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Nugent v. Unum Life Insurance Company of America

November 24, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Pamela Ann Nugent, M.D., claims lifetime disability benefits from Unum Life Insurance Company of America as a result of concussive syndrome from which she suffers since an automobile struck her car in 1999. Dr. Nugent has been unable to work in her sub-specialty, neuroradiology, since that time. Unum agrees that Dr. Nugent was initially fully disabled under the terms of her policy but insists that she fully recovered by June 1, 2002, when she took a part-time job that was not in her sub-specialty. Dr. Nugent sues for a declaration of her continuing disability, full payment of past benefits from Unum plus interest, the return of premiums paid to Unum during the period of her total disability, payment now of future benefits, and recompense for Unum's alleged breach of its duty of good faith and fair dealing and alleged intentional infliction of emotion distress.

Unum moves to dismiss Count II, breach of the covenant of good faith and fair dealing; Count IV, intentional infliction of emotional distress; Count V, for punitive damages; and Count VI, for attorney fees based on Unum's alleged vexatious, wanton and oppressive handling of Dr. Nugent's claim. Unum argues that these Counts must fail as a matter of law. Unum also asks the Court to strike paragraphs 57--75, 84, 88--91, 93--94, 100, 103--127, and 132--144 of the Complaint because Dr. Nugent signed a waiver that allegedly bars her from pursuing any legal action against Unum based on any aspect of the original denial of benefits. For the reasons set forth below, Unum's motion to dismiss and to strike will be denied in part and granted in part.


A short summary of the facts will suffice to address the pending motion.

A. The Plaintiff

Pamela A. Nugent is a physician trained in neuroradiology.*fn1 Neuroradiology is a sub-specialty of radiology which concentrates on the diagnosis of abnormalities of the central and peripheral nervous system, spine, head and neck. Dr. Nugent began practicing in 1993, after a decade of education and training, and took maternity leave in 1996. Prior to her leave of absence, Dr. Nugent was working as a neuroradiologist for approximately 52 hours per week and earning $130,000 a year. During her maternity leave, Dr. Nugent enrolled in all continuing education courses necessary to reactivate her medical license following leave, and was about to reactivate her license and return to work when she was involved in an automobile accident.

On November 12, 1999, Dr. Nugent was driving alone in Montgomery County, Maryland, when another vehicle crashed into the side of her car. Dr. Nugent felt incredibly dazed right after the accident. About a week later, she began to experience migraine headaches coupled with nausea, vomiting, photophobia (extreme light sensitivity), and phonophobia (extreme sound sensitivity). Dr. Nugent did not have a history of these symptoms prior to the car accident. Over a period of years, Dr. Nugent was examined by a series of physicians, including neurologists, specialists in pain management, and neuropsychologists, all of whom essentially diagnosed "post-concussive syndrome characterized by persistent attentional problems which are impacting memory, reading concentration and sequential or multi-task activities." Compl. ¶ 30. Each physician traced the continuing migraines and other ailments to the automobile accident.

In late 2001, Dr. Nugent decided that due to her debilitating symptoms she could not return to work in her sub-specialty of neuroradiology. However, Dr. Nugent wished to work in some capacity. In June 2002, Dr. Nugent attempted to return to the medical profession, although not as a neuroradiologist, by working two or three days a week at the Naval Medical Center in Bethesda, Maryland. Because of "breakthrough migraines... probably related to high levels of situational stress" at work, Compl. ¶ 46, she was forced to resign her position on June 1, 2004. Despite undulations in the severity of her symptoms over the years, Dr. Nugent continues to suffer from severe bouts of migraines, vertigo and attention deficits. This "persistent post-concussive syndrome" causes her to suffer "the following cognitive weaknesses and symptoms: [s]hort-term concentration weakness; [m]emory weakness; [e]xecutive skills weakness; [w]ord retrieval weakness; [e]xcessive mental fatigue; [m]igraine headaches." Compl. ¶ 56.

B. The Insurance Company

Defendant Unum Life Insurance Company of America is a private insurance company which sells disability insurance. Unum is a subsidiary of Unum Group, formerly known as UnumProvident Corporation. In 1990, Dr. Nugent purchased a "Disability Income Policy" from Unum, which became effective on July 10, 1990, and remains in effect today. The Unum Policy broadly defines "total disability" and "regular occupation" and extends the benefit period to Dr. Nugent's entire lifetime. Dr. Nugent has timely paid all premiums.

Dr. Nugent contacted Unum on January 31, 2001, about her disability. She reported that she had suffered a head injury from the November 1999 automobile accident, that the symptoms of the injury were ongoing and severe, and that the symptoms prevented her from returning to work as a neuroradiologist. When she heard nothing from Unum, Dr. Nugent called on November 14, 2001, and was informed that she needed to contact Unum's office in Worcester, Massachusetts, directly.

Thereafter followed months of alleged avoidance and mishandling by Unum until a letter dated September 23, 2003, informed Dr. Nugent that Unum would pay her $58, 361 in benefits covering the period November 30, 2002, through December 1, 2003. Dr. Nugent's claim alleged that her disability began days after the automobile accident in 1999. The letter also said that Unum was continuing to investigate the claim.

In the meantime, UnumProvident, including Unum, was under a multi-state investigation by the United States Department of Labor, forty-eight states, the District of Columbia, and Samoa into widespread abuse in handling disability claims. This investigation culminated in a report, highly critical of UnumProvident and its related companies. UnumProvident, and its subsidiaries, thereafter entered into a Regulatory Settlement Agreement, paid a fifteen million dollar fine, and established a Claim Reassessment Process to allow policyholders whose claims had been denied after January 1, 1997, an opportunity to resubmit their claims for reconsideration.

By letter dated January 21, 2005, Unum advised Dr. Nugent that she had a right to have her claim reassessed through the Claim Reassessment Process. Dr. Nugent submitted a formal request to participate, which Unum acknowledged. More than a year later, on March 28, 2006, Unum informed Dr. Nugent that it was ready to begin its reassessment. By letter dated November 26, 2007, Unum announced that, upon reconsideration, it agreed that Dr. Nugent had become totally disabled following the automobile accident on November 12, 1999, but it considered the disability to have come to an end when Dr. Nugent returned to work as a part-time radiologist at the Naval Medical Center on June 1, 2002. Unum also concluded that Dr. Nugent "never had any restrictions or limitations due to any diagnosable neurological condition," Compl. ¶ 94, and that "it is quite unlikely that this claimant has any cognitive deficits on the basis of the motor vehicle accident." Id. ¶ 95. Unum awarded Dr. Nugent $125,338.71 in benefits and interest.

To be eligible for the Claim Reassessment Process, a claimant must have first signed a waiver. On March 9, 2005, and again on January 26, 2007, Dr. Nugent signed Unum's "Conditional Waiver and Release" that stated, in whole:

By choosing to participate in the Claim Reassessment Process, I hereby agree that if (and only if) the reassessment results in a reversal or other change in the prior decision denying or terminating benefits, I will not pursue any legal action to the extent (and only to the extent) such action is based on any aspect of the prior denial or termination that is reversed or changed. If I receive any additional benefits as a result of this reassessment, I hereby waive and release any right to sue UnumProvident Corporation, its insurance subsidiaries* and duly authorized representatives, for their prior failure to pay those same benefits to me. If I have already commenced legal action relating to my prior claim(s) decision, I will take such action as is necessary to stay such litigation pending the reassessment process, if the court will agree to such a stay, and I agree that if (and only if) the reassessment results in a reversal or other change in the prior decision denying or terminating benefits, then I will withdraw any litigated claim, including any extra-contractual claims, to the extent (and only to the extent) such claims are based on any aspect of the prior denial or termination that is reversed or changed. To the extent that following the reassessment there remains a complete or partial denial of benefits, my right to initiate or continue litigation regarding that portion of the ...

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