, Petitioner was employed by Liberty Mutual
Group, Inc,

14. Ms. Curtis (“Petitioner”) is a 49 year old woman who lost her hearing after

contracting mumps at the age of six (6). As a result, Petitioner has been deaf for most of her life,

avid try Joment pc.

w

TOTAT. P.NN2


1. Which is caused or contributed to by, or results from a Pre-Existing
Condition; and

2. Which begins in the first 12 months of a Covered Persons Effective Date,
unless he received no Treatment of the condition for twelve consecutive
months prior to his Effective Date.”

28. A “Pre-Existing Condition” is defined to mean “a condition resulting from an

injury or sickness for which the Covered Person is diagnosed or received Treatment

within twelve months prior to the Covered Person’s Effective Date.”

29, “Treatment” is defined as “consultation, care or services provided by a Physician
including diagnostic measures and taking prescription drugs and medicines.”

30. In denying coverage, Respondent argues that the Pre-Existing Condition
Exclusion of the Policy excludes coverage for the occurrence here at issue. The Respondent
cited medical records indicating that Petitioner had visited an audiologist on three occasions,
(September 13, 2006, December 8, 2006 and December 20, 2006) prior to initiating employment
with the Respondent, and therefore she had received “treatment within twelve months of “ her
effective date. The Respondent found that these previous appointments were for the “same
condition for which you are now claiming disability.”

31. Respondent’s interpretation of the Pre-Existing Condition Exclusion, and the
Petitioner’s prior treatment is unsupportable and flawed. Coverage is provided in favor of
Petitioner pursuant to the coverage of the Policy.

32. The language of an insurance policy is to be interpreted “as would a reasonable
person in the position of the insured based upon more than a casual reading of the policy as a

whole.” Trombley v. Liberty Mutual Insurance Company, 148 N.H. 748, 750-51 (2002) (citing,

‘UnwiniGuisdeelarmory judgment petiion3 doe 5


CT CORPORATION

‘AWoltersKluwer Company

TO: Eve Mihalakopoulos

Service of Process
Transmittal
03/10/2008

CT Log Number 513174576

IAAT A

Liberty Mutual Insurance Company My

175 Berkeley Street
Boston, MA 02116

MAR 11 2008

RE: Process Served in New Hampshire

FOR: Liberty Life Assurance Company of Boston (Domestic State: MA) ° 3 }

at

According to our records representation services for this entity have been discontinued in this jurisdiction.

ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:

TITLE OF ACTION:

DOCUMENT(S) SERVED:

COURTIAGENCY:

NATURE OF ACTION:

ON WHOM PROCESS WAS SERVED:
DATE AND HOUR OF SERVICE:

APPEARANCE OR ANSWER DUE:

ATTORNEY(8) / SENDER(S):

REMARKS:

ACTION ITEMS:

SIGNED:
ADDRESS:

TELEPHONE:

Belinda Curtis, Petitioner vs. Liberty Life Assurance Company of Boston, Respondent

Letter, Order of Notice, Notice of Structuring Conference, Petition, Motion, Affidavit of
ervice

Strafford County Superior Court, NH
Case # 08-E-0023

Insurance Litigation - Denial of coverage for cochlear implant surgery and
rehabilitation under Liberty Mutual Group, Inc.'s Short Term Disability Policy

CT Corporation System, Concord, NH
By Certified Mail on 03/10/2008 postmarked on 03/06/2008

On or before April 1, 2008 - Appearance // April 25, 2008 at 9:00 a.m. - Case
Structuring Conference // May 1, 2008 - Plea/Answer/Demurrer

Roger A. Sevigny, Commissioner
NH Insurance Department

21 South Fruit Street

Suite 14

Concord, NH 03304

603 271-2261

Even though our records indicate our services have been discontinued for Change of
Agent, the NH Department of Insurance shows CT as agent Process received by
Dept. of Insurance on 03/04/08 and mailed to C T on 03/06-08,

SOP Papers with Transmittal, via Fed Ex 2 Day , 798892453290

CT Corporation System
9 Capitol Street
Concord, NH 03301
603-224-2341

Page 1 of 1/DF

Information displayed on this transmittal is for GT Corporation's
record keeping purposes only and Is provided to the recipient for
quick reference. This information does not constitute a legal opinion
as to the nature of action, the amount of damages, the answer date,
or any information contained in the documents themselves,
Recipient is responsible for interpreting sald documents and for
taking appropriate action. Signatures on certified mail receipts
confirm receipt of package only, not contents,


THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS.

Before me, personally appeared the within-named, Belinda Curtis, known to me, or
satisfactorily proven to be the person whose name is subscribed to the foregoing instrument, and
made oath that the foregoing statements made by her are true and accurate to the best of her
knowledge and belief.

Dated: (= (o8 Ly M9 ou
Notary Pubiid/ Justice of the Peace

Name:
My Commission Expires:

WILLIAM J. QUINN
Notary Public / Justice of the Peace
My Commission Expires March 9, 2010

‘Usvi\Cunisdeetaratory jdgment pend doc


36. Should this Court find ambiguity in Policy provisions, the ambiguity is to be
resolved in Petitioner’s favor. “Where . . . the language of the policy reasonably may be
interpreted more than one way and one interpretation favors coverage, an ambiguity exists in the
policy that will be construed in favor of the insured and against the insurer.” EnergyNorth
Natural Gas, Inc. v. Underwriters at Lloyd’s, 150 N.H. 828, 832 (2004) (citing, High Country
Assoc. v. N.H. Ins. Co., 139 N.H. 39, 41 (1994)).

WHEREFORE, Petitioner prays this Honorable Court:

A. Enter a Declaratory Judgment finding the Policy provides coverage for Petitioner;

B. Enter an order that Petitioner is to be reimbursed for legal fees and costs (i)
incurred in bringing forth this Petition and (ii) incurred in bringing this matter forward for Court
intervention; and,

Cc. Grant such other relief as justice and equity require.

Respectfully submitted,

Dated: il g/a8 Kol, hk Cost 1b

Belinda Curtis, Petitioner

By her Attorneys,

BRENNAN CARON LENEHAN &
(i

Dated: { 23(¢ o8 el um

gl J. Ofinn7E Sq.

85 Brook S

Manchester, New Hampshire 03104
Telephone: (603) 668-8300

FAX: (603) 668-1029

U\viACunistectarmtry judgment peor) doe q


20. Petitioner learned that the process of retraining her brain to process sound was a
far larger undertaking than she had originally envisioned. Rehabilitation includes teaching
Petitioner to re-learn to hear sounds, and filter out background noise.

21. After surgery Petitioner was counseled by her employer, Liberty Mutual, to apply
for short term disability. Her claim for short term disability was for post-surgical recovery and
rehabilitation which included several set backs from surgical complications.

22. Petitioner was notified on June 26, 2007 that her request for Short Term Disability
had been denied on the basis that the disability was for a pre-existing condition.

23. Petitioner appealed the denial directly to Liberty Mutual on or about September
18, 2007. She received the company’s denial of her appeal on or about October 24, 2007.

V. - APPLICABLE POLICY PROVISIONS

24. Petitioner re-alleges and makes part hereof those allegations contained in the
foregoing Paragraphs.

25. The Liberty Mutual Short-Term Disability Plan provides for a continuation of an
employees pay when a non work-related disability due to sickness or accident keeps the
employee away from work for more than seven consecutive calendar days for up to twenty-five
weeks.

26. The plan provides that all employees and regular part-time employees (if
scheduled and regularly working 20 hours or more per week) on the US payroll are eligible on
the first day of employment.

27. — Liberty Mutual denied the Petitioner’s claim on the basis of the “Pre-Existing
Condition Exclusion” which states as follows:

“The policy will not cover any Disability or Partial Disability:

‘UAwiiCurisdelaralor jodgriem pesinon3 doc 4


THE STATE OF NEW HAMPSHIRE
Strafford Superior Court
Justice & Admin Building
County Farm Road / Box 799
Dover, NH 03820
603 742-3065

NOTICE OF STRUCTURING CONFERENCE

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
175 BERKELEY STREET
BOSTON MA 02116

- 08-E-0023 BELINDA CURTIS V. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

The Court will conduct a CASE STRUCTURING CONFERENCE in this case at the
Superior Court in Dover on: April 25, 2008 at 9:00 am.

At least ten (10) days prior to the conference, all parties shall file
summary statements necessary to support their respective claims,
defenses or counterclaims. The summary statement shall be comprehensive
and made in good faith, but shall not be admissible at trial.

Counsel, or parties if unrepresented, shall attend this conference and
shall be prepared and authorized to:

1. discuss issues in the case;

2. set schedules for discovery and other case preparation;
3. discuss settlement of the case;

4. discuss Alternative Dispute Resolution;

5 set a trial date, if appropriate.

At or immediately after the Case Structuring Conference the Court shall
issue a CASE STRUCTURING ORDER which may include:

a. a referral to Alternative Dispute Resolution;

b. a schedule for discovery and other case preparation, including
deadlines for filing motions and pretrial statements; and

c. dates for additional conferences, motion hearings, a Trial

Management Conference, jury selection and trial.
Please advise clients, witnesses, and others that it is a class B
felony to carry a firearm or other deadly weapon as defined in
RSA 625:11,V in a courtroom or area used by a court.

All counsel are required to comply with RSA 508:4-e.

BY ORDER OF THE SUPERIOR COURT
2/26/2008 Julie W. Howard, Clerk

cc: WILLIAM J. QUINN, ESQ

AOC Form SUCP040 (Rev. 03/31/2000)


Merrimack Gounty snerirs Uiice
SHERIFF SCOTT E. HILLIARD
163 North Main Street
Concord, NH 03301
Phone: 603-225-5583

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
175 BERKELEY ST
BOSTON, MA 02116

AFFIDAVIT OF SERVICE

MERRIMACK, SS. MARCH 4, 2008

I, Deputy MARK J LOOMIS, this day at /2/f an CD); summoned the
within named defendant LIBERTY LIFE ASSURANCE COMPANY BOSTON, by leaving
at the office of Roger Sevigny, Insurance Commissioner for the State of New
Hampshire its true and lawful attorney for the service of process under,
and by virtue of, Chapter 405-10 NH RSA as amended, two true and attested
copies of this PETITION/ORDER OF NOTICE and I paid said Commissioner for
the State twenty-five ($25.00) dollars as their fee for accepting service.

FEES
Service $15.00
Misc.
Pd NH INSURANCE COMMISSIONER 25.00
Postage 1.00
Travel 2.50
TOTAL: $43.50

‘uty MARK J LOOMIS
Merrimack County Sheriff's Office

A TRUE COPY ATTEST:

£-

Mark JLoom#, Deputy Sheriff



THE STATE OF NEW HAMPSHIRE
Strafford Superior Court
Justice & Admin Building

County Farm Road / Box 799 RECEIVED

Dover, NH 03820
603 742-3065 MAR O04 2008

ORDER OF NOTICE NH INSURANCE DEPARTMENT

BELINDA CURTIS v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
NO. 08-E-0023 RETURN DAY: 04/01/2008

You have been sued and named as a party in a case filed with the
Strafford Superior Court. Attached is a copy of the pleading which
began this case.

BELINDA CURTIS shall notify each Defendant of the above action by
serving the defendant(s) by March 17, 2008 with a copy of the
pleading initiating the case, orders that the Court has already
issued, and this Order in a manner allowed by law. Plaintiff shall
file with the Clerk verification of the service process by April 01,
2008.

IMPORTANT NOTICE TO LIBERTY LIFE ASSURANCE COMPANY OF BOSTON:

You must file a written appearance form with the Clerk on or before
April 01, 2008. You must also file by May 01, 2008 a plea, answer
or demurrer. Send a copy of the appearance form and any other
documents filed with the court to the attorney for the party filing
the pleading or to the party if there is no attorney. The name and
address of the attorney or the party filing the pleading is
contained in the pleading. If you do not comply with these
requirements you will be considered in default, you will not have an
opportunity to dispute the Claim(s) and the court may issue orders
in this matter which may affect you without your input.

NOTICE OF HEARING: A Hearing on the following matters is scheduled
for April 25, 2008 at 9:00 AM. in Dover:

Structuring Conference Fo

d heading will be dddresed at this
whom ex parte reliféf has\been issue_ may
Service Sf this \notice musf be

Please advise clients, witnesses, and others that it is a class B
felony to carry a firearm or other deadly weapon as defined in
RSA 625:11,V in a courtroom or area used by a court.

BY ORDER OF THE SUPERIOR COURT

« t
02/26/2008 Alle Hart,

whe W. Howard
Clerk of Court

AOC Form SUEP140 (Rev. 09/20/2001)


THE STATE OF NEW HAMPSHIRE
INSURANCE DEPARTMENT

21 Soutu Fruit Street Surre 14
Concorp, New Hampsuire 03301

Roger A. Sevigny Alexander K. Feldvebel
Commissioner Deputy Commissioner

MARCH 5, 2008

CERTIFIED MAIL
7006 0810 0003 2413 7996

CT CORPORATION SYSTEM FOR

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
9 CAPITOL STREET

CONCORD, NH 03301

Dear Sir or Madam:

You are hereby notified of the service upon me as attorney for your Company of an ORDER
OF NOTICE: NOTICE OF STRUCTURING CONFERENCE: PETITION FOR
DECLARATORY JUDGEMENT.

BELINDA CURTIS V. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, principal
defendant.

This process is brought in the SUPERIOR Court at STRAFFORD COUNTY AT DOVER,
NEW HAMPSHIRE: WRITTEN APPEARANCE TO BE FILED BY APRIL 1, 2008. YOU
MUST ALSO FILE A PLEA, ANSWER OR DEMURRER BY MAY 1, 2008. A copy of this
process is attached.

Very truly yours,
Roger A. Sevigny
Insurance Commissioner

Enclosure

‘TELEPHONE 603-271-2261 * FAX 603-271-1406 + TDD Access ReLay NH 1-800-735-2964
WessiTe: www.nh.gov/insurance


THE STATE OF NEW HAMPSHIRE

STRAFFORD, SS SUPERIOR COURT

BELINDA CURTIS {rs wo
v.

LIBERTY MUTUAL GROUP INSURANCE COMPANY Ae J
2)
MOTION TO AMEND PLEADINGS 2 ab
(AS
NOW COMES the Petitioner in the above-captioned matter, Belinda Curtis, of 14 Ross C. Browr

Road, Durham, in the County of Strafford and State of New Hampshire,, by and through hePresiding Justi

attorneys, Brennan, Caron, Lenehan and Iacopino and moves to amend her pleadings as follows:

1. This action was filed as Belinda Curtis v. Liberty Mutual Group Insurance
Company. Since filing, it has come to the Petitioner’s attention that the entity which provided
the Short Term Disability Policy at issue in this matter was written by Liberty Life Assurance
Company of Boston.

2. As such, the Petitioner seeks to amend her Pleadings so as to reflect the legal
name of the insurance company responsible for the policy at issue in this Declaratory Judgment
action.

3. No service has yet been made on the Orders of Notice reflecting the incorrect
name of the Respondent.

4, As brief statements have not been filed, nor has discovery been undertaken at this
time, no party will suffer prejudice or harm as a result of the granting of this Motion.

WHEREFORE, Petitioner prays this Honorable Court:

A. Grant this Motion to Amend the Petitioner’s Pleading to Liberty Life Assurance

Company of Boston; and

UsvisCurisPleadings & Court correspondenceMotionAmend.doe 1