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Scott E. Davis 

State Bar No. 016160 

SCOTT E. DAVIS, P.C. 

8360 E. Raintree Drive, Suite 140 

Scottsdale, AZ 85260 

Telephone: (602) 482-4300 

Facsimile: (602) 569-9720 

email: davis@scottdavispc.com

Attorney for Plaintiff Linda Price 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Linda Price, 

 Plaintiff, 

 v. 

Unum Life Insurance Company of America; 

National Oilwell Varco, L.P.; Varco Health and 

Welfare Plan, 

 Defendants. 

Case No. 

COMPLAINT 

 

 Now comes the Plaintiff Linda Price (hereinafter referred to as “Plaintiff”), by and 

through her attorney, Scott E. Davis, and complaining against the Defendants, she states: 

Jurisdiction 

 1. Jurisdiction of the court is based upon the Employee Retirement Income 

Security Act of 1974 (ERISA); and in particular, 29 U.S.C. §§1132(e)(1) and 1132(f). 

Those provisions give the district courts jurisdiction to hear civil actions brought to recover 

employee benefits. In addition, this action may be brought before this Court pursuant to 28 

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U.S.C. §1331, which gives the Court jurisdiction over actions that arise under the laws of 

the United States. 

Parties 

 2. Plaintiff is a resident of Maricopa County, Arizona. 

3. Upon information and belief, National Oilwell Varco, L.P. (hereinafter 

referred to as the “Company”) sponsored, administered and purchased a group long-term 

disability insurance policy which was fully insured by Unum Life Insurance Company of 

America (hereinafter referred to as “Unum”). The specific Unum long term disability 

group insurance policy is known as Group Policy No.: 563001-001 (hereinafter referred 

to as the "Policy"). The policy was issued in the state of Texas and is governed by Texas 

law which has banned discretionary clauses in disability policies. The Company’s 

purpose in sponsoring, administering and purchasing the Policy was to provide long term 

disability insurance for its employees. Upon information and belief, the Unum Policy may 

have been included in and part of an employee benefit plan, specifically named the Varco 

Health and Welfare Plan (hereinafter referred to as the “Plan”) which may have been 

created to provide the Company’s employees with welfare benefits. At all times relevant 

hereto, the Plan constituted an “employee welfare benefit plan” as defined by 29 U.S.C. 

§1002(1). 

4. Upon information and belief, Unum functioned as the claim administrator of 

the policy; however, pursuant to the relevant ERISA regulation, the Company and/or the 

Plan may not have made a proper delegation or properly vested fiduciary authority or power 

for claim administration in Unum. 

5. Unum operated under a conflict of interest in evaluating her long-term 

disability claim due to the fact that it operated in dual roles as the decision maker with 

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regard to whether Plaintiff was disabled as well as the payor of benefits. Unum’s conflict 

existed in that if it found Plaintiff was disabled and her claim was not subject to a policy 

limitation, it would continue to be liable to pay Plaintiff her disability benefits. 

6. The Company, Unum and the Plan conduct business within Maricopa County 

and all events giving rise to this Complaint occurred within Arizona. 

Venue 

7. Venue is proper in this district pursuant to 29 U.S.C. §1132(e)(2) and 28 

U.S.C. §1391. 

Nature of the Complaint 

8. Incident to her employment, Plaintiff was a covered employee pursuant to 

the Plan and the relevant Policy and a “participant” as defined by 29 U.S.C. §1002(7). 

Plaintiff seeks disability income benefits from the Plan and the relevant Policy pursuant to 

§502(a)(1)(B) of ERISA, 29 U.S.C. §1132(a)(1)(B), as well as any other non-disability 

employee benefits she may be entitled to from the Plan, any other Company Plan and/or the 

Company, as a result of being found disabled and entitled to continued benefits in this 

action. 

9. After working for the Company as a loyal employee, Plaintiff became 

disabled on or about March 13, 2012, due to serious medical conditions and was unable to 

work in her designated occupation as a Human Resources Representative. Plaintiff has 

remained disabled as that term is defined in the relevant Policy continuously since that date 

and has not been able to return to any occupation as a result of her serious medical 

conditions. 

10. Following her disability, Plaintiff filed a claim for short-term disability 

benefits and those benefits have been paid and exhausted. 

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11. Following the exhaustion of her short-term disability benefits, Plaintiff then 

filed for long-term disability benefits under the relevant Policy which was administered by 

Unum. Unum made every decision in Plaintiff’s long-term disability claim. 

12. Upon information and belief, the relevant Unum Policy and definition of 

disability governing Plaintiff’s long term disability claim is as follows: 

“Disability” or “Disabled” means: 

 You are limited from performing the material and substantial 

duties of your regular occupation due to your sickness or 

injury; and 

 You have a 20% or more loss in your indexed monthly 

earnings due to the same sickness or injury. 

 After 24 months of payments, you are disabled when Unum 

determines that due to the same sickness or injury, you are 

unable to perform the duties of any gainful occupation for 

which you are reasonably fitted by education, training or 

experience. 

13. In support of her claim for long-term disability benefits, Plaintiff submitted to 

Unum, medical evidence which supported her allegation that she met any definition of 

disability as defined in the relevant Policy. 

14. During the administrative review of Plaintiff’s claim, she also applied for, 

was approved and is currently receiving Social Security disability benefits through the 

Social Security Administration (hereinafter referred to as “SSA”). 

15. Plaintiff informed Unum that her claim for Social Security disability benefits 

had been approved and she submitted to Unum a copy of her September 3, 2013 Notice of 

Award from the SSA which confirmed the approval. 

16. The SSA found Plaintiff became disabled from engaging in any gainful 

occupation which may have existed in the national economy as of March 2012. The 

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evidence supporting Plaintiff’s claim was so persuasive that SSA found her disabled without 

her even needing to attend a hearing before an Administrative Law Judge. 

17. The SSA’s definition of disability is more stringent and difficult to meet than 

the aforementioned definition of disability in the Unum Policy for the first 24 months of 

disability and substantially similar to the Policy’s definition of disability after the first 24 

months of disability. Therefore, the SSA’s approval of Plaintiff's claim is relevant evidence 

for this Court to consider with regard to the reasonableness of Unum’s decision to terminate 

and deny Plaintiff’s claim and benefits. 

18. Unum initially approved Plaintiff’s long-term disability claim and paid her 

long-term disability benefits through October 20, 2014, when Unum terminated her benefits 

after concluding Plaintiff was disabled and unable to work due to a medical condition that 

was limited to 24 months of disability benefits in the Policy. Plaintiff alleges in this action 

that her claim is not subject to any Policy limitation and that Unum’s determination in this 

regard is unlawful, unreasonable and erroneous. 

19. In a letter dated October 20, 2014, Unum informed Plaintiff it was 

terminating her long-term disability benefits beyond that date after concluding her claim 

was subject to the aforementioned Policy limitation and that it had paid all the benefits 

Plaintiff was entitled to. 

20. Pursuant to 29 U.S.C. §1133, Plaintiff timely appealed Unum’s October 20, 

2014 termination of her benefits. 

21. In support of her appeal and claim for continued long term disability benefits, 

Plaintiff submitted to Unum additional medical, vocational and lay-witness evidence which 

demonstrated that she met any definition of disability set forth in the Policy and that her 

claim was not subject to any Policy limitation. 

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22. Plaintiff submitted to Unum a March 13, 2015 narrative letter authored by her 

treating board certified treating physician who opined that Plaintiff was totally disabled due 

solely to a medical condition that was not subject to a policy limitation. 

23. Plaintiff also submitted to Unum a March 9, 2015 narrative letter authored by 

her treating provider who opined she is unable to work due primarily to medical conditions 

that were not subject to a Policy limitation. 

24. Plaintiff also submitted to Unum a Functional Capacity Evaluation report 

dated January 14, 2015, wherein after an extensive several hour evaluation, a qualified 

physical therapist determined that due to her physical restrictions and limitations which are 

not subject to a Policy limitation, “...[Plaintiff] is unable to perform any categorical work at 

this time, even sedentary.” (original emphasis). 

25. Further supporting her claim, Plaintiff submitted a vocational report from a 

certified vocational expert dated April 24, 2015, who after reviewing Plaintiff’s medical 

evidence and the definition of disability and interviewing Plaintiff concluded that she was 

disabled due to medical conditions that are not subject to a policy limitation. 

26. In addition to the medical records and reports submitted to Unum, Plaintiff 

submitted two sworn affidavits from her prior co-workers and long-time friends, who both 

confirmed Plaintiff is unable to work in any occupation and that her medical conditions had 

not improved in any manner which would allow her to return to any work since her date of 

disability. 

27. Plaintiff also submitted updated medical records from each of her treating 

providers and a list of her current medications, as well as the side effects they cause and the 

impact they would have on her ability to work in any work environment. 

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28. As part of its review of Plaintiff’s claim for long term disability benefits, 

Unum obtained a medical records only "paper review" of Plaintiff’s claim from a physician 

of its choosing, Jonathan McAllister, M.D. 

29. Upon information and belief, Plaintiff alleges Dr. McAllister may be a long 

time medical consultant for the disability insurance industry and/or Unum. As a result, 

Plaintiff alleges Dr. McAllister may have an incentive to protect his own consulting 

relationship with the disability insurance industry and/or Unum by providing medical 

records only paper reviews, which selectively review or ignore evidence such as occurred in 

Plaintiff’s claim, in order to provide opinions and report(s) which are favorable to insurance 

companies and that supported the termination of Plaintiff’s benefits. 

30. In letters dated April 19, 2015 and May 14, 2015, in order to engage Unum in 

a dialogue so she could perfect any alleged deficiencies in her claim, Plaintiff requested a 

complete copy of any and all medical records only “paper reviews” from Unum and the 

opportunity to respond to these reviews as well as to provide them to her treating physicians 

for their response prior to Unum rendering a determination in her claim. 

31. In letters dated May 1, 2015 and May 15, 2015, Unum rejected Plaintiff’s 

counsel’s April 19, 2015 and May 14, 2015 requests, and informed counsel that Dr. 

McAllister had contacted her treating physician directly regarding her claim and medical 

condition. 

32. In response to questions posed by Dr. McAllister, Plaintiff’s current treating 

board certified physician marked “no” when asked whether he agreed that Plaintiff is able to 

resume full time work. 

33. Prior to rendering its final denial in Plaintiff’s claim, Unum never shared with 

Plaintiff the medical records only “paper review” authored by Dr. McAllister so she could 

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respond to the report and/or perfect her claim. Unum’s failure to provide Plaintiff with the 

opportunity to respond to Dr. McAllister’s report is an ERISA procedural violation and 

precluded a full and fair review. Unum’s action in failing to disclose the report is also a 

violation of Ninth Circuit case law. 

34. In a letter dated August 5, 2015, notwithstanding Plaintiff’s evidence which 

proved she met any definition of disability in the Policy and that her claim was not subject 

to a Policy limitation, Unum notified her that it had denied her claim for continued longterm disability benefits. In its letter, Unum concluded Plaintiff’s claim was subject to a 

policy limitation and that she was not entitled to continued benefits. In the letter, Unum 

notified Plaintiff she had exhausted her administrative levels of review and could file a civil 

action lawsuit in federal court pursuant to ERISA. 

35. Upon information and belief, Unum’s August 5, 2015 denial letter confirms it 

failed to provide a full and fair review, and in the process committed several procedural 

violations pursuant to ERISA due to among other reasons, completely failing to credit, 

reference, consider, and/or selectively reviewing and de-emphasizing most, if not all of 

Plaintiff’s reliable evidence which allowed it to terminate Plaintiff’s benefits. 

36. In evaluating Plaintiff’s claim on appeal, Unum had an obligation pursuant to 

ERISA to administer Plaintiff’s claim “solely in her best interests and other participants” 

which it failed to do. 1

 

 

1

 It sets forth a special standard of care upon a plan administrator, namely, that the 

administrator "discharge [its] duties" in respect to discretionary claims processing "solely 

in the interests of the participants and beneficiaries" of the plan, § 1104(a)(1); it 

simultaneously underscores the particular importance of accurate claims processing by 

insisting that administrators "provide a 'full and fair review' of claim denials," Firestone, 

489 U.S., at 113, 109 S. Ct. 948, 103 L. Ed. 2d 80 (quoting § 1133(2)); and it 

supplements marketplace and regulatory controls with judicial review of individual claim 

denials, see § 1132(a)(1)(B). Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2350 (U.S. 

2008). 

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37. Unum failed to adequately investigate and failed to engage Plaintiff in a 

dialogue during the appeal with regard to what evidence was necessary so Plaintiff could 

perfect her appeal in order to prove that she was disabled due to a condition which was not 

subject to a Policy limitation. Unum’s failure to investigate the claim and to engage in this 

dialogue or to obtain the evidence it believed was important to perfect Plaintiff's claim is a 

violation of ERISA and Ninth Circuit case law and a reason she did not receive a full and 

fair review. 

38. Plaintiff alleges Unum provided an unlawful review which was neither full 

nor fair and that violated ERISA, specifically, 29 U.S.C. § 2560.503-1, by erroneously 

applying a Policy limitation to Plaintiff’s claim that limited her to receiving 24 months of 

disability benefits when she was entitled to continued disability benefits; by failing to 

adequately evaluate and consider the approval of Plaintiff’s SSA claim; by failing to 

adequately investigate her claim because its reviewing medical professional was not truly 

independent; by failing to credit Plaintiff’s reliable evidence; by providing one sided 

reviews of Plaintiff’s claim that failed to consider all the evidence submitted by her and/or 

de-emphasizing medical evidence which supported Plaintiff’s claim and that a Policy 

limitation did not apply to it; by disregarding Plaintiff’s self-reported symptoms; by failing 

to consider all the diagnoses and/or limitations set forth in her medical evidence as well as 

the impact the combination of those diagnoses and impairments would have on her ability to 

work; by failing to engage Plaintiff in a dialogue so she could respond to Dr. McAllister’s 

report by submitting the necessary evidence to perfect her claim so that she could prove that 

a Policy limitation did not apply to her claim; by failing to consider the impact the side 

effects from Plaintiff's medications would have on her ability to engage in any occupation. 

 

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39. Plaintiff alleges the reason Unum provided an unlawful review which was 

neither full nor fair and that violated ERISA, specifically, 29 U.S.C. § 2560.503-1, is due to 

its conflict of interest that manifested as a result of the dual roles Unum undertook as the 

decision maker and payor of benefits in her claim. Unum’s conflict of interest provided it 

with a financial incentive to terminate Plaintiff’s claim by finding that it was subject to a 

policy limitation. Unum’s decision to apply a Policy limitation in Plaintiff’s claim saved it a 

significant amount of money. 

40. Plaintiff is entitled to discovery regarding Unum’s aforementioned conflicts 

of interest and any individual who reviewed her claim and the Court may properly weigh 

and consider extrinsic evidence regarding the nature, extent and effect of any conflict of 

interest and/or ERISA procedural violation which may have impacted or influenced 

Unum’s decision to deny her claim and terminate her benefits. 

41. With regard to whether Plaintiff meets the definition of disability set forth in 

the policy and whether her claim is subject to a policy limitation, the standard of review for 

the Court to apply is de novo, because even though the Policy unlawfully contains 

discretionary language, it was issued in Texas where National Oilwell Varco, L.P. is 

headquartered and Texas banned discretionary clauses in disability policies in 2011. In 

denying her claim, Plaintiff alleges Unum failed to provide a full and fair review pursuant to 

ERISA, and that its denial of her claim and its termination of her benefits is de novo wrong. 

If the Court concludes the Policy confers discretion and that the standard of review is for an 

abuse of discretion, Plaintiff alleges Unum’s unlawful ERISA violations as referenced 

herein are an abuse of discretion, precluded a Full and Fair review as required by law and 

are so flagrant that they justify de novo review. 

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42. As a direct result of Unum’s decision to terminate Plaintiff’s disability claim, 

she has been injured and suffered damages in the form of lost long-term disability benefits, 

in addition to other potential non-disability employee benefits she may have been entitled to 

receive through or from the Plan, from any other Company Plan and/or the Company as a 

result of being found disabled. Plaintiff believes other potential employee benefits may 

include but not be limited to, health and other insurance related coverage or benefits, 

retirement benefits or a pension, life insurance coverage and/or the waiver of the premium 

on a life insurance policy providing coverage for her and her family/dependents. 

43. Pursuant to 29 U.S.C. §1132, Plaintiff is entitled to recover unpaid benefits, 

prejudgment interest, reasonable attorney's fees and costs from Defendants. 

44. Plaintiff is entitled to prejudgment interest at the legal rate pursuant to A.R.S. 

§20-462, or at such other rate as is appropriate to compensate her for losses she incurred 

as a result of Defendants’ nonpayment of benefits. 

 WHEREFORE, Plaintiff prays for judgment as follows: 

A. For an Order that Plaintiff meets any definition of disability in the Unum 

Policy and that her disability claim is not subject to a Policy limitation; 

B. For an Order requiring Defendants to pay Plaintiff her disability benefits as 

defined in the relevant Plan and Policy, as well as any other non-disability employee 

benefits she may be entitled to as a result of being found disabled and entitled to benefits 

in this lawsuit, from the date she was first denied these benefits through the date of 

judgment and prejudgment interest thereon; 

 C. For an Order directing Defendants to continue paying Plaintiff the 

aforementioned benefits until such time as she meets the conditions for termination of 

benefits; 

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 D. For attorney’s fees and costs incurred as a result of prosecuting this suit 

pursuant to 29 U.S.C. §1132(g); and 

 E. For such other and further relief as the Court deems just and proper. 

 

DATED this 1st day of December, 2015. 

 SCOTT E. DAVIS. P.C.

 By: /s/ Scott E. Davis 

 Scott E. Davis 

 Attorney for Plaintiff

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